author: JENSEN, J.

text:
    BAS BROADCASTING, INC., Appellant v. FIFTH THIRD BANK, Appellee
    No. L-17-1146
    Court of Appeals of Ohio, Sixth District, Lucas County.
    Decided: April 6, 2018
    Richard M. Kerger, and Kimberly A. Conklin, Toledo, for appellant.
    Brett A. Wall and Patrick T. Lewis, Cleveland, for appellee.
    DECISION AND JUDGMENT
   JENSEN, J.

{¶ 1} Plaintiff-appellant, BAS Broadcasting, Inc. ("BAS"), appeals from the judgment of the Lucas County Court of Common Pleas granting summary judgment in favor of defendant-appellee, Fifth Third Bank ("Fifth Third"). For the reasons that follow, we affirm the decision of the trial court.

{¶ 2} BAS owns and operates several radio stations throughout northern and central Ohio. Thomas Klein is 60 percent owner, president, and chief executive officer of BAS.

{¶ 3} In 2012, BAS commenced efforts to refinance its then-existing $7.4 million debt with Gladstone Capital Corporation ("Gladstone"). According to Klein, "traditional bank financing in the post 2008/recession climate was proving to be difficult." Klein learned that "the U.S. Small Business Administration ("SBA") would likely be the only avenue available for BAS to refinance the Gladstone debt." So, Klein met with a SBA representative in Cleveland who explained that in order for BAS to get a SBA loan, BAS would have to "partner with a bank." As Klein understood it, "the bank would lend the money and the SBA would guarantee it."

{¶ 4} On October 9, 2013, BAS received a commitment letter from Huntington Bank ("Huntington") for $5 million in loans ($4.806 million of which were to be guaranteed by the SBA). This was not enough to pay off the Gladstone debt. In the months that followed, BAS's attorney successfully negotiated an agreement with Gladstone to give BAS time to obtain financing and to "accept a short payoff, or principal reduction of their note."

{¶ 5} As BAS was awaiting formal approval on the Huntington loans, BAS reached out to Fifth Third to see if it could offer a loan with more favorable terms. According to Klein, Fifth Third Senior Vice President Dirk VanHeyst informed him, by phone, that Fifth Third could offer a SBA loan with better terms than Huntington.

{¶ 6} On December 5, 2013, VanHeyst sent Klein an email containing a three page approval letter for a $5 million term loan. The letter indicates "[t]he approval is subject to certain conditions and the formal approval by the [SBA]." In his cover letter email, VanHeyst explains: "My apologies in the delay in sending this to you. Unfortunately it contains the condition of the approval of the SBA without using [Fifth Third]'s preferred lender status which will delay final approval and may not meet your needs."

{¶ 7} By the time BAS received the written offer from Fifth Third, it had received notice from Huntington that its loan had been approved by the SBA and that it would be able to close by December 30, 2013. BAS had a decision to make: it could move forward with the Huntington deal or it could continue pursuing the Fifth Third offer, the latter more appealing deal than the former. Klein knew that Fifth Third would not be able to close until January 2014. Mike Herbert (Klein's business partner and part-owner of BAS) and the attorney for BAS requested a face-to-face meeting with representatives from Fifth Third.

{¶ 8} Shortly thereafter, Klein, Herbert, Anthony Paradiso (the third and final part-owner of BAS), and their attorney sat down with Fifth Third's VanHeyst, Glenn, and Alex Gerken. After being informed that BAS had received SBA approval on the Huntington deal, Gerken appeared confident that Fifth Third could get the deal done. He went so far to inform the BAS partners and their counsel that he had "never had a SBA loan not go through." Klein averred: "Gerken said that once they decide to submit a loan, it gets approved. To prove the point, Micah Glenn took a Huntington pen from the table and snapped it in half stating we would not need it anymore."

{¶ 9} The BAS partners made their decision. They informed Huntington that they decided to go with Fifth Third because it was "offering better terms." Huntington made a counteroffer reducing the SBA loan fee and interest rate. However, the Fifth Third terms were still more favorable than Huntington's offer. The BAS partners elected to proceed with Fifth Third.

{¶ 10} Because the BAS partners had already obtained SBA approval for the Huntington loan, "the idea that the SBA would deny an application through the Fifth Third loan never occurred to [them.]" Unfortunately for the BAS partners, however, on March 4, 2014, the SBA notified Fifth Third that it was unable to approve its loan guarantee request for the following reasons: (1) "[d]isproportion of debt to tangible net worth after the loan," and (2) "Refinancing criteria not met-shift of risk to SBA." The next day, Fifth Third forwarded the SBA notice to the BAS partners.

{¶ 11} "Blindsided" by Fifth Third's notice, the BAS partners went back to Huntington. BAS closed on the Huntington loan on March 21, 2014.

{¶ 12} On July 22, 2015, BAS filed a two-count complaint against Fifth Third alleging breach of contract and fraud in the inducement. On September 23, 2016, Fifth Third moved for summary judgment on both counts. On October 19, 2016, BAS, with leave of court, amended its complaint to allege only fraud in the inducement. On October 21, 2016, BAS filed a memorandum in opposition to Fifth Third's motion for summary judgment. Fifth Third filed a reply.

{¶ 13} On June 1, 2017, the trial court issued a judgment entry granting Fifth Third's motion for summary judgment and dismissing BAS's amended complaint. This appeal followed. In its sole assignment of error, BAS asserts,

The trial court erred when it granted summary judgment in favor of appellee Fifth Third Bank because there were genuine issues of fact for a jury to decide.

{¶ 14} Our standard of review for summary judgment is the same as that of the trial court. We review cases "de novo, governed by the standard set forth in Civ.R. 56." Comer v. Risko , 106 Ohio St.3d 185, 186, 2005-Ohio-4559, 833 N.E.2d 712.

{¶ 15} Applying Civ.R. 56(C), summary judgment is appropriate where: (1) there is no genuine issue as to any material fact; (2) the moving party is entitled to judgment as a matter of law; and (3) reasonable minds can come to only one conclusion, and that conclusion is adverse to the nonmoving party. Bostic v. Connor , 37 Ohio St.3d 144, 146, 524 N.E.2d 881 (1988).

{¶ 16} Recently, the Supreme Court of Ohio explained that a successful fraudulent inducement claim requires clear and convincing proof of each of the following elements:

'(1) A representation (or concealment of a fact when there is a duty to disclose), (2) that is material to the transaction at hand, (3) made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it is true or false that knowledge may be inferred, and (4) with intent to mislead another into relying upon it, (5) justifiable reliance, and (6) resulting injury proximately caused by the reliance.' Bender v. Logan , 76 N.E.3d 336, 2016-Ohio-5317, ¶ 52 (4th Dist.), quoting Volbers-Klarich v. Middletown Mgt., Inc. , 125 Ohio St.3d 494, 2010-Ohio-2057, 929 N.E.2d 434, ¶ 27.

{¶ 17} BAS's fraudulent inducement claim is premised on its belief that Fifth Third concealed a fact that it had a duty to disclose. Specifically, BAS alleges that Fifth Third failed to inform its owners that Fifth Third's submission of the loan to the SBA "without using preferred lender status meant greater scrutiny and involved more risk that that loan would not be approved." Thus, the first question presented by this appeal is whether, as a matter of law, Fifth Third had a duty to disclose the details associated with its decision not to utilize its preferred lender status when it submitted the loan to the SBA.

{¶ 18} "[T]he duty to disclose arises when one party has information that the other party is entitled to know because of a fiduciary or another similar relation of trust and confidence between them." Strategy Group for Media v. Lowden , 5th Dist. Delaware No. 12CAE 03 0016, 2013-Ohio-1330, 2013 WL 1343614, ¶ 28. Under Ohio law, "a debtor-and-creditor relationship does not generally create a fiduciary relationship." Groob v. KeyBank , 108 Ohio St.3d 348, 351, 2006-Ohio-1189, 843 N.E.2d 1170. Absent "special circumstances," Ohio law does not recognize a fiduciary duty between a bank and its customer. Id. at 353, 2006-Ohio-1189, 843 N.E.2d 1170. "A fiduciary relationship may be created out of an informal relationship, but this is done only when both parties understand that a special trust or confidence has been reposed." Umbaugh Pole Bldg. Co. v. Scott , 58 Ohio St.2d 282, 390 N.E.2d 320 (1979), paragraph one of the syllabus.

{¶ 19} On appeal, BAS maintains that a fiduciary relationship was created because Fifth Third knew that the Huntington loan had been submitted and approved using that bank's preferred lending status. We disagree. We have found no authority in support of BAS's argument and we are compelled to transform this ordinary business banking relationship into one of a fiduciary nature.

{¶ 20} "[I]n business transactions where parties deal at arm's length, each party is presumed to have the opportunity to ascertain relevant facts available to others similarly situated and, therefore, neither party has a duty to disclose material information to the other." (Citations omitted.) Blon v. Bank One , 35 Ohio St.3d 98, 101, 519 N.E.2d 363 (1988).

{¶ 21} Here, Fifth Third's VanHeyst specifically informed BAS that it was not proceeding under the preferred lender status and that the decision would "delay final approval and may not meet your needs." There are no facts in dispute. As a matter of law, BAS had the opportunity to ascertain facts relevant to SBA's approval process for a loan not submitted under the preferred lender program.

{¶ 22} Construing the evidence in favor of BAS, we find that reasonable minds could only conclude that Fifth Third had no special relationship of trust and confidence. Because this was an ordinary business banking relationship, Fifth Third had no duty to disclose to BAS the differences between the SBA's preferred lender and certified lender programs.

{¶ 23} Alternatively, BAS argues that the trial court erred in granting summary judgment because sufficient evidence was presented that Fifth Third was untruthful when it described the consequences of the bank's decision not to proceed under the preferred lender program. BAS argues that VanHeyst's December 5, 2013 cover letter email evidences Fifth Third's "intentional deception." In that email, VanHeyst indicates that Fifth Third's submission to the SBA "without using the Bank's preferred lender status * * * will delay final approval and may not meet your needs."

{¶ 24} In response, Fifth Third denies VanHeyst's statement was "intentionally deceptive." Rather, it asserts that "as a bank in the business of making loans, Fifth Third had no incentive to invest the considerable time and resources necessary to pursue a loan it did not believe the SBA would likely approve." In hindsight, it appears that VanHeyst was mistaken in his opinion about the effect of Fifth Third's submission of a loan guarantee request to the SBA under the certified lender program.

The undisputed evidence support's Fifth Third's opinion that it worked hard to finalize this loan. BAS has submitted no evidence that Fifth Third or its employees had any reason to believe the loan would not be approved. In fact, there is no evidence that Fifth Third had ever been turned down by the SBA.

{¶ 25} A claim of fraud cannot be predicated upon representations relating to a third-party's future actions unless at the time the representation is made, the person making the representation had a reason to believe his representations were erroneous. Construing the evidence in favor of BAS, we find no justifiable inference that at the time he voiced his opinion, VanHeyst had any reason to believe Fifth Third's loan guarantee request would not be approved by the SBA.

{¶ 26} For the reasons set forth above, we find BAS's sole assignment of error not well-taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment affirmed.

Arlene Singer, J.

Thomas J. Osowik, J.

CONCUR.


source: Caselaw Access Project

author: TEODOSIO, Judge.

license: Public Domain

text:
    STATE of Ohio, Appellee v. Leondre HARRIS, Appellant
    No. 17CA011109
    Court of Appeals of Ohio, Ninth District, Lorain County.
    Dated: April 9, 2018
    JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.
    DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.
    DECISION AND JOURNAL ENTRY
   TEODOSIO, Judge.

{¶ 1} Appellant, Leondre Harris, appeals from his convictions for kidnapping and abduction in the Lorain County Court of Common Pleas. This Court affirms.

I.

{¶ 2} One night in August of 2016, Mr. Harris and his girlfriend ("A.W.") were staying at the Days Inn in Elyria to celebrate their friend's birthday. There was testimony at trial from several witnesses that Mr. Harris repeatedly referred to A.W. throughout the evening as his wife and noted that she was pregnant. A group of six workers from Indiana were also staying at the same hotel that night in two separate rooms, and they left their rooms "latched open" so they could enter and exit each room freely without being locked out. At one point, A.W. accidentally walked into one of the workers' rooms. She apologized, but asked if they wanted to share her bottle of vodka. They politely declined and she left.

{¶ 3} Later, some of the workers talked to Mr. Harris and A.W. in the parking lot while smoking and drinking together. Mr. Harris and A.W. soon began to bicker and argue with each other, and Mr. Harris got in his car to leave. A.W. attempted to get into the car as well, but Mr. Harris locked the doors and drove off without her. At some point, A.W. also left the parking lot by herself.

{¶ 4} Mr. Harris later returned to the hotel, confronted some workers in the parking lot, and demanded their room key so he could make sure A.W. was not in their room. The workers refused to hand over their room key and Mr. Harris left the area again. The workers encountered A.W. again and she appeared to be shaken, scared, and concerned for her safety. The men allowed her to stay in one of their rooms to keep her safe and calm while she called friends for a ride and a place to stay.

{¶ 5} Mr. Harris returned to the hotel once again and knocked on both of the workers' hotel doors, demanding that A.W. come outside. In the second room, the workers and A.W. all remained silent and did not open the door, but instead called 911. Mr. Harris began either banging loudly on the door or trying to kick it in, but he also decided to call 911. The police soon arrived, spoke to everyone involved, and de-escalated the situation. They determined that A.W. wished to stay with the workers and did not want to be with Mr. Harris. Mr. Harris apparently left the area once the police told him he was no longer welcome at the Days Inn that night.

{¶ 6} After the police left, about a half hour passed before Mr. Harris came back to the hotel with more friends. Mr. Harris encountered A.W. somewhere in the hotel, and forcefully pulled her out of the hotel and into a parked minivan. Some of the workers witnessed Mr. Harris "dragging" A.W. down the hallway. One of the workers called 911 again, while some of the other men went out to the parking lot and were able to free A.W. from the minivan. The police soon arrived and Mr. Harris was arrested.

{¶ 7} Mr. Harris waived his right to a jury trial and instead proceeded to a bench trial in this matter. Based on the lack of evidence presented regarding whether Mr. Harris actually shared a residence with A.W., the trial court granted Mr. Harris' Crim.R. 29 motion for acquittal as to one count of felony-five domestic violence. Based on the dismissal of the felony domestic violence charge and thus the lack of evidence presented regarding whether Mr. Harris committed these acts to facilitate the commission of a felony, the trial court also granted Mr. Harris' Crim.R. 29 motion for acquittal as to one count of kidnapping. The court denied Mr. Harris' Crim.R. 29 motion for acquittal as to the three remaining counts. After deliberation, the trial court found Mr. Harris guilty of one count of kidnapping and two counts of abduction. At sentencing, the two abduction counts merged into the kidnapping count and the trial court sentenced Mr. Harris to five years in prison for kidnapping. Because Mr. Harris had previously been convicted of a felony-one aggravated robbery in Cuyahoga County, the trial court ordered the five-year sentence in this case to be mandatory prison time.

{¶ 8} Mr. Harris now appeals from his convictions and raises two assignments of error for this Court's review.

II.

ASSIGNMENT OF ERROR ONE
THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE FINDING OF "GUILTY" AGAINST DEFENDANT-APPELLANT WITH RESPECT TO COUNTS II, III AND IV OF THE INDICTMENT, THE KIDNAPPING AND TWO ABDUCTION CHARGES, THOSE CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 9} In his first assignment of error, Mr. Harris argues that his convictions were based on insufficient evidence and against the manifest weight of the evidence. We disagree with both propositions.

Sufficiency of the Evidence

{¶ 10} "A sufficiency challenge of a criminal conviction presents a question of law, which we review de novo." State v. Spear , 9th Dist. Summit No. 28181, 2017-Ohio-169, 2017 WL 192648, ¶ 6, citing State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). "Sufficiency concerns the burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury." State v. Bressi , 9th Dist. Summit No. 27575, 2016-Ohio-5211, 2016 WL 4141159, ¶ 25, citing Thompkins at 386, 678 N.E.2d 541. "The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt." Id. , quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. However, "we do not resolve evidentiary conflicts or assess the credibility of witnesses, because these functions belong to the trier of fact." State v. Hall , 9th Dist. Summit, 2017-Ohio-73, 80 N.E.3d 1163, ¶ 10.

{¶ 11} Mr. Harris was convicted of kidnapping under R.C. 2905.01(A), which states in relevant part: "No person, by force * * * shall remove another from the place where the other person is found or restrain the liberty of the other person, for any of the following purposes: * * * (3) To terrorize, or to inflict serious physical harm on the victim * * *." " 'Force' means any violence, compulsion, or constraint physically exerted by any means upon or against a person or thing." R.C. 2901.01(A)(1). "A person acts purposely when it is the person's specific intention to cause a certain result, or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is the offender's specific intention to engage in conduct of that nature." R.C. 2901.22(A). "Terrorize" is not defined in the Revised Code, but Ohio courts have defined it according to its common usage, which is " 'to fill with terror or anxiety.' " State v. Suggs , 9th Dist. Summit Nos. 27812, 27865, & 27866, 2016-Ohio-5692, 2016 WL 4649486, ¶ 16, quoting State v. Chasteen , 12th Dist. Butler No. CA2007-12-308, 2009-Ohio-1163, 2009 WL 683707, ¶ 21, quoting State v. Eggleston , 11th Dist. Lake No. 2008-L-047, 2008-Ohio-6880, 2008 WL 5389703, ¶ 30, fn. 1.

{¶ 12} Mr. Harris was also convicted of abduction under R.C. 2905.02(A), which states in relevant part: "No person, without privilege to do so, shall knowingly * * * (1) [b]y force * * *, remove another from the place where the other person is found [or] (2) [b]y force * * *, restrain the liberty of another person under circumstances that create a risk of physical harm to the victim or place the other person in fear * * *." "A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature." R.C. 2901.22(B).

{¶ 13} As to his kidnapping conviction, Mr. Harris argues that the State did not introduce any evidence of a purpose to terrorize or to inflict serious physical harm, as there was no evidence of physical harm and A.W. stood by Mr. Harris' vehicle after the second disturbance. Mr. Harris claims that he simply wanted A.W. to leave the hotel with him and their friend, while she wanted to remain and "party" with the workers. As to his abduction convictions, he argues that the State did not introduce any evidence of force or threat, as the surveillance video does not show Mr. Harris dragging A.W. away, but instead only shows Mr. Harris with his arm around A.W. as they walked into the parking lot together. He further argues that there was no evidence of physical harm, as the police officers who responded to the scene did not testify that they observed any injuries on A.W.

{¶ 14} Upon review of the record, we conclude that the State presented sufficient evidence at trial, if believed, to establish that Mr. Harris committed the offenses of kidnapping and abduction. One of the workers ("David") testified that when some of the men were in the parking lot smoking and drinking with Mr. Harris and A.W., Mr. Harris made some crude comments about how he would make A.W. perform oral sex on all of the men and how he would make them all pay to have sexual intercourse with her. David testified that these comments upset A.W. and she began bickering and arguing with Mr. Harris. Mr. Harris got into his vehicle and A.W. tried to join him, but he locked the doors and drove off without her. The workers' supervisor ("Matthew") testified that, on his way back to his room, he encountered A.W., who was scared, nervous, worried, twitching, shaking, and crying hysterically. Matthew offered to let her stay in his room or to drive her to wherever she would like to go. Another worker ("Aaron") testified that when A.W. arrived at the hotel room, she was scared and crying with makeup running down her face. Aaron testified that "she was like, please hide me, please hide me, he's going to kill me this time." He also testified that A.W. said she was scared and "not feeling safe." Matthew testified that, once inside the room, A.W. would pace back and forth, then sit up against the door, then look out the window. Aaron testified that A.W. was scared, "freaked out," and "looked like she was fearing for her life."

{¶ 15} Several workers testified that when Mr. Harris returned again to knock on the doors to their rooms and demand that A.W. come outside, everyone in the second room remained quiet and did not answer him. Matthew called 911 and Aaron testified that Mr. Harris began "kicking the crap out of the door." The 911 call was entered into evidence at trial. Loud banging noises can be heard in the background and are acknowledged by both Matthew and the 911 dispatcher in the call. The police soon arrived and Officer Joseph Figula Jr. testified that A.W. was shaking, frightened, and extremely nervous. A.W. indicated to the officer that she did not want to go with Mr. Harris and wished to stay with the workers instead. Officer Figula told Mr. Harris and his friend that A.W. wanted to be left alone and she did not want to be bothered by them anymore. After speaking to hotel staff, he also informed Mr. Harris and his friend that they were no longer welcome at the Days Inn that night and they needed to leave.

{¶ 16} When Mr. Harris and his friends returned to the Days Inn again later that night, the workers soon became aware that Mr. Harris had found A.W. Matthew testified that while he was trying to call 911 again, he saw Mr. Harris dragging A.W. out of one of the hotel entrances and into the parking lot. He further testified that A.W. was struggling, wiggling, panicking, and trying to get away, but she could not move very much because Mr. Harris had a hold of her hair. The 911 call was played at trial and entered into evidence. Matthew testified that the woman heard screaming in the background of the phone call is A.W. Aaron and David also testified that they saw Mr. Harris dragging A.W. Aaron testified that he could hear A.W. yelling, "[S]top, stop, stop, you're hurting me, stop" and "[D]on't, don't do this, don't do this." David testified that Mr. Harris was "basically manhandling her" and was forcing her to go against her will.

{¶ 17} A surveillance video from a hallway inside of the Days Inn was introduced as evidence at trial. The video does not depict, as Mr. Harris suggests, innocuous footage of him with his arm around his girlfriend as the couple walk out of the hotel consensually together. The video footage is much more chilling than Mr. Harris would have us believe, and instead shows him restraining A.W. in some type of headlock with his right arm as he forcibly pulls or drags her alongside of him down the hallway and through the doorway leading to the parking lot. Mr. Harris' left arm may also be possibly involved in his restraint of A.W., but it cannot be completely seen from the security camera's vantage point. Although A.W. is able to remain on her feet while being forced down the hallway, she is unmistakably resisting Mr. Harris as she struggles against him to no avail. She appears to make a couple futile efforts to grab the stair railing banisters and the door as she is forced out of the hotel and into the parking lot. During their intense struggle down the hallway, the two manage to kick over the entire end of a long doormat as they pass over it. Furthermore, upon viewing the video during his direct examination at trial, Aaron testified: "Actually, that was a little bit nicer than what [Mr. Harris] was doing when I saw him in the [other] hallway."

{¶ 18} Aaron also testified that, once in the parking lot, he could see Mr. Harris dragging and hitting A.W. while she was kicking, screaming, and telling him to let her go. David testified that Mr. Harris shoved A.W. into the van and Matthew testified that "[s]he was drug (sic) into the van." Some of the workers went into the van and brought her back out. Matthew testified on cross-examination that A.W. was yelling at Mr. Harris and telling him to leave her alone.

{¶ 19} After a series of heated incidents in the parking lot, in which the workers managed to separate A.W. from Mr. Harris, A.W. is seen on the hallway surveillance video re-entering the hotel alone. Ten seconds later, Mr. Harris is seen running into the hotel after her, immediately followed by one of the workers. Mr. Harris is seen pulling A.W. by her arms back toward the door to the parking lot before several workers intervene. The police soon arrive and Officer Paige Mitchell enters the hallway. Officer Mitchell testified that when she arrived on scene, she observed A.W. backing away from Mr. Harris when he approached her in the hallway, and that A.W. was upset, frustrated, crying, and pacing. Officer Figula also testified that A.W. was visibly upset, distraught, and appeared terrified at the scene. While Mr. Harris is correct that no police officers testified as to observing any physical injuries on A.W., the existence of physical injuries is not an element of either kidnapping or abduction that the State needs to prove. See State v. Browder , 8th Dist. Cuyahoga No. 99727, 2014-Ohio-113, 2014 WL 197862, ¶ 23.

{¶ 20} After reviewing the evidence contained in the record in a light most favorable to the prosecution, we conclude that the State satisfied its burden of production and presented sufficient evidence, if believed, that Mr. Harris committed the offenses of kidnapping and abduction. We further conclude that any rational trier of fact could have found all of the essential elements of those offenses proven beyond a reasonable doubt, as ample evidence was presented to prove that Mr. Harris forcibly removed A.W. from the Days Inn hotel and restrained her liberty to terrorize her and place her in fear and in risk of physical harm.

Manifest Weight of the Evidence

{¶ 21} Mr. Harris also argues that his convictions are against the manifest weight of the evidence. This Court has stated:

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.

{¶ 22} State v. Otten , 33 Ohio App.3d 339, 340, 515 N.E.2d 1009 (9th Dist.1986). "[W]hen reversing a conviction on the basis that it was against the manifest weight of the evidence, an appellate court sits as a 'thirteenth juror,' and disagrees with the factfinder's resolution of the conflicting testimony." State v. Tucker , 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, 2006 WL 3783511, ¶ 5. This discretionary power "should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also Otten at 340, 515 N.E.2d 1009.

{¶ 23} Although Mr. Harris claims that his convictions are against the manifest weight of the evidence, he does not present or develop any meaningful argument in support of his claim. He only states: "Even assuming arguendo that the evidence presented at trial concerning all of the essential elements of those three charged offenses was somehow sufficient, an independent re-weighing of the same evidence demonstrates that the evidence weighs heavily against the convictions." "[S]ufficiency and manifest weight are two separate, legally distinct arguments." State v. Vicente-Colon , 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, 2010 WL 5276993, ¶ 20. Mr. Harris has not challenged the evidence set forth by the State as "unreliable or lacking credibility." See State v. Smith , 9th Dist. Summit No. 27877, 2016-Ohio-7278, 2016 WL 5930210, ¶ 16. Accordingly, this Court will not develop a manifest weight argument on his behalf. See State v. Sadeghi , 9th Dist. Wayne No. 14AP0051, 2016-Ohio-744, 2016 WL 769109, ¶ 32. See also Cardone v. Cardone , 9th Dist. Summit Nos. 18349 and 18673, 1998 WL 224934, *8 (May 6, 1998) ("If an argument exists that can support this assignment of error, it is not this [C]ourt's duty to root it out").

{¶ 24} Mr. Harris' first assignment of error is overruled.

ASSIGNMENT OF ERROR TWO
THE TRIAL COURT VIOLATED THE DEFENDANT-APPELLANT'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW, WHERE IT FAILED TO COMPLY WITH R.C. 2938.11(F) BY NOT ANNOUNCING IN OPEN COURT THE VERDICT, OR FINDINGS DETERMINED BY THE JUDGE, IN DEFENDANT-APPELLANT'S BENCH TRIAL WHICH CONCLUDED ON NOVEMBER 16, 2016.

{¶ 25} In his second assignment of error, Mr. Harris argues that the trial court violated his due process rights by failing to comply with R.C. 2938.11(F), and announcing its verdict in a journal entry instead of in open court. We disagree.

{¶ 26} A trial court's application of a statute involves a question of law, which this Court reviews de novo. State v. West , 9th Dist. Lorain No. 04CA008554, 2005-Ohio-990, 2005 WL 544820, ¶ 33. "When applying the de novo standard of review, this Court gives no deference to the trial court's legal determinations." Id.

{¶ 27} At the conclusion of Mr. Harris' bench trial on November 16, 2016, the trial court stated on the record: "I will be reviewing [the exhibits] this afternoon and then proceeding with deliberations this afternoon. * * * I should be able to have a decision by the end of the afternoon, and I'll send entries to counsel." Mr. Harris did not object to the trial court's comment that it intended to announce its verdict by journal entry. On the following day, November 17, 2016, the court filed a journal entry finding Mr. Harris guilty of the one kidnapping charge and two abduction charges and further setting a status hearing for November 21, 2016, to determine a sentencing date. Nothing in the record suggests that Mr. Harris, at any time, objected or filed any motion for the verdict to be announced in open court. At his sentencing hearing on January 9, 2017, Mr. Harris read a prepared, written statement to the trial court, in which he mentioned for the first time on the record the court's failure to comply with R.C. 2938.11(F), along with numerous other issues, and made an oral motion to dismiss the case. The trial court denied the oral motion to dismiss, restated its verdicts, and proceeded with sentencing.

{¶ 28} R.C. 2938.11(F) states:

Any verdict arrived at by the jury, or finding determined by the judge or magistrate in trial to the court, shall be announced and received only in open court as soon as it is determined. Any finding by the judge or magistrate shall be announced in open court not more than forty-eight hours after submission of the case to him.

{¶ 29} "[T]he purpose of [ R.C. 2938.11(F) ] is to provide for the prompt disposition of criminal cases where there is a bench trial." Sheffield v. Nieves , 52 Ohio App.2d 187, 188, 368 N.E.2d 1262 (9th Dist.1976). Nevertheless, R.C. 2938.11(F) is not mandatory in nature, but only directory. Id. , citing State ex rel. Turrin v. Tuscarawas Cty. Court , 5 Ohio St.2d 194, 196, 214 N.E.2d 670 (1966). " R.C. 2938.11(F) which states a court shall announce any verdict in open court does not proscribe mandatory procedure by the court but, rather, it is just a directory guideline suggested by the legislature." City of Cleveland v. Criss , 8th Dist. Cuyahoga No. 72862, 1998 WL 855630, *10 (Dec. 10, 1998). See also State ex rel. Martin v. Mannen , 113 Ohio St.3d 373, 2007-Ohio-2078, 865 N.E.2d 898, ¶ 6 ("The time requirement in R.C. 2938.11(F) * * * is directory, not mandatory"). "[T]he statute itself provides no sanction or consequences for the failure to comply with it." State v. McBride , 7th Dist. Harrison Nos. 360 & 361, 1981 WL 4794, *7 (Oct. 6, 1981) ; but see Sheffield at 188, 368 N.E.2d 1262 (holding that a defendant is entitled to a judgment within a reasonable time , and a judgment of guilt approximately seven months after the defendant rests his case is a denial of due process). "Although 'judges should strive to comply with these directory guidelines,' R.C. 2938.11(F) does not provide a clear legal right to the vacation of convictions based on noncompliance with that provision." State v. Doughman , 4th Dist. Adams, 2017-Ohio-4253, 92 N.E.3d 30, ¶ 12, quoting Martin at ¶ 6.

{¶ 30} As R.C. 2938.11(F) has repeatedly been held by courts to be directory in nature, we cannot say that the trial court committed reversible error in this particular instance. The trial court sufficiently complied with the statute and promptly announced its verdict one day after Mr. Harris' trial concluded. Mr. Harris has failed to show how he suffered any prejudice by being informed of the court's verdict in a journal entry rather than in open court. See State v. Cuiksa , 7th Dist. Belmont No. 84-B-5, 1985 WL 10366, *1 (Jan. 17, 1985) (concluding that appellants suffered no prejudice resulting from the trial court not announcing its findings in open court). See also State v. Camp , 6th Dist. Wood No. WD-78-3, 1978 WL 214724, *2 (May 5, 1978) ("[I]n the absence of a legislative sanction for failure to comply with R.C. 2938.11(F), and in the absence of evidence indicating that the delay herein was unreasonable or prejudicial, we cannot say that defendant wa[s] denied her due process rights"). The trial court also set an additional status hearing five days after trial concluded, but Mr. Harris never objected or demanded oral pronouncement of his verdict at any time prior to, during, or after that status hearing. See State v. Deckard , 5th Dist. Stark No. 1999CA00276, 2000 WL 874388, *2 (June 19, 2000) ("If the accused does not demand a decision by filing an objection or a motion, then the accused should not be permitted to appeal on the grounds of a late judgment entry"). See also Martin at ¶ 6. It was only at his sentencing hearing, 53 days after his trial concluded, that Mr. Harris first brought this issue to the court's attention. Even then, Mr. Harris did not demand oral pronouncement of the verdict in open court, but only informed the court that it failed to comply with the statute. After some discussion at the sentencing hearing, the court reiterated its guilty verdicts in open court:

THE COURT: Defendant appeared in [c]ourt for sentencing after having pled not guilty to and been found guilty by the [c]ourt after a court trial of the following charges:
Count Two, kidnapping, a Felony 1.
Count Three, abduction, a Felony 3.
And Count Four, abduction, a Felony 3.

{¶ 31} We conclude that, in this particular case, Mr. Harris suffered no prejudice resulting from the trial court's failure to initially announce its verdict in open court. See Cuiksa , 1985 WL 10366, at *1 ; Camp , 1978 WL 214724, at *2-3. Moreover, by failing to object, failing to motion the court, and failing to demand in any way that the court orally announce its verdict in open court, Mr. Harris effectively acquiesced to the trial court's method of announcing its verdict via journal entry and setting a status hearing. See Deckard , 2000 WL 874388, at *2. Even if we determined that the trial court erred by first announcing its verdict in a journal entry, any such error was plainly rectified when the court orally announced its verdict in open court at the sentencing hearing. See Criss , 1998 WL 855630, at *10-11 (concluding that the court did not err under R.C. 2938.11(F) when it announced each decision and sentence at the sentencing hearing). Consequently, as the trial court sufficiently complied with R.C. 2938.11(F), we cannot conclude that it committed reversible error in this matter.

{¶ 32} Mr. Harris' second assignment of error is overruled.

III.

{¶ 33} Mr. Harris' first and second assignments of error are overruled. The judgment of the Lorain County Court of Common Pleas is affirmed.

Judgment affirmed.

SCHAFER, P.J.

CALLAHAN, J.

CONCUR.


author: Wise, Earle, J.

text:
    Diana KING, Administrator of the Estate of Mary Minor, Deceased, Plaintiff-Appellant v. WINGS AND BREWS, INC. dba Brown Derby Roadhouse, Defendant-Appellee
    No. 17CA64
    Court of Appeals of Ohio, Fifth District, Richland County.
    DATE OF JUDGMENT: April 12, 2018
    BRYON CORLEY, 28 Park Avenue West, Suite 1002, Mansfield, OH 4490, for Plaintiff-Appellant.
    KIRK E. ROMAN, 50 South Main Street, Suite 502, Akron, OH 44308, for Defendant-Appellee.
    JUDGES: Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Earle E. Wise, Jr., J.
   Wise, Earle, J.

{¶ 1} Plaintiff-Appellant, Diana King, Administrator of the Estate of Mary Minor, Deceased, appeals the June 26, 2017 order and judgment entry of the Court of Common Pleas of Richland County, Ohio, granting summary judgment to Defendant-Appellee, Wings and Brews, Inc. dba Brown Derby Roadhouse.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On March 25, 2012, Ms. Minor, age 83, drove herself to the Brown Derby Roadhouse restaurant to have dinner with her daughter, appellant herein, and others. Ms. Minor walked into the restaurant with the assistance of a cane. Upon leaving the restaurant, Ms. Minor fell and sustained injuries, requiring surgeries. Thereafter, she died on July 7, 2013, caused by cardiac arrest due to acute myocardial infarction.

{¶ 3} Prior to her death, Ms. Minor told appellant there were peanuts on the floor of the restaurant in the area where she had fallen. On February 10, 2016, appellant filed a complaint against appellee claiming negligence and wrongful death. The complaint alleged Ms. Minor, as a business invitee, slipped on an oily substance on the floor. This complaint was a refiling of a previous complaint that appellant had voluntarily dismissed. On May 25, 2017, appellee filed a motion for summary judgment, arguing there was no evidence of what caused Ms. Minor to fall. By order and judgment entry filed June 26, 2017, the trial court granted the motion.

{¶ 4} Appellant filed an appeal and this matter is now before this court for consideration. Assignment of error is as follows:

I

{¶ 5} "THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT

IN FAVOR OF APPELLEE WINGS AND BREWS, INC. REGARDING DEFENDANT'S NEGLIGENCE AS THERE ARE GENUINE ISSUES OF MATERIAL FACT WHICH PRECLUDE THE GRANTING OF SUMMARY JUDGMENT IN APPELLEE'S FAVOR."

I

{¶ 6} In her sole assignment of error, appellant claims the trial court erred in granting summary judgment to appellee. We disagree.

{¶ 7} Summary Judgment motions are to be resolved in light of the dictates of Civ.R. 56. Said rule was reaffirmed by the Supreme Court of Ohio in State ex rel. Zimmerman v. Tompkins, 75 Ohio St.3d 447, 448, 663 N.E.2d 639 (1996) :

Civ.R. 56(C) provides that before summary judgment may be granted, it must be determined that (1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing such evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the party against whom the motion for summary judgment is made. State ex. rel. Parsons v. Fleming (1994), 68 Ohio St.3d 509, 511, 628 N.E.2d 1377, 1379, citing Temple v. Wean United, Inc. (1977), 50 Ohio St.2d 317, 327, 4 O.O3d 466, 472, 364 N.E.2d 267, 274.

{¶ 8} As an appellate court reviewing summary judgment motions, we must stand in the shoes of the trial court and review summary judgments on the same standard and evidence as the trial court. Smiddy v. The Wedding Party, Inc., 30 Ohio St.3d 35, 506 N.E.2d 212 (1987).

{¶ 9} As explained by this court in Leech v. Schumaker, 5th Dist. Richland No. 15CA56, 2015-Ohio-4444, 2015 WL 6460079, ¶ 13 :

It is well established the party seeking summary judgment bears the burden of demonstrating that no issues of material fact exist for trial. Celotex Corp. v. Catrett (1986), 477 U.S. 317, 330, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The standard for granting summary judgment is delineated in Dresher v. Burt (1996), 75 Ohio St.3d 280 at 293 [662 N.E.2d 264] : " * * * a party seeking summary judgment, on the ground that the nonmoving party cannot prove its case, bears the initial burden of informing the trial court of the basis for the motion, and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact on the essential element(s) of the nonmoving party's claims. The moving party cannot discharge its initial burden under Civ.R. 56 simply by making a conclusory assertion the nonmoving party has no evidence to prove its case. Rather, the moving party must be able to specifically point to some evidence of the type listed in Civ.R. 56(C) which affirmatively demonstrates the nonmoving party has no evidence to support the nonmoving party's claims. If the moving party fails to satisfy its initial burden, the motion for summary judgment must be denied. However, if the moving party has satisfied its initial burden, the nonmoving party then has a reciprocal burden outlined in Civ.R. 56(E) to set forth specific facts showing there is a genuine issue for trial and, if the nonmovant does not so respond, summary judgment, if appropriate, shall be entered against the nonmoving party." The record on summary judgment must be viewed in the light most favorable to the opposing party.
Williams v. First United Church of Christ (1974), 37 Ohio St.2d 150 [309 N.E.2d 924].

{¶ 10} "[I]n order to establish actionable negligence, one must show the existence of a duty, a breach of the duty, and an injury resulting proximately therefrom." Menifee v. Ohio Welding Products, Inc., 15 Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). As a business invitee, appellee owed Ms. Minor a duty of ordinary care to maintain the premises in a reasonably safe condition. Paschal v. Rite Aid Pharmacy, Inc., 18 Ohio St.3d 203, 480 N.E.2d 474 (1985). "An occupier of premises is under no duty to protect a business invitee against dangers which are known to such invitee or are so obvious and apparent to such invitee that he may reasonably be expected to discover them and protect himself against them." Sidle v. Humphrey, 13 Ohio St.2d 45, 233 N.E.2d 589 (1968), paragraph one of the syllabus.

{¶ 11} Specifically, appellant argues genuine issues of material fact exist as to whether the hazard created by the peanuts on the floor was open and obvious and as a result, whether appellee breached its duty of care owed to Ms. Minor. Appellant's Brief at 7.

{¶ 12} The deposition of appellant was presented to the trial court for its Civ.R. 56 review. Appellant stated her mother drove herself to the restaurant and although she used a cane for assistance, she had no trouble walking to the table. King depo. at 23, 25-26, 29, 35, 38. Appellant did not see anything on the floor on the way to the table. Id. at 39, 506 N.E.2d 212. During the meal, Ms. Minor went to the restroom twice by herself without incident. Id. at 41, 506 N.E.2d 212. Upon leaving the table to exit the restaurant, appellant walked behind her mother. Id. at 45, 233 N.E.2d 589. Appellant and Ms. Minor then linked arms and walked through the interior door toward the exterior door when Ms. Minor fell. Id. at 45, 49, 55, 233 N.E.2d 589. Appellant could not say if anything was on the floor between the interior door and the exterior door. Id. at 55, 233 N.E.2d 589. Appellant did not know what caused her mother to fall. Id. at 56, 233 N.E.2d 589. Appellant was the only witness to the fall. Id. at 57, 233 N.E.2d 589. Employees came after the fall. Id. at 57-58, 233 N.E.2d 589. An ambulance arrived and transported Ms. Minor to the hospital. Id. at 58, 233 N.E.2d 589. Sometime later, Ms. Minor told appellant she believed peanuts were on the floor. Id. at 59-60, 233 N.E.2d 589. Appellant admitted to not seeing any peanuts on the floor. Id. at 60-61, 233 N.E.2d 589. The trial court was not presented with any affidavits from others in attendance on the day in question (patrons, employees, ambulance personnel) regarding the existence of peanuts on the floor. There was no indication that this was a restaurant that customarily had peanuts and/or peanut shells on the floor.

{¶ 13} In its June 26, 2017 order and judgment entry granting appellee's motion for summary judgment, the trial court determined there was "no sworn evidence that the peanut was there."

{¶ 14} Upon review, we agree with the trial court. There is no sworn evidence that peanuts were on the floor and if so, whether they caused Ms. Minor's fall. Given the Civ.R. 56 evidence presented, we find the trial court did not err in granting summary judgment to appellee.

{¶ 15} The sole assignment of error is denied.

{¶ 16} The judgment of the Court of Common Pleas of Richland County, Ohio is hereby affirmed.

Gwin, J. and Delaney, J. concur.


text:
    IN RE Z.B., a Minor (People State of Illinois, respondent, v. S.J.B., petitioner).
    No. 123987
    Supreme Court of Illinois.
    October 12, 2018
    Petition for Leave to Appeal Denied.


author: Neville, J. took no part.

text:
    IN RE O.S., a Minor (People State of Illinois, respondent, v. O.S., petitioner).
    No. 123920
    Supreme Court of Illinois.
    October 05, 2018
    Petition for Leave to Appeal Denied.
   Neville, J. took no part.


text:
    IN RE V.H., a Minor (People State of Illinois, respondent, v. V.H., petitioner).
    No. 123952
    Supreme Court of Illinois.
    October 04, 2018
    Petition for Leave to Appeal Denied.


text:
    In the Interest of JOSE A., a Minor (People State of Illinois, respondent, v. JOSE A., etc., petitioner).
    No. 123906
    Supreme Court of Illinois.
    October 04, 2018
    Petition for Leave to Appeal Denied.


text:
    IN RE K.E., a Minor (People State of Illinois, respondent, v. K.E., petitioner).
    No. 124069
    Supreme Court of Illinois.
    October 30, 2018
    Petition for Leave to Appeal Denied.


text:
    IN RE A.L., a Minor (People State of Illinois, respondent, v. A.L., petitioner).
    No. 124029
    Supreme Court of Illinois.
    October 18, 2018
    Petition for Leave to Appeal Denied.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Martize M. SMOLLEY, Defendant-Appellant.
    Appeal No. 3-15-0577
    Appellate Court of Illinois, Third District.
    Opinion filed March 2, 2018 Rehearing denied April 16, 2018
    Michael J. Pelletier, Thomas A. Lilien, and Josette Skelnik, of State Appellate Defender's Office, of Elgin, for appellant.
    Jerry Brady, State's Attorney, of Peoria (Patrick Delfino, Lawrence M. Bauer, and Dawn Duffy, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
   JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 Defendant Martize M. Smolley was charged with first degree murder and unlawful possession of a firearm when he was 15 years old. He was automatically transferred to adult court, where a bench trial was held. Defendant was convicted of two counts of felony murder and one count of unlawful possession of a firearm. Defendant was originally sentenced to natural life in prison but received a new sentencing hearing, where the trial court sentenced him to a total of 65 years' imprisonment. Defendant appeals, arguing that he is entitled to a discretionary transfer hearing and a new sentencing hearing. We deny defendant's request for a discretionary transfer hearing but vacate his sentence and remand for a new sentencing hearing.

¶ 2 FACTS

¶ 3 In 2004, when defendant Martize M. Smolley was 15 years old, he was charged with unlawful possession of a firearm ( 720 ILCS 5/24-3.1(a)(1) (West 2004) ) and four counts of first degree murder (id. § 9-1(a)(2) & (3) ) for killing Kelly Houser and her daughter, Amy Allen. He was automatically transferred to adult court, pursuant to section 5-130 of the Juvenile Court Act of 1987 (Act) ( 705 ILCS 405/5-130 (West 2004) ).

¶ 4 In 2005, defendant's bench trial was held. At the conclusion of the trial, the court found defendant guilty of unlawful possession of a firearm and two counts of felony murder. The trial court sentenced defendant to a mandatory term of natural life in prison. Defendant appealed his sentence, arguing that it violated the proportionate penalties clause of the Illinois Constitution. We affirmed defendant's sentence. See People v. Smolley , 375 Ill. App. 3d 167, 313 Ill.Dec. 713, 873 N.E.2d 8 (2007).

¶ 5 In 2008, defendant filed a postconviction petition, again challenging his sentence and also alleging ineffective assistance of his trial and appellate counsel. The State filed a motion to dismiss the petition, which the trial court granted.

¶ 6 In 2013, defendant filed a pro se successive postconviction petition, arguing that his mandatory natural life sentence was unconstitutional. The trial court initially denied the petition, and defendant filed a motion to reconsider. The trial court granted defendant's motion to reconsider, granted defendant leave to file a successive postconviction petition, and appointed counsel to represent defendant. In 2015, the State conceded that defendant's natural life sentence was unconstitutional and that a new sentencing hearing should be held.

¶ 7 A new sentencing hearing was held in August 2015. At the conclusion of the hearing, the trial court stated:

"Okay. I've considered the presentence investigation report, the evidence and arguments presented, the statement made by the Defendant. I've considered the statutory matters in aggravation and mitigation, the history and character of the Defendant, the circumstances and nature of the offense.
I'm going to sentence the Defendant for each murder, which I understand is consecutive-that's a major factor in how I'm arriving at my decision. I'm going to sentence the Defendant on each murder to 32 and one * * * half years for a total of 65 years. No day-for-day. He'll have to serve 100 percent of that time. He'll get credit for the time that he's got in."

Defendant filed a motion to reconsider his sentence, which the trial court denied. Defendant appealed.

¶ 8 ANALYSIS

¶ 9 I. Discretionary Transfer Hearing

¶ 10 In 2004, when defendant was charged with unlawful possession of a firearm and first degree murder, section 5-130(1)(a) of the Act provided that a juvenile who was 15 years of age or older and charged with certain serious offenses, including first degree murder, would be automatically transferred to adult court. 705 ILCS 405/5-130(1)(a) (West 2004). Effective January 1, 2016, the legislature amended section 5-130(1)(a) of the Act, raising the minimum age of juveniles automatically transferred to adult court from 15 to 16 years of age. 705 ILCS 405/5-130(1)(a) (West 2016). That amendment became effective while this case was pending on appeal. Defendant argues that the 2016 amendment applies retroactively to his case and requests remand to the juvenile court for a discretionary transfer hearing.

¶ 11 The 2016 amendment to section 5-130(1)(a) of the Act is procedural and applies retroactively to "pending cases." People ex rel. Alvarez v. Howard , 2016 IL 120729, ¶ 28, 410 Ill.Dec. 960, 72 N.E.3d 346. However, the amendment does not apply to cases pending in the appellate court when the legislation became effective. See People v. Hunter , 2017 IL 121306, ¶ 43, 422 Ill.Dec. 791, 104 N.E.3d 358.

¶ 12 Recently, our supreme court refused to apply the amended version of section 5-130(1)(a) retroactively to a defendant whose case was pending on appeal on the amendment's effective date. The court reasoned:

"Because [defendant]'s trial court proceedings have been concluded, and no further trial court proceedings are necessitated by reversible error, applying the amended statute retroactively to [defendant]'s case would result in this court effectively creating new proceedings for the sole purpose of applying a procedural statute that postdates his trial and sentence." Hunter , 2017 IL 121306, ¶ 33, 422 Ill.Dec. 791, 104 N.E.3d 358.

The court also rejected retroactive application of the amendment because a discretionary transfer hearing in juvenile court was not feasible because the defendant was over 21 years old and not subject to the jurisdiction of the juvenile court. Id. ¶¶ 37-41 (citing People v. Fiveash , 2015 IL 117669, ¶¶ 14-16, 396 Ill.Dec. 98, 39 N.E.3d 924 (juvenile court has no authority over a person 21 years of age or older) ).

¶ 13 In this case, defendant's trial concluded in 2005, over 12 years ago. Defendant is now 29 years old. A discretionary transfer hearing, which proceeds in juvenile court, is no longer feasible because the juvenile court may not exercise jurisdiction over defendant. See id. ¶¶ 38, 41; Fiveash , 2015 IL 117669, ¶¶ 14, 16, 396 Ill.Dec. 98, 39 N.E.3d 924. Because the amendment to section 5-130(1)(a) of the Act did not become effective until after defendant's trial court proceedings concluded and defendant is no longer subject to the jurisdiction of the juvenile court, the amendment does not apply retroactively to defendant's case. See Hunter , 2017 IL 121306, ¶ 43, 422 Ill.Dec. 791, 104 N.E.3d 358.

¶ 14 II. Sentencing Hearing

¶ 15 The United States Constitution prohibits "cruel and unusual" punishment. U.S. Const., amend. VIII. "Inherent in that prohibition is the concept of proportionality." People v. Holman , 2017 IL 120655, ¶ 33, 418 Ill.Dec. 889, 91 N.E.3d 849. Criminal punishment should be "graduated and proportioned to both the offender and the offense." People v. Davis , 2014 IL 115595, ¶ 18, 379 Ill.Dec. 381, 6 N.E.3d 709. "When the offender is a juvenile and the offense is serious, there is a genuine risk of disproportionate punishment." Holman , 2017 IL 120655, ¶ 33, 418 Ill.Dec. 889, 91 N.E.3d 849.

¶ 16 In Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that the eighth amendment prohibits "a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court stated, "By making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment." Id. The Supreme Court did not prohibit all life sentences for juveniles but stated that such sentences should "be uncommon" because of "children's diminished culpability and heightened capacity for change." Id. The Supreme Court instructed sentencing courts to "take into account how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison." Id. at 480, 132 S.Ct. 2455.

¶ 17 Following Miller , the Illinois Supreme Court in People v. Reyes , 2016 IL 119271, ¶ 8, 407 Ill.Dec. 452, 63 N.E.3d 884, held that a juvenile may not be sentenced to "a mandatory term of years that 'indisputably amount[s]' to life imprisonment without the possibility of parole for a single offense or for offenses committed in a single course of conduct." The court explained that a mandatory term of years "that cannot be served in one lifetime" amounts to a de facto life sentence and "has the same practical effect on a juvenile defendant's life as would an actual mandatory sentence of life without parole-in either situation, the juvenile will die in prison." Id. ¶ 9. Relying on Miller , the court stated, "[A] juvenile may not be sentenced to a mandatory, unsurvivable prison term without first considering in mitigation his youth, immaturity, and potential for rehabilitation." Id.

¶ 18 Recently, the Illinois Supreme Court held that Miller applies not only to mandatory life sentences but also to discretionary sentences that amount to life without parole for juvenile defendants. Holman , 2017 IL 120655, ¶ 40, 418 Ill.Dec. 889, 91 N.E.3d 849. "Life sentences, whether mandatory or discretionary, for juvenile defendants are disproportionate and violate the eighth amendment, unless the trial court considers youth and its attendant characteristics." Id.

¶ 19 "[A] juvenile defendant may be sentenced to life imprisonment without parole, but only if the trial court determines that the defendant's conduct showed irretrievable depravity, permanent incorrigibility, or irreparable corruption beyond the possibility of rehabilitation." Id. ¶ 46. "The court may make that decision only after considering the defendant's youth and its attendant characteristics." Id. The United States Supreme Court has instructed that life sentences should be reserved for "the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility." Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 734, 193 L.Ed.2d 599 (2016).

¶ 20 In 2016, the Illinois legislature enacted section 5-4.5-105 of the Unified Code of Corrections (Code) (730 ILCS 5/5-4.5-105 (West 2016) ), which provides a new sentencing scheme for criminal defendants under 18 years of age. Reyes , 2016 IL 119271, ¶ 11, 407 Ill.Dec. 452, 63 N.E.3d 884. The new statute requires the sentencing judge to consider various factors before sentencing, including the defendant's impetuosity, level of maturity, and ability to consider risks and consequences; whether the defendant was subjected to outside pressures; the defendant's home environment; and any history of parental neglect, physical abuse, or other childhood trauma. 730 ILCS 5/5-4.5105(a)(1)-(9) (West 2016).

¶ 21 Where the record does not indicate that the trial court considered the defendant's characteristics of youth before sentencing a juvenile to a de facto life sentence, the case should be remanded for a new sentencing hearing. See People v. Ortiz , 2016 IL App (1st) 133294, ¶ 25, 408 Ill.Dec. 469, 65 N.E.3d 945. A defendant is entitled, on remand, to be resentenced under the sentencing scheme of section 54.5-105 of the Code. Reyes , 2016 IL 119271, ¶ 12, 407 Ill.Dec. 452, 63 N.E.3d 884.

¶ 22 Here, defendant was sentenced to 65 years in prison, a de facto life sentence. See People v. Buffer , 2017 IL App (1st) 142931, ¶ 62, 412 Ill.Dec. 490, 75 N.E.3d 470 (50 years de facto life sentence); Ortiz , 2016 IL App (1st) 133294, ¶ 24, 408 Ill.Dec. 469, 65 N.E.3d 945 (60 years de facto life sentence). Thus, the trial court was required to consider defendant's youth, immaturity, and potential for rehabilitation. See Reyes , 2016 IL 119271, ¶ 9, 407 Ill.Dec. 452, 63 N.E.3d 884. While the trial court stated that it considered the statutory aggravating and mitigating factors, the court never mentioned defendant's youth and its attendant characteristics. Thus, defendant is entitled to a new sentencing hearing where the trial court must consider the factors set forth in section 5-4.5-105 of the Code. See id. ¶ 12.

¶ 23 CONCLUSION

¶ 24 The sentence of the circuit court of Peoria County is vacated, and the cause is remanded to the circuit court for resentencing in accordance with section 5-4.5-105 of the Code.

¶ 25 Sentence vacated; cause remanded.

Justices McDade and O'Brien concurred in the judgment and opinion.


text:
    The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher PEREZ, Defendant-Appellant.
    No. 1-15-3629
    Appellate Court of Illinois, First District, FIRST DIVISION.
    March 5, 2018 Rehearing denied March 26, 2018
    James E. Chadd, Patricia Mysza, and Drew A. Wallenstein, of State Appellate Defender's Office, of Chicago, for appellant.
    Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg and Jon Walters, Assistant State's Attorneys, of counsel), for the People.
   JUSTICE HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant-appellant, Christopher Perez, was arrested by Chicago police on suspicion of first degree murder in the shooting death of Edgar Delgado. Defendant proceeded to trial where a jury convicted him of intentional first degree murder and personally discharging a firearm during the commission of the offense. Defendant filed a motion for entry of judgment of acquittal, which the trial court denied. The trial court sentenced defendant to 53 years in prison, which included the 25-year firearm enhancement.

¶ 2 Defendant raises several issues on appeal. Defendant argues (1) the State failed to prove him guilty of first degree murder beyond a reasonable doubt, (2) the State improperly impeached its own witness, (3) his 53-year sentence violates the eighth amendment to the federal constitution and the proportionate penalties clause of the Illinois Constitution, (4) this court should invoke its powers under Illinois Supreme Court Rule 615(b)(4) and reduce his sentence, (5) his mittimus should be corrected to reflect the correct amount of presentence credit, and (6) his mittimus should be corrected to reflect only one conviction for first degree murder under the one act, one crime rule.

¶ 3 After reviewing the record and relevant case law, we affirm defendant's conviction for intentional first degree murder. We affirm his 53-year sentence. We order defendant's mittimus be corrected to reflect only one conviction for intentional first degree murder and the proper amount of presentence credit.

¶ 4 JURISDICTION

¶ 5 On February 26, 2015, a jury found defendant guilty of intentional first degree murder in that he personally discharged a firearm causing the death of Delgado. On October 15, 2015, the trial court sentenced defendant to 53 years in prison. A notice of appeal was filed on the same day. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6 ; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 6 BACKGROUND

¶ 7 Defendant-appellant, Christopher Perez, was charged with six counts of first degree murder stemming from the shooting death of Delgado, who was shot and killed on the streets of Chicago on February 18, 2012. Both defendant and the victim were 17 at the time of the murder. A jury trial was held wherein the State proceeded on two of the six murder counts. Both counts alleged that defendant discharged a firearm during the offense, making him eligible for the mandatory 25-year sentencing enhancement.

¶ 8 The State's first witness was Bernardino Mercado. Mercado testified that on February 18, 2012, he was walking near the intersection of Belmont Avenue and Monticello Avenue when his friend, David Cabrera, pulled up alongside and asked if he wanted a ride. Mercado entered Cabrera's car and the pair proceeded north on Monticello Avenue. They eventually parked on Monticello Avenue, and after being parked for about five minutes, Mercado noticed three cars. He thought they looked suspicious because the cars were driving bumper-to-bumper at about 10 to 15 miles per hour. The pair decided to follow in their vehicle. Traveling about 50 feet behind, Mercado observed the lead car turn onto Roscoe Street. He then saw the second car hit someone on a bike. The bike rider flew into the air. At this point, Cabrera again parked the car on Monticello Avenue, this time south of the intersection with Roscoe Street. Mercado observed an individual exit the second vehicle and begin chasing someone. Mercado believed the individual being chased was the bike rider but admitted he could not be sure. The chase headed south on Monticello Avenue toward Mercado and Cabrera.

¶ 9 Mercado observed the individual who had exited the second car raise his hand and fire three gunshots in the direction of the individual fleeing south. Mercado testified he saw flames come out of the pursuer's hands. As both individuals moved closer to them, Mercado was able to identify both. The person fleeing ran under a streetlight some 5 to 10 feet from Mercado, and he observed that individual to be Delgado, whom he knew from school. Mercado observed Delgado trip and fall. As Delgado was on the ground, the pursuer also came into the streetlight's illumination and Mercado observed his face as well. Mercado testified that the pursuer was the defendant, Perez, whom he knew from the neighborhood. He observed the defendant's full face for what he claimed to be 30 seconds. He observed defendant with a silver handgun approach Delgado, fire one shot, and then flee back toward the intersection of Monticello Avenue and Roscoe Street. Defendant reentered the vehicle and left the scene.

¶ 10 Delgado got up and saw the pair. Mercado opened the back door of the vehicle and told Delgado to get in. Delgado told them he had been shot. Mercado and Cabrera drove Delgado to a hospital at the corner of Addison and Central. The pair obtained a nearby paramedic, who with the assistance of another paramedic, pulled Delgado from the car and took him into the hospital. Mercado and Cabrera then left the hospital because they did not want to be involved.

¶ 11 Mercado talked with the police about the incident on March 19, 2012. During this conversation, Mercado was presented with a group of photographs from which he identified the defendant as the shooter. Mercado then met with the police again on March 21, 2012. During this meeting, the officers asked him to view a lineup of several individuals. Mercado again identified defendant as the person who shot Delgado. Mercado gave a statement to an assistant state's attorney as well. The statement mirrored the testimony he provided in court and again identified defendant as the shooter. During his testimony, Mercado was also presented with a picture of the intersection of Monticello Avenue and Roscoe Street looking south down Monticello Avenue. From that picture, Mercado identified the streetlamp where the shooting proximately took place. He also identified the bike in the photograph as the one he saw the night of the shooting.

¶ 12 On cross-examination, Mercado admitted he could not recall the colors of the cars. He admitted that he never called 9-1-1 and did not tell anyone at the hospital he had witnessed a shooting. Mercado also explained that he talked with police on February 22, 2012, though he did not remember much of the conversation. When pressed by defense counsel about why he did not identify the defendant as the shooter on February 22, Mercado admitted he "didn't know why." Mercado further conceded he talked with Hector Martinez, who was with Delgado on the night of the shooting. He asked Martinez about who was on the bike the night of the shooting, and Martinez explained that it was him on the bike not the victim. Mercado admitted he saw an individual on a bike get hit by a car and then moments later saw the victim running toward him; because of this, he had assumed the victim had been the same person riding the bike. When pressed again about why he did not identify defendant on February 22, Mercado explained that the police never asked him.

¶ 13 Martinez was the victim's cousin and was with him the night of the shooting. He admitted he was being held in contempt of court because he had failed to respond to the subpoena to testify in this case. On the night of February 18, 2012, he and the victim were walking toward the victim's father's house so that Delgado could eat and shower. Martinez rode his blue mountain bike while Delgado walked alongside of him. They were walking on Roscoe Street, and as they approached the intersection with Monticello Avenue, three cars pulled up on them. Martinez told Delgado to run, and Delgado began to run south on Monticello Avenue. Martinez then began riding his bike down Roscoe Street.

¶ 14 As he was riding down Roscoe Street, Martinez was hit from behind by a minivan, causing him to fall to his knees. He then turned around to see the driver and the passenger of the van. He could not identify the driver but alleged that defendant was seated in the passenger seat. He recognized defendant because he had "seen him a couple of weeks ago before that." Martinez then began running down Roscoe Street. While he was running, he heard four or five gun shots. He turned his head to see four or five individuals standing at the corner of Roscoe Street and Monticello Avenue. They were all wearing black hooded sweatshirts with the hood up. He could not identify any of them nor did he see a gun. He then ran back to his home not far from the scene. He tried to call Delgado but received no answer. A Chicago police detective came to his door later that night. Martinez described this conversation as short, and he was unable to recall the specifics of what was discussed. He then accompanied the detectives back to area headquarters where a longer conversation took place. During this conversation, he identified the three cars he observed prior to the shooting. He told the detectives the first car was a green Blazer with a broken window, the second was the minivan that hit him, and the third car was a red two-door.

¶ 15 Martinez was interviewed again on February 23, 2012. He specifically denied seeing the defendant on the corner of Roscoe Street and Monticello Avenue when the shooting occurred. He denied telling the detectives he witnessed the defendant exit a vehicle. He also denied telling them that, as he was running from the scene, he observed the defendant on the corner with three to four other Hispanic males. He did admit that he identified defendant from a photo array.

¶ 16 On cross-examination, Martinez stated it was only a matter of seconds between him getting knocked off his bike and when the shooting started. He identified the Blazer as the car he saw people exiting from prior to the shooting. He also explained that the testimony he was giving was consistent with the statement he provided to the assistant state's attorney and the statement to the grand jury.

¶ 17 The State then called Cabrera, the driver who was with Mercado when the shooting happened. He confirmed many of the details of Mercado's testimony but admitted he never saw the shooter's face and could not identify him. He confirmed that while on Monticello Avenue, he saw a bike rider get hit by a car. He only saw one person exit from the middle car and that person fired at the victim. He admitted he did not stay at the hospital because he did not want to be involved.

¶ 18 The State also called several police officers and the doctor who performed the autopsy of the victim. Dr. Goldschmidt confirmed that the victim died of two gunshots wounds to the back. He found no evidence of close range firing around either wound. He also found the entry and exit wounds were not at a significant angle from each other. Detective John Haniacek interviewed Martinez on February 23, 2012. The detective alleged that during this interview, Martinez did identify defendant as one of the individuals on the corner immediately prior to the shooting. However, he admitted his reports do not state that Martinez identified defendant as the shooter.

¶ 19 At the close of the State's case, the defendant moved for a directed verdict, which the trial court denied. The defendant did not testify and did not call any additional witnesses. The jury then deliberated and found defendant guilty of the murder of Delgado and also that he personally discharged a firearm during the offense. Defendant filed a motion for entry of judgment of acquittal, which the trial court denied. After listening to the aggravating and mitigating factors, the trial court sentenced defendant to 53 years imprisonment.

¶ 20 Defendant timely filed his notice of appeal.

¶ 21 ANALYSIS

¶ 22 In his first issue, the defendant argues the State failed to prove him guilty of first degree murder beyond a reasonable doubt. Defendant attacks the testimony of Mercado as inconsistent, contradictory, and completely unreliable. Defendant asks this court to reverse his conviction given the unreliable nature of Mercado's testimony and the lack of physical evidence tying him to the murder.

¶ 23 When a defendant argues that the evidence was insufficient to sustain his conviction, the inquiry is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Collins , 214 Ill. 2d 206, 217, 291 Ill.Dec. 686, 824 N.E.2d 262 (2005). In reviewing the sufficiency of the evidence, the appellate court will not retry the defendant. People v. Smith , 185 Ill. 2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). It is the trier of fact's function to assess witness credibility, weigh and resolve conflicts in the evidence, and draw reasonable inferences from the evidence. People v. Williams , 193 Ill. 2d 306, 338, 250 Ill.Dec. 692, 739 N.E.2d 455 (2000). While the trier of fact's findings regarding witness credibility are entitled to great weight, the determination is not conclusive. Smith , 185 Ill. 2d at 542, 236 Ill.Dec. 779, 708 N.E.2d 365. The fact that the factfinder accepted testimony as true does not guarantee that it was reasonable to do so.

People v. Cunningham , 212 Ill. 2d 274, 280, 288 Ill.Dec. 616, 818 N.E.2d 304 (2004). However, an appellate court will only reverse a conviction where no "rational tier of fact could have found the essential elements of the crime beyond a reasonable doubt." Smith , 185 Ill. 2d at 541, 236 Ill.Dec. 779, 708 N.E.2d 365.

¶ 24 In raising this argument, defendant asks us to reject the testimony of Mercado as unreliable and, instead, accept the version testified to by Martinez. Our supreme court has stated that the testimony of a single witness, if positive and credible, is sufficient to convict, even though it is contradicted by the defendant. People v. Siguenza-Brito , 235 Ill. 2d 213, 228, 336 Ill.Dec. 223, 920 N.E.2d 233 (2009). An individual's eyewitness testimony is insufficient "where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt." Cunningham , 212 Ill. 2d at 280, 288 Ill.Dec. 616, 818 N.E.2d 304. A reviewing court will reverse a conviction based on eyewitness testimony where that testimony is "improbable, unconvincing or contrary to human experience." (Internal quotation marks omitted.) People v. Ortiz , 196 Ill. 2d 236, 267, 256 Ill.Dec. 530, 752 N.E.2d 410 (2001).

¶ 25 After reviewing the testimony presented at trial, we do not find it unreasonable for the jury to rely on the testimony of Mercado. Defendant is correct that Mercado was impeached by omission ( People v. Williams , 329 Ill. App. 3d 846, 854, 264 Ill.Dec. 16, 769 N.E.2d 518 (2002) ) in that he did not initially identify the defendant as the shooter when first given an opportunity. However, impeachment is not evidence. People v. Douglas , 2011 IL App (1st) 093188, ¶ 47, 356 Ill.Dec. 486, 961 N.E.2d 875. Impeachment challenges the credibility of the witness, and the trier of fact will determine what weight to give it. Id. Mercado testified that he initially did not say anything because he did not want to get involved, the same reason given by Cabrera. When first approached by police, the police explained that people in the neighborhood were saying Mercado knew something. It would not be unreasonable for the jury to infer the reason neither Mercado nor Cabrera wanted to be involved was fear of retribution if they named the shooter.

¶ 26 Despite the defendant's insistence, we also do not find the jury's acceptance of Mercado's version of events over Martinez's to be unreasonable. Importantly, both Mercado and Martinez put the defendant at the scene of the crime. While Mercado did not initially identify the defendant, he did so at three subsequent occasions, all of which were under oath. Mercado identified defendant in a sworn statement to the assistant state's attorney, at the grand jury hearing, and then several times at trial. Each time Mercado stated that he saw Delgado run into the light of the streetlamp followed by defendant. He knew defendant from the neighborhood. He testified that he got a full face view of both the victim and defendant. While Cabrera testified he could not identify the shooter, he corroborated Mercado's testimony that there was only one shooter.

¶ 27 While defendant holds Martinez out as the more credible of the two witnesses, the photographs entered into evidence contradicted a key part of his testimony. Martinez testified that when they first noticed the cars, he told Delgado to run. Delgado took off south on Monticello Avenue, while he began to ride his bike "down" Roscoe Street. Yet, the photographs show Martinez's bike in the middle of the intersection of Roscoe Street and Monticello Avenue, not "down" Roscoe Street as he testified. The State also impeached Martinez with the testimony of Detective Haniacek. Detective Haniacek testified that Martinez told him the defendant was standing on the corner when the shooting took place. Thus, Martinez is not without his own credibility issues.

¶ 28 Defendant also argues Mercado's testimony was contradicted by the photographic and forensic evidence, specifically his observations concerning the distance from the streetlight to the intersection and distance between the shooter and victim. Notably, the record does not contain pictures either identifying where Cabrera's car was located or where Delgado was shot the second time. Moreover, any alleged discrepancy between Mercado's testimony and the photographic and forensic evidence was for the trier of fact to resolve. Williams , 193 Ill. 2d at 338, 250 Ill.Dec. 692, 739 N.E.2d 455 (finder of fact weighs and resolves conflicts in the evidence). We also reject defendant's attempt to utilize Google Maps to relitigate the issue on appeal. Neither the photographic nor forensic evidence rendered Mercado's testimony improbable or contrary to the human experience.

¶ 29 Defendant's reliance on People v. Shaw , 2015 IL App (1st) 123157, 397 Ill.Dec. 141, 41 N.E.3d 552, is misplaced. In Shaw , this court reversed a robbery conviction that had been based solely on the complaining witness's testimony. Id. ¶¶ 15, 30, 32. In reversing the conviction, this court found the sole witness's account of events was contradicted by both the surveillance video and police testimony. Id. ¶ 26 (surveillance video seriously calls into questions witness's encounter with defendant). These impeachments rendered the testimony incredible and, therefore, unreliable. Id.

¶ 30 We do not find Mercado's testimony improbable or contrary to the human experience. Both Mercado and Martinez placed defendant at the scene of the crime. While Mercado did not identify defendant as the shooter initially, he did identify him three subsequent times, including at trial. Martinez testified defendant was present in the minivan but not on the corner where the shots were fired. It was therefore up to the trier of fact to resolve the inconsistencies in their testimony and come to a conclusion. Given all the other testimony and evidence produced at trial, we do not find the jury's conclusion to believe the testimony of Mercado to be unreasonable.

¶ 31 Defendant next contends the State improperly impeached Martinez without showing he had affirmatively damaged its case. He testified at trial he only saw defendant in the minivan. Martinez denied defendant could have been on the corner of Monticello Avenue and Roscoe Street when the shooting happened. During his testimony, the State impeached his trial testimony by examining him regarding certain prior inconsistent statements related to defendant's location at the scene. The State also presented the evidence of Detective Haniacek, who relayed Martinez's prior inconsistent statements.

¶ 32 "The credibility of a witness may be attacked by any party, including the party calling the witness." Ill. S. Ct. R. 238(a) (eff. Apr. 11, 2001). A prior inconsistent statement can be admitted for impeachment purposes only if the trial testimony of the witness does "affirmative damage" to the calling party's case. People v. Cruz , 162 Ill. 2d 314, 361, 205 Ill.Dec. 345, 643 N.E.2d 636 (1994) (citing People v. Bradford , 106 Ill. 2d 492, 500, 88 Ill.Dec. 615, 478 N.E.2d 1341 (1985) ). "It is only when the witness' testimony is more damaging than his complete failure to testify would have been that impeachment is useful." People v. Sims , 285 Ill. App. 3d 598, 610, 220 Ill.Dec. 698, 673 N.E.2d 1119 (1996) (citing People v. Weaver , 92 Ill. 2d 545, 563-64, 65 Ill.Dec. 944, 442 N.E.2d 255 (1982) ). Affirmatively damaging testimony is testimony that is not merely disappointing but that gives "positive aid" to the other side. People v. Johnson , 2013 IL App (1st) 111317, ¶ 47, 374 Ill.Dec. 25, 994 N.E.2d 962.

¶ 33 After reviewing the testimony of Martinez, we conclude the State properly impeached him. In arguing that the State improperly impeached Martinez, defendant states "at no point did Martinez ever identify the shooter or ever claim to know the guilt or innocence of Perez." We disagree with this contention. The State's theory of the case was that defendant shot Delgado, first while chasing him south down Monticello Avenue, and then again under a street lamp further south on Monticello Avenue. This was based on the testimony of Mercado. Martinez testified that defendant hit him with a minivan, and then seconds later, he observed a group of individuals shooting south down Monticello Avenue. He testified there would have been no time for defendant to hit him with the van and then make it to the corner to shoot at Delgado. Accordingly, Martinez's testimony was that defendant could not and did not shoot Delgado. The testimony that defendant could not have been the shooter completely contradicts the State's argument that defendant was the shooter. Therefore, the testimony of Martinez was affirmatively damaging to the State's case, and the State could impeach him with his prior inconsistent statement that defendant was on the corner when the shooting happened.

¶ 34 Defendant also challenges the imposition of the 53-year sentence. Defendant argues that his 53-year sentence constitutes a de facto life sentence, shocks the conscience in light of his individual circumstance, and was imposed without consideration of his youth in violation of the eighth amendment to the federal constitution and the proportionate penalties clause of this state's constitution.

¶ 35 After being found guilty, defendant faced a sentencing range of 45 years to life, which included the 25-year mandatory firearm enhancement. During the trial, the court heard evidence the victim was walking to his father's house with his cousin when defendant surprised them at the corner of Monticello Avenue and Roscoe Street. The victim, unarmed, then fled south on Monticello Avenue as defendant fired at him from the corner. After the victim fell, the defendant approached him and fired again into the victim's back. The medical examiner confirmed the victim had been shot twice in the back. The State, noting the heinous nature of the crime, asked the court to sentence defendant to more than the minimum 45 years. Defense counsel asked for the minimum.

¶ 36 In People v. Reyes , 2016 IL 119271, ¶ 9, 407 Ill.Dec. 452, 63 N.E.3d 884, the Illinois Supreme Court held that a de facto life sentence imposed on a juvenile "constitutes cruel and unusual punishment in violation of the eighth amendment" if such a sentence is imposed without considering the mitigating factors set forth in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). In Reyes , the State conceded that the defendant-juvenile would not live long enough to become eligible for release. Reyes , 2016 IL 119271, ¶ 10, 407 Ill.Dec. 452, 63 N.E.3d 884 (defendant would be eligible for release after serving 89 years). Even though the sentence was not for a term of natural life, the court determined the length of the sentence amounted to a "de facto [life sentence]" and therefore Miller had to be considered before its imposition. Id. The Reyes court did not specifically address what constitutes a de facto life sentence, so that remains an open question under Illinois law.

¶ 37 Defendant argues that his sentence is a de facto life sentence because he will be unlikely to survive prison. He will be 70 upon release. In his brief before this court, defendant cites to several actuarial tables to demonstrate he will not survive to release. These tables are based on defendant's ethnicity. While acknowledging life in prison can be harsh, we decline to speculate about defendant's likely lifespan. We are in no position to do so. It is troubling that defendant seeks to rely on arguments based around his ethnicity. Appellate courts will be treading into dangerous territory if they start reviewing sentencing reductions through the prism of race, ethnicity, or gender. As this court previously observed:

"Is it simply a certain age upon release? If so, is it age 65, as defendant seems to argue for in his appellate brief, or 90? Should the age vary by ethnicity, race or gender? If we are going to consider more than age, what societal factors or health concerns should impact our assessment of a de facto life sentence. These are policy considerations that are better handled in a different forum." People v. Jackson , 2016 IL App (1st) 143025, ¶ 57, 408 Ill.Dec. 388, 65 N.E.3d 864.

We agree with Jackson that courts are not the forum for such a debate, and we categorically reject defendant's attempt to utilize ethnicity based life-expectancy tables as grounds for a sentence reduction.

¶ 38 Defendant was 17 years old when this crime was committed and he faced a minimum sentence of 45 years to a maximum of life after a jury found him guilty of killing the victim with two bullets to the back. The trial court sentenced him to 53 years, which included the mandatory 25-year enhancement for using a firearm. After serving his entire sentence, the 70 year old defendant will be released, which offers "hope for some years of life outside prison walls." Montgomery v. Louisiana , 577 U.S. ----, ----, 136 S.Ct. 718, 737, 193 L.Ed.2d 599 (2016). Defendant's sentence is survivable and cannot be considered a de facto life sentence. Therefore, the Miller factors did not need to be considered and the sentence does not violate the eighth amendment.

¶ 39 We recognize that there is disagreement as to what exactly constitutes a de facto life sentence for a juvenile. While defendant's sentence is long, it is not as long as the majority of sentences Illinois courts have determined to be de facto life sentences. See Reyes , 2016 IL 119271, 407 Ill.Dec. 452, 63 N.E.3d 884 (97-year sentence) ; People v. Morris , 2017 IL App (1st) 141117, ¶ 30, 413 Ill.Dec. 437, 78 N.E.3d 429 (100-year sentence) ; People v. Sanders , 2016 IL App (1st) 121732-B, ¶¶ 25-27, 404 Ill.Dec. 579, 56 N.E.3d 563 (100-year sentence) ; People v. Nieto , 2016 IL App (1st) 121604, ¶ 42, 402 Ill.Dec. 521, 52 N.E.3d 442 (78-year sentence) ; People v. Decatur , 2015 IL App (1st) 130231, ¶ 18, 399 Ill.Dec. 128, 45 N.E.3d 1118 (105-year sentence). But see People v. Buffer , 2017 IL App (1st) 142931, ¶ 64, 412 Ill.Dec. 490, 75 N.E.3d 470 (50-year sentence equates to a de facto life sentence), appeal allowed , No. 122327, 419 Ill.Dec. 659, 93 N.E.3d 1076 (Ill. Nov. 22, 2017) ; People v. Ortiz , 2016 IL App (1st) 133294, ¶ 24, 408 Ill.Dec. 469, 65 N.E.3d 945 (60-year sentence equates to a de facto life sentence). Unlike this case, in the majority cited above, nobody disputed those sentences were not survivable.

¶ 40 Defendant also argues that his sentence violates the proportionate penalties clause of the Illinois Constitution. He contends that his 53-year sentence for shooting an unarmed juvenile in the back as the victim fled in terror "shocks the moral sense of the community." Article I, section 11, of the Illinois Constitution is commonly referred to as the "proportionate penalties clause." Ill. Const. 1970, art. I, § 11. It contains two limitations on criminal penalties: "(1) penalties must be determined 'according to the seriousness of the offense' and, (2) penalties must be determined 'with the objective of restoring the offender to useful citizenship.' " People v. Clemons , 2012 IL 107821, ¶ 37, 360 Ill.Dec. 293, 968 N.E.2d 1046 (quoting Ill. Const. 1970, art. I, § 11 ). Under this provision of our constitution, a sentence may be deemed "unconstitutionally disproportionate if * * * the punishment for the offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community." People v. Miller , 202 Ill. 2d 328, 338, 269 Ill.Dec. 503, 781 N.E.2d 300 (2002) ( Leon Miller ).

¶ 41 Important to our considerations here, the Illinois Supreme Court has expressly stated, "there is no indication [in our constitution] that the possibility of rehabilitating an offender was to be given greater weight and consideration than the seriousness of the offense in determining a proper penalty." People v. Taylor , 102 Ill. 2d 201, 206, 80 Ill.Dec. 76, 464 N.E.2d 1059 (1984). In considering the seriousness of the offense, a court should look at the degree of harm, the frequency of the crime, and the risk of bodily injury associated with it. People v. Hill , 199 Ill. 2d 440, 454, 264 Ill.Dec. 670, 771 N.E.2d 374 (2002).

¶ 42 Gun violence is a plague on the city of Chicago and this state. Due to its pervasiveness, the General Assembly passed the firearm enhancement statute requiring the imposition of additional prison time for the use of a firearm during the commission of certain crimes. 730 ILCS 5/5-8-1(a)(1)(d)(i)-(iii) (West 2000). The General Assembly recently enacted a new statute to allow a trial court discretion in imposing the enhancement on juveniles. 730 ILCS 5/5-4.5105(b) (West 2016). However, the General Assembly did not eliminate the enhancement's application completely. In still allowing its application, it obviously feels some situations involving minors will warrant the enhancement. It also did not make the provision retroactive. People v. Hunter , 2017 IL 121306, ¶ 56, 422 Ill.Dec. 791, 104 N.E.3d 358 (not yet released for publication and subject to withdrawal). This indicates that the General Assembly continues to believe the use of a firearm during the commission of certain felonies represents an act worthy of additional punishment, even if a defendant is a juvenile.

¶ 43 With the above in mind, we first look at the facts upon which defendant's conviction is based. Mercado testified that minutes before the shooting he observed three cars driving slowly and close together. Mercado found this "suspicious" and decided to follow. Mercado believed these vehicles were about to commit a crime, and he wanted to observe it. The actions of the vehicles demonstrate the murder was not a product of "rash decision making." Leon Miller , 202 Ill. 2d at 341, 269 Ill.Dec. 503, 781 N.E.2d 300 ; People v. Gipson , 2015 IL App (1st) 122451, ¶ 73, 393 Ill.Dec. 359, 34 N.E.3d 560. Martinez's testimony also reveals that, upon seeing the three vehicles, both he and the victim immediately recognized the gravity of the situation and took flight. Defendant exited the vehicle he occupied and fired at the victim as he fled. After the victim fell, either because he tripped or had just had a bullet enter his back, defendant approached and fired another round into the victim's back. This crime is shocking and disturbing.

¶ 44 Defendant's conduct is not the sole consideration when analyzing a sentence under the proportionate penalties clause. Defendant's personal characteristics must also be considered.

Gipson , 2015 IL App (1st) 122451, ¶ 72, 393 Ill.Dec. 359, 34 N.E.3d 560 (citing Leon Miller , 202 Ill. 2d at 340-42, 269 Ill.Dec. 503, 781 N.E.2d 300 ). In arguing his personal characteristics render the sentence unconstitutional, defendant focuses on the fact he was 17 when the crime was committed. Defendant also claims he was negatively affected by gang life and peer pressure. Defendant attempts to analogize his characteristics to those of the defendants in Gipson and Leon Miller . In Gipson the record contained evidence that defendant, a juvenile, had mental illness that made him prone to impulsive behavior. Id. ¶ 73. Defendant's own counsel described defendant as a " 'disturbed retarded child' under his older brother's spell." Id. ¶ 17. He had previously been found unfit to stand trial in a prior proceeding and even the trial court recognized the state system failed defendant by not providing mental health treatment. Id. ¶ 74. The record in this case does not contain remotely similar findings regarding our defendant's mental health or personal history.

¶ 45 Leon Miller is also factually distinguishable. Unlike the facts of this case, Leon Miller was convicted under a theory of accountability and he had only been informed of the shooting about a minute before it occurred. Leon Miller , 202 Ill. 2d at 341, 269 Ill.Dec. 503, 781 N.E.2d 300. As the Leon Miller court expressly stated, "this case concerns the sentence of a juvenile convicted under a theory of accountability ." (Emphasis in original.) Id. at 342, 269 Ill.Dec. 503, 781 N.E.2d 300. These two facts render any comparison between our case and Leon Miller inappropriate.

¶ 46 Defendant committed an extremely heinous crime when he shot and killed Delgado, and we find nothing in the record concerning defendant's personal characteristics would render his sentence unconstitutional under the proportionate penalties clause.

¶ 47 In his third argument seeking a sentence reduction, defendant asks this court to utilize its power under Illinois Supreme Court Rule 615(b)(4). This rule allows the court to "reduce the punishment imposed by the trial court." Ill. S. Ct. R. 615(b)(4). We decline defendant's invitation to reduce his sentence based on this rule because his argument simply rehashes arguments he made that his sentence violated the eighth amendment to the federal constitution and the proportionate penalties clause of the Illinois Constitution. Moreover, the new sentencing guidelines were not made retroactive, and we decline to apply them retroactively. See Hunter , 2017 IL 121306, ¶ 56, 422 Ill.Dec. 791, 104 N.E.3d 358 (holding that the new sentencing guidelines do not apply retroactively). Defendant's sentence violates neither the federal nor state constitutions, and we affirm its imposition.

¶ 48 Finally, defendant contends we must order a correction to his mittimus. Defendant's mittimus shows convictions for both the lesser included crime of knowing first degree murder and intentional first degree murder. The State concedes, pursuant to People v. Alvarez-Garcia , 395 Ill. App. 3d 719, 734, 344 Ill.Dec. 59, 936 N.E.2d 588 (2009), the conviction for the lesser included offense should merge into the greater offense. We agree and order defendant's mittimus corrected to reflect solely a conviction for intentional first degree murder.

¶ 49 Defendant further contends he is entitled to additional presentence credit. The State agrees defendant is entitled to 1283 days of credit, not the 919 days currently stated on defendant's mittimus. Accordingly, we order defendant's mittimus corrected to reflect a total presentence credit of 1283 days.

¶ 50 CONCLUSION

¶ 51 For the foregoing reasons, we affirm defendant's conviction for intentional first degree murder. We affirm his 53-year sentence. We order two corrections to defendant's mittimus. First, his mittimus should reflect only one conviction for intentional first degree murder. Defendant is also entitled to 1283 days of presentence credit.

¶ 52 Affirmed; mittimus corrected.

Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.

      Roscoe Street is an east-west street; however, the record is unclear which direction Martinez rode "down."