People v. Nakajima
State: Illinois
Court: 4th District Appellate
Docket No: 4-97-0584
Case Date: 02/19/1998
No. 4-97-0584
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
MATSUO M. NAKAJIMA, ) No. 95CF1107
Defendant-Appellant. )
) Honorable
) Michael G. Prall,
) Judge Presiding.
_________________________________________________________________
JUSTICE GARMAN delivered the opinion of the court:
Following a bench trial in February 1997, defendant,
Matsuo Nakajima, was convicted of one count of stalking. 720
ILCS 5/12-7.3 (West 1994). In June 1997, the trial court entered
judgment and ordered defendant to serve 180 days in jail, with 60
days served immediately and the balance stayed pending further
review by the court. In addition, defendant was placed on 30
months' probation and directed to pay a $500 fine and seek psy-
chological counseling. Defendant appeals, arguing (1) the stalk-
ing statute, as amended, is unconstitutional, and (2) the evi-
dence was insufficient to prove him guilty of stalking beyond a
reasonable doubt. For the following reasons, we affirm.
I. BACKGROUND
In December 1995, a McLean County grand jury issued an
indictment against defendant charging him with the stalking of
Jennifer Zanardi. The indictment alleged that, on October 25,
1995, and November 18, 1995, defendant knowingly and without law-
ful justification followed Jennifer in his vehicle and surveilled
her outside her place of employment. The indictment further
alleged defendant's conduct placed Jennifer in "reasonable appre-
hension of immediate or future bodily harm, sexual assault, or
restraint."
At trial, Jennifer testified she first became acquaint-
ed with defendant, a Japanese national, in the fall of 1995. At
that time, Jennifer lived with her parents in Normal, Illinois,
and attended Illinois State University in Normal, Illinois. As
part of her studies, she taught at Northpoint Elementary Grade
School (Northpoint). She also worked part-time at Best Buy, an
electronics store located in Bloomington.
Jennifer stated she had seen defendant six or seven
times in Best Buy prior to October 24, 1995, and had assisted him
on one or two of those occasions. She specifically recalled an
instance when she assisted defendant with the purchase of an
item. According to Jennifer, defendant had paid for the item
with his credit card and, as she returned his card to him, he
grabbed her hand. Jennifer stated this incident "scared" her
because "nobody ha[d] ever touched [her] hand or done anything
like that previously." She further described how defendant fol-
lowed her throughout the store on several subsequent occasions.
Based on the above events, Jennifer was "frightened" of defendant
and became "concerned" with his behavior.
Jennifer testified that, on October 24, 1995, defendant
followed her during her drive home from Northpoint. As Jennifer
waited at the intersection of College Avenue and Veterans Park-
way, she noticed defendant, alone, in a vehicle directly behind
her. Jennifer proceeded through the intersection on College and
defendant followed. According to Jennifer, defendant's vehicle
was following "fairly closely" and remained directly behind her
even when she made several lane changes. Jennifer turned off
College onto a residential side street, and defendant continued
to follow. She made several other turns and eventually lost
sight of defendant. Jennifer stated that, although she was
frightened when defendant was driving behind her, she was not
overly concerned because she assumed he lived in the area.
Jennifer described a similar encounter as she drove
home from Northpoint the following day, October 25. She again
recognized defendant's vehicle directly behind her as she waited
at the intersection of College and Veterans. When Jennifer rec-
ognized defendant, she became scared. Jennifer drove on College
and defendant proceeded behind her. She turned on Blair Street,
while defendant turned down Orr, the street immediately before
Blair. Jennifer stated she became relieved when defendant did
not follow and again assumed he lived in the area. However, as
Jennifer approached the intersection of Blair and Spear Streets,
she again saw defendant's vehicle. She proceeded down several
different streets while defendant followed. Jennifer described
how defendant cut across traffic to stay behind her when she
turned and remained no more than two car lengths behind her vehi-
cle. She estimated this incident lasted 15 to 20 minutes and
stated that, during certain intervals, both vehicles were travel-
ing about 60 miles per hour.
Jennifer testified she was "absolutely terrified" of
defendant during the above incident. She did not know what de-
fendant intended or why he was following her. According to
Jennifer, she "wanted to get to a safe place" and did not stop
"because [she] didn't know if he would try to harm [her] in any
way." Jennifer believed defendant intended to cause her bodily
harm.
After eluding defendant, Jennifer stopped briefly at
home and then went to work at Best Buy. Jennifer telephoned her
father, Michael Zanardi, upon arriving at the store and described
the incident involving defendant. She additionally asked Michael
if he would meet her at the store after closing. Jennifer fin-
ished work about 10 p.m. and met Michael immediately outside the
store's entrance shortly thereafter. Upon exiting, Jennifer no-
ticed defendant's vehicle parked in the store's parking lot.
Jennifer identified the vehicle to Michael and walked to her
vehicle with store security.
Jennifer next saw defendant on November 4, 1995. About
2 p.m. that afternoon, Jennifer was driving to a friend's house
and noticed her parents and defendant at the intersection of
Vernon and Grandview. This intersection is about a half mile
from the Zanardi residence. Jennifer stated she stopped and saw
Michael and defendant talking outside their vehicles. Jennifer
remained in her car throughout the duration of her father's con-
versation with defendant.
Jennifer saw defendant again on November 18, 1995. At
10 p.m., Jennifer went to Best Buy with a friend to pick up her
car and saw defendant driving his vehicle up and down the aisles
of the parking lot. She estimated defendant drove in this manner
for one or two minutes and then parked a few spots from where her
vehicle was located. Jennifer entered Best Buy and telephoned
the police. She filed a complaint with the police later that
night.
Michael testified that, prior to October 25, 1995,
Jennifer was concerned with a Japanese man who was a frequent
customer at Best Buy. Michael additionally testified concerning
the events of October 25 and November 4. He stated that, on
October 25, Jennifer telephoned him and described the incidents
that occurred as she drove home from Northpoint. Michael de-
scribed Jennifer as "very agitated, very upset, [and] very
frightened" during the telephone call. Michael met Jennifer
later that night at Best Buy. Upon Michael's arrival at the
store, Jennifer pointed out defendant's vehicle. Michael drove
beside the vehicle and talked with defendant. According to Mi-
chael, he asked defendant why he was in the parking lot, and de-
fendant stated he was waiting for an individual who was in one of
the stores. Michael asked defendant which store because, at that
time, all the stores were closed. Michael identified himself as
Jennifer's father and discussed the incidents of October 24 and
25, as well as Jennifer's concerns that had developed over the
previous month. He told defendant to stay away from Jennifer and
informed him the police would be notified if his conduct contin-
ued. Michael maintained defendant stated he intended no harm and
apologized several times for his behavior.
Michael further testified that, on November 4, 1995, he
saw defendant's vehicle parked at the intersection of Vernon and
Blair. He related that other family members previously had seen
defendant's vehicle at this location. The intersection at Vernon
and Blair is about eight residential lots from the Zanardi resi-
dence. Michael described that, as he approached the intersec-
tion, defendant drove off on Vernon at a "rather rapid rate."
Michael followed and ultimately cut in front of defendant's vehi-
cle, forcing it to the side of the road. Michael exited his
vehicle and talked to defendant. He asked defendant why he con-
tinued to harass his family. He further told defendant that the
police and State's Attorney's office had been informed of his
conduct. According to Michael, defendant acknowledged he had re-
ceived a letter from the State's Attorney dated November 1, 1995.
Michael stated defendant again apologized for his behavior.
David Goodman and Michael Alcorn, officers with the
Bloomington police department, testified concerning the evening
of October 25. Goodman stated he was dispatched to Best Buy
about 10 p.m. Upon arriving at the store, Goodman saw Jennifer,
her father and defendant in the parking lot. Goodman asked de-
fendant why he was in the parking lot, and defendant responded he
was waiting for a friend who was at the movie theater next to
Best Buy. Goodman asked defendant the friend's name and which
movie the friend was seeing, but defendant failed to provide this
information.
Alcorn also testified as to conversations he had with
defendant on the evening of October 25. Alcorn stated that he
explained the nature of Jennifer's complaint to defendant and in-
formed him that his behavior would be classified as disorderly
conduct and possibly stalking. Defendant maintained he was wait-
ing for a friend he identified as Jeff. Alcorn asked Jeff's last
name, but defendant stated he did not know that information.
Alcorn further asked of Jeff's whereabouts. Defendant pointed to
Ducky's, a formal wear store located near the movie theater, and
stated Jeff recently had left in another vehicle. Alcorn in-
formed defendant a report would be sent to the State's Attorney's
office, and, if similar incidents had occurred, his conduct could
be construed as stalking. Alcorn stated defendant apologized
several times to Jennifer's father and maintained "he didn't want
any problems." Both officers testified they informed defendant
of Jennifer's concerns and stated he should not continue to fol-
low her or any other members of the Zanardi family.
Dale Sparks testified he was a police officer who re-
sponded to a "911" call on November 4, 1995. When Sparks arrived
at the intersection of Vernon and Grandview, he was informed that
defendant was following members of the Zanardi family. Sparks
asked defendant why he was in the area, and defendant responded
he was taking photographs of the fall colors. Sparks stated he
did not see a camera in defendant's possession. He told defen-
dant not to trouble the Zanardi family and specifically discussed
the letter defendant received from the State's Attorney's office.
Defendant informed Sparks he intended to respond to this letter.
Todd Williams, a Bloomington police officer, testified
he investigated Jennifer's 911 call on November 18, 1995. Wil-
liams spoke with Jennifer and was told that an Asian man had been
following her that night and on several previous occasions. Ac-
cording to Williams, Jennifer explained the man was standing near
her car and immediately left the area when she made eye contact
with him. He testified Jennifer indicated she was "very scared
of this individual and wished that the gentleman would stop fol-
lowing her." Williams never identified the man described by
Jennifer.
Defendant testified as the sole defense witness. He
stated he had shopped at Best Buy on numerous occasions prior to
October 24, 1995, and was familiar with Jennifer in her capacity
as a store employee. Defendant stated on one occasion he used
his credit card to make a purchase but does not recall grabbing
Jennifer's hand per her testimony. In addition, defendant denied
following Jennifer on both October 24 and 25. In regard to the
evening of October 25, defendant explained he was in the parking
lot waiting for a man he knew as Jeff to exit the movie theater.
According to defendant, he had met Jeff and his wife earlier that
day in a restaurant. Jeff wanted to see a movie, and defendant
offered to pick him up when the movie ended since Jeff's wife was
not available. Defendant stated he did not know Jeff's surname.
Defendant stated that the wife picked up Jeff while he was talk-
ing to Officers Goodman and Alcorn. Defendant acknowledged he
was told to stay away from Jennifer by the officers and Michael
but denied apologizing for his behavior.
Defendant also related the events of November 4, 1995.
Defendant maintained he stopped momentarily at the intersection
Blair and Vernon and then continued on Vernon. He described how
Michael pulled up behind his vehicle and forced him to the curb.
Defendant talked to Michael and explained he was in the area
taking photographs of the fall colors. Defendant testified he
was never told by Michael that he was frightening Jennifer or
that he should refrain from following her. He additionally de-
nied apologizing for his behavior and did not understand why this
information was reflected in the police report.
Defendant believed he acted "quite normally" and did
not understand why his behavior would have caused Jennifer to
fear for her safety. Defendant stated he never threatened
Jennifer or any other member of her family and maintained he
never intended to cause Jennifer harm. He expressed remorse for
any trouble his behavior might have caused the Zanardi family.
In addition to the testimonies detailed above, the
record contains a copy of the letter sent by the McLean County
State's Attorney and defendant's reply letter. The letter from
the State's Attorney office, dated November 1, 1995, informed
defendant that the office had received a report from the
Bloomington police department concerning a "young lady" that de-
fendant had been "following and harassing." The letter further
informed defendant that his "behavior has been extremely upset-
ting to the young lady involved, as well as her family," and, if
continued, would result in criminal prosecution. Defendant, in a
letter received by the State's Attorney's office on November 7,
1995, assured that his conduct would cease immediately.
At the close of the parties' cases, the trial court
took the matter under advisement and, on February 28, 1997, heard
closing remarks. The trial court ultimately found defendant
guilty of the offense of stalking. In June 1997, the trial court
sentenced defendant to 180 days in jail, with 60 days served
immediately, and ordered him to serve 30 months' probation, pay a
$500 fine, and undergo psychological counseling. In April 1997,
defendant filed a posttrial motion requesting the trial court to
vacate his conviction or, in the alternative, order a new trial.
The trial court denied the motion in June 1997, and this appeal
followed.
II. ANALYSIS
A. Constitutional Challenge to Stalking Statute
Defendant was convicted under section 12-7.3 of the
Criminal Code of 1961, which became effective August 18, 1995,
and reads, in relevant part:
"(a) A person commits stalking when he
or she, knowingly and without lawful justifi-
cation, on at least 2 separate occasions
follows another person or places the person
under surveillance or any combination thereof
and:
(1) at any time transmits a threat to
that person of immediate or future bodily
harm, sexual assault, confinement or re-
straint; or
(2) places that person in reasonable
apprehension of immediate or future bodily
harm, sexual assault, confinement or re-
straint." 720 ILCS 5/12-7.3 (West 1994).
Defendant initially challenges the constitutionality of
the stalking statute. We stress that a statute enjoys a strong
presumption of constitutionality. People v. Warren, 173 Ill. 2d
348, 355, 671 N.E.2d 700, 704-05 (1996). In addressing a ques-
tion of constitutionality, we must ascertain and give effect to
the legislature's intent in enacting the statute. Furthermore,
we must construe the statute so as to sustain its constitutional-
ity and presume any interpretation that renders the law valid was
intended by the legislature. People v. Bailey, 167 Ill. 2d 210,
225, 657 N.E.2d 953, 960-61 (1995).
The purpose of the stalking statute is to protect
against the fear and violence associated with predatory and unin-
vited conduct. In enacting the statute, the legislature sought
"to prevent violent attacks by prohibiting conduct that may pre-
cede them." People v. Holt, 271 Ill. App. 3d 1016, 1021, 649
N.E.2d 571, 577 (1995). The legislature additionally intended to
"avert the terror, intimidation, and justifiable apprehension
caused by the harassing conduct itself." Holt, 271 Ill. App. 3d
at 1021, 649 N.E.2d at 577. In realizing such conduct is often a
precursor to future violence, the statute allows law enforcement
authorities to act before a victim is actually injured.
Defendant first argues section 12-7.3 is void for
vagueness and overbreadth. Defendant maintains Bailey resolved
these issues contrary to his position and that he raises them
here solely to avoid waiver. As defendant contends, the court in
Bailey found the stalking statute neither unconstitutionally
vague nor overly broad. However, the court resolved these issues
strictly within the context of the pre-1993 version of the stat-
ute and not within the context of the current legislation.
Bailey 167 Ill. 2d at 223, 657 N.E.2d at 960. Thus, Bailey is
not dispositive here, and defendant is not precluded from chal-
lenging the constitutionality of the statute on these grounds.
Nevertheless, because defendant has failed to provide sufficient
argument or relevant authority in support of his position, we
deem these issues waived. 155 Ill. 2d R. 341(e)(7); People v.
Dinger, 136 Ill. 2d 248, 254, 554 N.E.2d 1376, 1378 (1990).
Defendant further focuses his constitutional challenge
on subsection (a)(2), which requires that the accused's conduct
place the victim in reasonable apprehension of "bodily harm,
sexual assault, confinement or restraint." 720 ILCS 5/12-
7.3(a)(2) (West 1994). Defendant contends, because subsection
(a)(2) does not require the accused to knowingly place the victim
in reasonable apprehension of the specified conduct, the statute
imposes criminal liability absent proof of a particular mind
state. As such, defendant argues the statute violates his due
process rights guaranteed under the Illinois and federal consti-
tutions.
Defendant's argument has been rejected in People v.
Cortez, 286 Ill. App. 3d 478, 676 N.E.2d 195 (1996), and People
v. Rand, 291 Ill. App. 3d 431, 439, 683 N.E.2d 1243, 1248 (1997).
In Cortez, the defendant argued the current version of the stalk-
ing statute was unconstitutionally overbroad because no mental
state, such as knowledge, accompanied either subsection (a)(1) or
(a)(2). As a result, defendant argued the statute encompassed
innocent conduct. In disagreeing with the defendant's conten-
tion, the court noted if the statute in question prescribes "'a
particular mental state with respect to the offense as a whole,
without distinguishing among the elements thereof, the prescribed
mental state applies to each such element.'" Cortez, 286 Ill.
App. 3d at 481, 676 N.E.2d at 198, quoting 720 ILCS 5/4-3(b)
(West 1994). The court read the terms "knowingly" and "without
lawful authority" as modifying not only the acts of following and
surveilling, but the conduct described in subelements (a)(1) and
(a)(2) as well. On this basis, the court determined the statute
proscribes only culpable conduct. Cortez, 286 Ill. App. 3d at
481, 676 N.E.2d at 198; see also Rand, 291 Ill. App. 3d at 438,
683 N.E.2d at 1247 (same). We agree with the holdings of Cortez
and Rand and likewise read a culpability requirement in subsec-
tion (a)(2). Accordingly, we find the current stalking legis-
lation constitutional.
B. Sufficiency of Evidence
Defendant next contends the evidence is insufficient to
support his conviction for stalking. In considering a challenge
to the sufficiency of the evidence, the relevant inquiry is
"whether, viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt." Peo-
ple v. Brown, 169 Ill. 2d 132, 152, 661 N.E.2d 287, 296 (1996).
A defendant's conviction will not be overturned on review unless
the fact finder's verdict is so improbable, unreasonable, or
unsatisfactory that it creates a reasonable doubt as to the
defendant's guilt. In a bench trial, a reviewing court will re-
spect the weight given by the trial judge to the witnesses' tes-
timonies, their credibility and the reasonable inferences drawn
from the evidence. People v. Kitchen, 159 Ill. 2d 1, 25, 636
N.E.2d 433, 443-44 (1994).
Defendant argues his conviction must be reversed be-
cause Jennifer's testimony fails to show she was twice placed in
reasonable apprehension of bodily harm, assault, confinement or
restraint. According to defendant, the plain language of the
statute requires the State to establish two incidents in which
the accused's acts of following or surveillance placed the victim
in apprehension of the specified misconduct. In other words, de-
fendant urges each act of following or surveillance must be ac-
companied by a particular apprehension in the victim.
As a primary rule of statutory construction, we must
ascertain and give effect to the intent of the legislature. In
determining the legislature's intent, we must read the statute as
a whole and consider all relevant parts. People v. Lewis, 158
Ill. 2d 386, 389, 634 N.E.2d 717, 719 (1994). Aside from the
specific wording of the statute, we may also focus on the "reason
and necessity for the law, the evils sought to be remedied, and
the purpose to be achieved." People v. Frieberg, 147 Ill. 2d
326, 345, 589 N.E.2d 508, 517 (1992).
Pursuant to the above guidelines, we construe the
stalking statute to require two separate instances where the
victim is placed in reasonable apprehension of bodily harm, sexu-
al assault, confinement or restraint. As employed in the stat-
ute, the phrase "on at least 2 separate occasions" relates not
only to the acts of following and surveilling, but also the par-
ticular apprehension felt by the victim. 720 ILCS 5/12-7.3(a)
(West 1994). Significantly, subsection (a)(2) does not contain a
temporal reference like subsection (a)(1), which provides that
the accused's threat can be transmitted "at any time" (720 ILCS
5/12-7.3(a)(1) (West 1994)). Consequently, the accused's con-
duct, at a minimum, must twice place the victim in reasonable ap-
prehension of the misconduct listed in subsection (a)(2). We,
however, do not interpret the statute to require that such appre-
hension stems from the accused's acts of following or surveil-
lance. A showing that the victim's fears arose apart and sepa-
rate from the requisite acts of following and surveillance would
be sufficient under the statute. Such a showing naturally in-
volves consideration of the time frame in which the accused's
actions occurred, and a determination as to whether a sufficient
temporal proximity exists between the acts of following and sur-
veillance and the victim's apprehension would be within the prov-
ince of the trier of fact. Our reading of the statute is consis-
tent with the legislature's purpose of deterring particular pat-
terns of harassing conduct.
Contrary to defendant's assertion, Jennifer was not
required to expressly testify about her apprehension. Subsection
(a)(2) essentially sets forth the traditional definition of as-
sault. See People v. Zamudio, No. 1-95-1246, slip op. at 8 (De-
cember 24, 1997), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___.
As such, the determination of whether the victim was placed in
reasonable apprehension of "bodily harm, sexual assault, confine-
ment or restraint" will be judged by an objective standard. The
victim, therefore, need not testify explicitly about his or her
apprehension. Rather, the trier of fact may reasonably infer
such apprehension from the facts and circumstances of the case.
See People v. Enerson, 202 Ill. App. 3d 748, 749-50, 559 N.E.2d
801, 803 (1990) ("[i]t is not necessary that the victim expressly
testify that he was in apprehension of a battery to sustain a
conviction [for criminal assault]; rather, it can be shown infer-
entially based on the conduct of the defendant and the victim");
accord People v. Ferguson, 181 Ill. App. 3d 950, 953, 537 N.E.2d
880, 882 (1989); People v. Burrows, 64 Ill. App. 3d 764, 766, 381
N.E.2d 1040, 1042 (1978).
Upon review of the record, we conclude the evidence
adequately supports the trial court's finding that Jennifer was
placed in reasonable apprehension of bodily harm as a result of
defendant's conduct. At all relevant times, Jennifer knew defen-
dant only in her capacity as a Best Buy employee. She specifi-
cally recalled an instance when defendant grabbed her hand in an
unusual manner and testified that defendant's behavior thereafter
"frightened" and "concerned" her. In addition, Jennifer testi-
fied that defendant followed her in her vehicle on two occasions
as she drove home from teaching. On one of these occasions,
Jennifer stated she was "absolutely terrified" of defendant and
believed defendant intended to harm her. A short time after the
second following incident, defendant was seen sitting in his
vehicle immediately outside Jennifer's place of employment. Upon
noticing defendant, Jennifer felt the need to be escorted by
store security to her car. Jennifer saw defendant near her home
about a week and a half later, and she saw him again parked out-
side Best Buy on November 18. On the latter occasion, Jennifer
notified the police and filed a formal criminal complaint against
defendant. The trial court, as trier of fact, was primarily re-
sponsible for evaluating the credibility of the witnesses and
resolving any conflicts in their testimony. People v. Sanchez,
115 Ill. 2d 238, 261-62, 503 N.E.2d 277, 284 (1986). As such,
the trial judge was not required to accept defendant's version of
events. Given the totality of the circumstances, the trial court
properly found that defendant's persistent and unwelcome conduct
placed Jennifer in reasonable apprehension of bodily harm.
In the alternative, defendant argues the evidence fails
to show he subjectively knew his behavior caused Jennifer's ap-
prehension. As previously mentioned, subsection (a)(2) requires
a showing that the accused "knowingly" placed the victim in rea-
sonable apprehension of "bodily harm, sexual assault, confine-
ment, or restraint." 720 ILCS 5/12-7.3(a)(2) (West 1994). The
accused's knowledge may be inferred from the facts and circum-
stances of the case (Holt, 271 Ill. App. 3d at 1025, 649 N.E.2d
at 579), and the accused need not admit he possesses knowledge
for the trier of fact to draw such a conclusion (People v. Rader,
272 Ill. App. 3d 796, 806, 651 N.E.2d 258, 265 (1995)). "Knowl-
edge of a material fact can include an awareness of the substan-
tial probability that the fact exists or that specific conduct is
practically certain to produce a given result." Holt, 271 Ill.
App. 3d at 1025, 649 N.E.2d at 579, citing 720 ILCS 5/4-5 (West
1992), and Illinois Pattern Jury Instructions, Criminal, Nos.
5.01B(1), (2) (3d ed. 1992).
In light of the evidence already discussed by the
court, we find defendant "knowingly" placed Jennifer in apprehen-
sion of bodily harm. In addition, we note there was evidence
that, on several occasions, defendant was explicitly told of
Jennifer's concerns and ordered to stay away from her and other
members of the Zanardi family. Defendant received a letter from
the State's Attorney's office detailing the effect of his actions
on Jennifer and advising that he would be criminally prosecuted
if his conduct did not cease. The trial court could have proper-
ly inferred defendant's knowledge for purposes of subsection
(a)(2).
Based on the above, we conclude a rational trier of
fact could have found defendant guilty of stalking beyond a rea-
sonable doubt.
III. CONCLUSION
For the foregoing reasons, we affirm defendant's con-
viction.
Affirmed.
KNECHT and STEIGMANN, JJ., concur.
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