## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Dionte J. , 2013 IL App (1st) 110700

Appellate Court Caption In re DI ONTE J
., a Minor (The People of the State of I llinois
, PetitionerAppellee , v. Dionte J ., Respondent-Appe llant).

District & N o. First District, Six th Division Docke t No. 1-11-0700

Filed Rehea ringdenied J une 21, 2013

J uly 17, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The appell at e court upheld responde nt’s conviction for felony murder based on mob action in the beating death of another minor pursuant to an extended jurisdiction juvenile prosec ution (EJJ P) and his commitment to the Depa rtment of J uvenile Just ice until his twenty -first birthday with a 3 0 -y ear adult sentenc e if he violates his juvenile sentenc e, notwithstanding his challeng es to the conviction and the constitutionalit y of the E J J P statute, since the trial court properly ref used to g ive an instruction on simple b att ery , under the statute in eff ect at the time of responde nt’s offe nse the State only had to show respondent was acting with others who used forc e on the victim to establish the predic ate felony of mob a ction, the trial court did not a buse its disc retion in a

pplying the EJ J P statute, and the statute did not subject responde nt to i n cr ea s ed punishment of an adu l t sentenc e without a jury finding in violation of Apprendi.

Dec ision Under Review Appea l from the Circui t C o u rt of Cook County
, No. 09-JD-4630; the Hon. Colleen F . Sheehan, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l Michae l J. Pelletier
, Alan D. Goldberg
, and Kathlee n Weck, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Kathry n A. Schierl, and Annette Colli ns, Assistant State’s Attorney s, of counsel), f

or the People.

Panel J USTI CE GORDON de livered the judgme nt of the cour t, with opinion. Presiding J ustice L ampkin and J ustice Ha l l co ncurr ed in the judgme nt and opinion.

OP INION

¶ 1 Dionte J
., ag e 14, was charg ed in juvenile cou rt wi t h o n e co u n t o f fe l o ny murder predic ated on mob action in connec tion with the beating death of 16-year -old Der rion Albert

on September 24, 2009. Upon motion by the State, the trial court de signated the ca se as an extended jurisdiction juvenile prosec ution (EJJ P). Af t er a j ury trial, defe ndant was found guilty

. At sentenc ing, the trial court committed defe ndant to the I llinois Depa rtment o f J uvenile Justice until his twenty -first birthday
, and imposed a 30-year adult sentenc e under the EJ J P statute that defe ndant would not have to serve unless he violated his juvenile
sentenc e. ¶ 2 On t h is direc t appea l, defe ndant makes sever al claims, including chal l en ges b as ed specific ally on the circ umstances of his conviction, as well as constitutional challeng es to the EJ J P statute in ge nera l. ¶ 3 Wit h respe ct to the specific circ umstances of his case , defe ndant claims: (1) that the trial
court committed reve rsible err or by ref using to i n s truct the jury on misdemeanor battery
, wher e battery is a lesser- included offe nse of mob action and, thus, a lesser- included offe nse of felony murder predic ated o n mob action; (2) that this court must vacate defe ndant’s

co n v i ct i o n for felony murder, wher e the same acts that formed the basis for murder al s o formed the basis for the predic ate felony of mob ac tion; and (3) that the tria l court er red in designatingdefe ndant’s ca se as a n EJ J P case , wher e defenda nt was only

14 year s old with

no history of delinquency
, his acts involved no preme ditation or use of a wea pon, and he was

amena ble to treatment as a juvenile of fende r. ¶ 4 In making his first claim that t h e j u ry s h o u l d h av e re ce i v ed an i n s t ru cti on on misdemeanor battery
, defe ndant argues that the supreme court’s decision in People v. Davis
, 213 I ll. 2d 459 (2004), was wrong ly decide d. As defe ndant well knows, the appellate court is in no position to en t ertain an argument that the supreme court should be reve rsed. In Davis
, the supreme court held that, when deter mining whether an offe nse is a lesser- included

-2-offe nse, we must compar e it to the offe nse of felony murder and not to the underly ing felony

. Davis
, 213 I ll. 2d at 475-76. To be lesser, the offe nse m u s t h av e an equal or lesser intent. Davis
, 213 I ll. 2d at 477. Since felony murder does not require a particula r intent, an offe nse that does require a particula r i ntent, such as battery , cannot bea lesser offe nse. Davis
, 213 I ll. 2d at 477. Although defe ndant does not like this prec edent, it is the law in our state, and he knows that we must follow it. ¶ 5 In his second claim that the same act formed the basis of both murder and the underlying felony
, defe ndant stresses his one punch of the victim, Der rion Al b ert. Howeve r, this
argument ignor es hi s other acts, such as his picking up a wooden board an d s wing ing it at another person be sides the murder victim, and his chasingof other vic tims. ¶ 6 As for his third claim that the trial court err ed in designating his case as EJ J P, we cannot find that the trial cour

t abused its discretion in light of the seriousne ss of the off ense. ¶ 7 Def

endant al s o cl ai ms that the EJ J P statute must be struck down as unconstitutional b ec au se it violates a juvenile defe ndant’s due proce ss rights, and beca use it i s unconstitutionally vague. Specifica lly
, defe ndant argues: (1) that the EJ J P statute violates a juvenile defe ndant’s right to due proce ss beca use it subjects him to the incre ased punishment of a conditional adult sentenc e without a jury finding
, in violation of Apprendi v. New Jerse y , 530 U.S. 466 (2000); and (2) that it is unconstitutionally vague beca use it does not provide fair war n ing of the conduct that will invoke the imposit ion of the adult sentenc e. Both of these constitutional arg

uments wer e reje cted by this court in a prior opinion, In re Omar M.
, 2012 I L App (1st) 100866, and the supreme court rec ently cited with approva l our Apprendi

rea soning (

In re M .I. , 2013 I L

113776, ¶¶ 43- 46). ¶ 8 For

these re asons, we must af firm.

¶ 9 BA CKGROUND ¶ 10 I . Petition for Adjudication of Wardship ¶ 11 The State’s petition for adjudication of war dship, filed on November 6, 2009, orig inally charg ed def

en d an t with three counts of first-degree murder and one count of mob action. Howeve r, on t h e ev e o f trial, the State made a motion to nol-pros the one count of mob action, as well as two of the first-degree murder coun t s

. T h i s l eft only one count of firstdegree murder r emaining

. ¶ 12 The one rema ining count charged d ef en d ant with felony murder predic ated on mob action, and stated in full:
“On or about September 24, 2009, in violation of Section 9-1(a )(3) of Act 5 of Chapter 720 of the I llinois Compil ed Statutes, as amende d, Dionte [J .] committed the offe nse of First Degree Murder
, in that the above- named minor, without lawful justification, while committing a forc ible felony
, Mob Action, in violation of Section 720 I L CS 5/25-1(a) (1) of Act 5 of Chapter 720, struck Der rion Albert about the body and stomped on Der rion Alber t ’s h ead and killed Der rion Albert with his fists, a piece of wood and his fee t, during the commission of a forc ible felony
, to wit, mob action, Der rion Albert, and there by causing the death of Der

rion Albert.”

-3-¶ 13 T h e petition charg es only one predic ate felony for the above felo n y m u rd er co u n t ,

n am el y , mob action, and it charg es only one of the three subsections of the mob ac t i o n statute, section 25-1(a )(1) of the Criminal Co de of 1961 (720 I L CS 5/25-1(a) (1) (West 2008))

. T h at subsection has since been amende d but, in 2009 when this offe nse was committed, it st ated that: “(a) Mob action consists of any of the following : (1) [t] he use of forc e or violence disturbing the public peac e by 2 or more persons acting toge ther and without authority

of law.” 720 I L CS 5/ 25-1(a )(1) (West 2008). ¶ 14 The felony murder statute states: “A person who kills an individual wi th o u t l aw ful justification co m m i ts first degree murder if, in perf orming the acts which cause the death: *** (3) he is attempting or committing a forc ible felony other than second degree murder.” 720 I L CS 5/ 9-1(a )(3) (West 2008).

¶ 15 I I . Pretrial Proce eding s ¶ 16 On Fe bruar

y 1, 2010, the State filed a motion to permit prosec utio n u n d er t h e ad u l t criminal laws of I llinois

. The motion was filed p u rs u ant to section 5-805 of the J uvenile Court Act of 1987, whi ch permits the trial court to make a discretionar y transfe r from juvenile court to adult court, afte r it considers such fac tors as the ag e and his t ory of the minor, the circ umstances of the offe nse, t h e ad v antage of treatment within the juvenile justic e s y s tem, and the security of the public. 705 I L CS 405/5-805(3) (West 2008) (“D iscretionar

y transfe r”)

. ¶ 17 At the beg inning of the pretria l hearing held on Marc h 19, 2010, the State indicated that it also had a second motion, which it made in the alternative. The State moved to designate this case as an EJ J P case , if the trial court denied its motion for a discretio n ary transfe r. 1 Be fore ruling on the State’s motions, the trial court fir st held a proba ble ca use hea ringand
grante d the State leave to proce ed by proff er. ¶ 18 The prosec utor stated that, if called to testify under oath, Deon Bla ndon wo u l d testify that, on September 24, 2009, he was a student at Fe ng er Aca demy and that there was a fight
at school that day betwee n a boy known as “B .J .,” who lived in the Altge ld Gar dens housing development and who is known as a “Ga rden Boy ,” and Eug ene Ba iley
, who lived in an are a adjac ent to Fe ng er Aca demy and who is known as a “Ville Boy .” Those youths who live in Altge ld Gar dens are known as “G ar d en Bo y s , ” and those who live in the are a adjac ent to Fe ng er A cade my

are known as “Ville Boy s.” Bla ndon later lear

ned that there was g oing to be a fight a fter school near the railroa d trac ks on 111th Street. After school, he went to that

are a and observe d Carl, also a “Ville Boy ” and B.J. fighting and a larg e fight ensued. Bla ndon observe d Eric Car son, another “ Ville Boy ,” strike Der rion Albert, another Fe ng er Ac ad em y student, in the back of the head with a wooden board. As Albert was trying to

rec over from the blow, defe ndant struck Albert in the fac e with his fist and Albert fell to the
ground. A c rowd of “ Gar den B oy s” then surr ounded Alber t and beat him.

As the Sta te ’s bri ef to thi s cou rt obs erves, the Sta te ’s m oti on in the al te rna ti ve to des ignat e 1 thi s c ase as an EJ J P ca se is notin th e appe ll at e r eco rd.

-4-¶ 19 Dominic J ., if ca lled to te stify under oath, would testify that he wa s a F eng er A cade my

student and defe ndant’s cousin, and that a fight occur red at school on September 24, 2009, betwee n B.J. and Eug ene Bailey

. After school, he and defe ndant walked with three other boy s toward the 111th Street railroa d trac ks. The three o t h er boy s wer e Eric, Carl and Dantre ll, and they “assoc iated” with the “Ville Boy s.” After they rea ched the trac ks, B. J

. swung at Carl and the two beg an fistfig hting. Dominic J

. observe d Eric hit Albert in the head with a wooden board, and Albert fell down. As Albert was trying to rise, defe ndant hit Albert in the fac e with his fist. Then others be g an strikingand kickingAlbert. ¶ 20 Do m i n i c J

. wo u l d fu rther testify that he watche d a videotape of the events wh i ch

acc urate ly portrayed the events that he h ad o b s er v ed. The State moved, without objection from the defe nse, for leave to play the two-minute videotape befor e the court, which was grante d. ¶ 21 Dr. Doher

ty , if called to testify under oath, would testify that he is a medical phy sician 2 who, on September 24, 2009, treated Albert, who died that same day from the injuries sustained. Dr. Hilary McElligott, if called to testify
, would testify that she is the assistant medical ex am iner who examined Albert’s head and deter mined that he died of cer ebra l injuries cause d by blunt head trauma. Detec tive Wil liam Sulli van, if called to testify
, would testify that he ar rested de fenda

nt. The State then re sted. ¶ 22 The defen s e t h en m ad e the following proff er. Vonkeshia J
., if called to testify , would testify that she i s defe ndant’s mot her an d t h at h i s customary route home from school is to walk east on 111th Street and then past the railroa d trac ks. The defe nse then rested and, afte r listening to ar gument from both sides, the trial c ourt made a findingof proba

ble ca use. ¶ 23 The trial court then considere d the State’s motion of discretionar y transfe r. In support of i t s m o t ion, the State relied on the proff er that it had alre ady made. In response , d ef en s e counsel moved to admit the juvenile court’s social investigati o n p retrial repor t, which the trial court admitted into evidenc e without objection. After both sides rested, the court hear d
argument on the motion. The State arg ued th at , with respe ct to a transfe r motion, the two most important fac tors wer e any prior criminal rec ord of the minor and the seriousness of the
prese nt offe nse; and that, although this minor had no prior rec ord, the court should grant the State’s motion beca

use of the seriousness of the offe nse. The defe nse argued that defe ndant had thrown one punch and that was the extent of his involvement. The matter was continued and on April 9, 2010, the trial court denied the State’s motion to tr an sfer and grante d the State’s motion to designate the ca se as a n EJ J P case.

¶ 24 I I I . Trial ¶ 25 The State’s evidenc e at trial consisted primarily of two videotapes of the incident and the testimony of ni ne witnesses, including: the v i cti m’s cousin; a teacher at Feng er Acade my ; four eyewitnesses to the mob action; two investigating police office rs; and the assistant medical e x aminer who perf ormed the a

utopsy

.

Dr. Do her ty’s fi rs t n ame does notapp earin th e appe ll at e r eco rd. 2

-5-¶ 26 The State’s first witness, L atanya Al b er t , wa s t h e v i ct im’s cousin who identified a

photogr aph of the victim when he was alive. The parties then stipulated that, if she was shown a photogr aph of the victim taken afte r he died, she would identify it as a photogr aph as he a ppear ed in death. ¶ 27 The State’s next witness, T-a wanda Piper, testified that she had been employed for 11

3
year s as a “youth work er” at the Ag ape Communi ty Center at 342 West 111th Street, Chicag o. The center is located near the l ocation of the fight which occurre d on September 24, 2009, a hal f m i le west of Fe ng er High School. At 2:45 p.m. on September 24, a

rec eptionist at the cente r informed Piper that there was a fight outside the cente r, and Piper instructed the rec eptionist to call 911 and inform the dispatcher that there was “mob action

on 111th Street.” When Piper observe d the cente r’s security came ra, she observe d “a lot of kids” on 111th Street. Then, looking through a wi ndow near the rec eptionist’s desk, she

o b s er v ed t hat “ther e wer e two groups of kids, looking as though they wer e g oing to phy sically agress [ sic ] one another .” The minors wer e 10 to 15 fee t from the window. Piper then left the window for about a minute and a half, and went upsta i rs t o fi nd other staff members. When she returne d to the window, she observe d “a young man hit a boy over the head with a board,” and then another young man hi t the s ame boy in the face with his fist. After the boy fell to the ground, other youngmen surrounde d him and started to kick him. ¶ 28 Piper testified that she exit ed the cente r in order to help the injured boy
, whom she later lear ned was Der

rion Albert. After she exit ed, she observe d sever al youths attempting to lift Albert up. A vehicle approa ched, and she as k ed a m an i n the vehicle to help her with the victim. She then car

ried Albert into the cente r, with the assistance of the unidentified man, and laid him on the floor, called for emer g ency medical service and chec ked his neck and a wrist for a pulse. Although she did not fee l a pulse in the car otid a rtery in his neck, she felt a “pr etty high” pulse in his wrist. She then learne d the victim’s name f rom his high sc hool identification tag and called out his name. Albert g asped for breath, as though he was trying to respond. The n, the ambulanc e ar rived a nd transporte d him to a hospital. ¶ 29 Piper testified that she later viewed two video rec ording s of the fight. First, she identified State’s exhibi t No. 4 as a DVD which she had observe d. Next, she identified State’s exhibi t No. 5 as the videotape from the cente r’s surveillance came ra. Piper testified that both video

rec ording s fairly and acc urate ly depicted the fight that she had witnessed. Ex hibit No. 4 was

rec eived into ev i d ence wit hout objection; and the State reque sted and rece ived t he court’s permission, without objection, to publish both to the jury

. As exhibi t No

. 4 played for the jury , Piper identified her self in the video a s she pulled Alber t into the center

. ¶ 30 The State’s next witness, Sara Muhs, testified that she is 27 year s old and a math teac her
at Fe ng er Hig h School. On September 24, 2009, defe ndant was a student in he r math class, and he arrived in her classroom that day with Dantre ll Myles, another student. The two had just come from g y

m class, and defe ndant was wea ring black and red basketba ll shorts along with his Feng er bla ck polo shirt, which is part of the Fe ng er unifor

m. ¶ 31 On cross-e x amination, Muhs testified that, although Altge ld Gar dens is located south of

Ms . Pi perspe ll ed h erfi rs t n ame for th e c our t r epo rt erwith a hyphen. 3

-6-Fe ng er Hig h School, students from Altge ld Gar dens attend Fe ng er High School. At an earlier

time, those children attended Carver High School. Howeve r, Carver was conver ted i nto a mili t ary aca demy
, and the students from Altge ld Gar dens who did not attend the milit ary

aca demy had the option of attending F eng er H igh School. ¶ 32 Muhs testified t hat, duri n g th e we ek end of S eptember 26 and 27, 2009, she watched a videotape of the incident as it played on a television news broadc ast, an d s h e observe d a person dresse d in a black Fe ng er polo shirt and red and black gy m shorts. Howeve r, she did
not contac t the police to tell them that person was defe ndant. L ater, on October 20, she watche d the videotape more closely during o n e o f her planning periods at school and, coincidenta lly
, later that same day
, she was asked to le ave her classroom to speak with two detec tives. ¶ 33 During redire ct examination, she testified that she was able to ide ntify defe ndant in the videotape, based on her rec og nition of: (1) his attire; (2) other students in the videotape who

are his f riends; and (3) one “grainy” imag e of a fac e that she “thought” was defe ndant. She testified that, in the vi deotape
, the person whom she believed to be def endant wa s holding

a “2x4” or “a railroa d tie” which was handed to Eric Carson; and then
, at a later point, defe ndant struck a person (whom she later lear ned was Der

rion Albert) in the head with his fi s t

. Muhs rec og nized Eric Carson beca use he was a student in one of her math classes. I n the videotape, Carson was wea ri n g a re d hoodie sweatshirt that she had observe d him

wea ringin school. ¶ 34 On re- cross-e x amination, Muhs testified that she had never observe d defen d an t wi th Carson prior to observing them toge ther on the vi deotape. Carson was 17 year s old. Muhs clarified that C arson took the wooden board fr om defe ndant bef ore striking Albert. On reredire ct examination, Muhs testified that the videotape depicted Carson striking Albert with the wooden board and defe ndant striking Albert in the fac e with his fist. On re- rec rossexam i n at i o n , Muhs testified that, although she did not know Albert from school, she was able to identify

him in the videotape fr om depictions she had obse rved in the me dia. ¶ 35 J am al Har ding testified that he is 19 year s old, that he lives in a neighborhood on th e south side of Chicag o known as “the Ville,” and that he graduated from Fe ng er High School in J une 2009, a couple of m onths befor e the offe nse occurre d. On S eptember 24, 2009, he

was not working or in school. At 3 p.m., he exit ed a corne r groce ry store at 111th Street and Normal Avenue
, and walked down 111t h S tre et toward the railroa d trac ks. A number of Fe ng er students we re a lso on 111th S tree t headinghome from sc hool. ¶ 36 Har ding then observe d a blue vehicle drive by
, heading toward the railroa d trac ks, with “B .J .” as a passeng er. B.J. was a student whom Har ding knew from Fe ng er High School and who lived in Altge ld Gar dens. Har ding observe d that B.J. was “bobbing his head” up and down but H arding could not hear any thing that might have been said beca use Har ding was

wea ring headphone s. As Har ding kept walking
, he crosse d the railroa d trac ks and observe d that B.J. was now out of the vehicle an d was on the same side of the street as the Ag ape Center. There was “a rumble” and “eve ry body” was fighting, including B.J. Har ding took off his headphone s and started fistfighting with B.J. After the fight, H a rd in g n o ticed Eric Carson, who was a

friend f rom the Ville, and who was we aringa re d sweatshirt.

-7-¶ 37 Har ding had wat ch ed a v i d eo t ap e of the incident and was able to identify on the

videotape himself, defe ndant, Eric C ar s o n , Albert, Dantre ll Myles, Dion Bla ndon, and Silvonus Shannon, who was from the Gar dens. Har ding knew defe ndant as “Tito” and had observe d him around the Ville. Harding knew Albert from s ch o o l
, an d they wer e friends. Dantre ll Myles, who was from the Ville and a Fe ng er student, was Ha rd i n g’s b est friend. Dion Bla ndon was also a friend of Har ding’ s and from the Vil le. The State t h en p l ay ed in
court “a slowed-down version” of the videotape and asked Har ding questions abo ut what was depicted on the videotape a s it play ed. ¶ 38 Har ding testified that the tape depicted defe ndant with a stick in his hand and Eric Car son then taking the stick from defe ndant and hitting Albert. The tape also showed defe ndant with

a fist and Har ding pushing defe ndant. Har ding explained that he pushed defe ndant to let him know that Har ding did not want defe ndant to hit Albert any more. At some point, Albert rose from the place wher e defe ndant had punched him and went to the alley
, wher e he fell ag ain and was surrounde d by other minors. Har ding testified that the tape showed Silvonus kicking Albert and jumping on Albert’s head with his two fee t; and B.J.’s brother Eug ene swing ing

a stick at Albert. The tape depicted Har ding, who explained at trial what he did a s he stood

near Albert. Harding asked Albert i f he was okay , and Alber t looked at Har ding as though he was trying to r espond but he could not talk. Har ding testified that the tape then depicted defe ndant runningafte r Ha rding , Dantre ll Myles and some other youths. ¶ 39 On cross-e x amination, Har ding agree d that, at the end of the videotape, he was depicted picking up a stick, and he explained that he did that to chase other youths awa y from Albert. Har ding testified that, afte r defe ndant punched Albert, he walked over and told defe ndant not to hit Albert ag ain. At some point afte r being punched by defe ndant, Albert was able to rise. Howeve r, Ha

rdingdenied that Albe rt stated he w as okay

. ¶ 40 On cross-e x amination, Har ding admitted that he signed a written statement at the Are a 2 police station on September 26, 2009, in the prese nce of Detec tive Sulli van and a woman. The defe nse counsel then rea d the portion of the statement in which Harding stated that: afte r defe ndant punched Albert, Ha rdingasked A lbert if he was okay and Albert replied that he
was; and Albert was on his fee t and appea red okay

. Har ding acknow ledg ed having made that
statement. ¶ 41 Har ding testified that he h ad kn own Eric Carson for five or six year s and that he had observe d Carson t h at afternoon as Har ding enter ed the corne r store at 111th Street and Normal Avenue

. Carson was on his way home from school, and defe ndant was not with him. When Har ding exit ed the store, he observe d a number of people walking home and heading in dif fer ent direc tions. Ha

rding walked toward the railroa d trac ks beca use his home was in that direc tion. The first time that Har ding observe d defe ndant was when defe ndant punched Albert. Def

endant was not a member of either the Ville group or the Altge ld Gardens g roup, and Ha rdingdoes not rec all havingobserve d defe ndant with B.J.’s brother Eug ene or with Silvonus Shannon or with any of the other

people who w ere kickingAlbert. ¶ 42 The State’s next witness was Dantre ll Myles, who testified that he was 16 year s old a nd that, in September 2009, he attended Fe ng er High School and lived in the neighborhood near Fe ng er known as the Ville. After school on September 24, 2009, he went with Carl L ower y

-8-to the corne r store at 111th Street and Normal Avenue

. When they left the store, they walked

toward the railroa d trac ks. As a vehicle drove past them with B.J. and his brother, B.J. sa id “something .” Then the vehicle stopped, and the occupa nts exit ed and started fighting with L ower y and My les near the railroa d trac ks. Then the fight “g ot larg e.” After war ds, Myles lear ned that Albert d i ed as a result of the fight. Myles had known Albert for a couple of months from the neighborhood. Myles later watche d a videotape of the incident, and the State played the “slowed- down versio n ” o f t he videotape in court, while asking Myles questions about what wa s depicted. ¶ 43 Myles identified Eric Carson on the tape. Myles had known Eric a couple of year s, and they wer e friends. Myles testified that the tape depicted defe ndant bending down to pick up

a board and swing ing it. Def endant was in Myles’ gy

m class, as well as his math class with Ms. Muhs. The tape then showed Carson as he hit Albert with the board and defe ndant as he

was about to punch Albert with his fist. T h en, it showed a group of boy s kicking Albert. Eug ene, B.J.’s brother, hit Albert over the head with a stick, and Silvonus stomped on Albert’s he ad with his fee t. ¶ 44 On cr o s s -e x am i n ation, Myles testified that the videotape showed Albert, the victim, throwing punches befor e he was hit. Myles explained that he kept walking toward the railroa d trac ks “[b] eca

use they was walking toward us, like, they wanted to fight.” “[T] hey”

wer e B.J. and his brother. B.J. wanted to fight Carl L ower y , who was M y l es ’ fr iend, so Myles started fighting too. During the fight, Myles did not notice Albert; Myles was too busy trying to avoid being hit by “[p] eople from the Gar dens.” Myles had no idea what cause d this fight. ¶ 45 The State’s next witness, Dominic J
., testified that he was 17 year s old and prese ntly in the custody of the Cook County department of corr ections due to a pending case

. In September 2009, he was 16 year s old a nd a sophomore at F eng er H igh School. De fenda nt, who was Dominic J .’s young er cousin, was a fre shman at Fe ng er and lived in the are a near Fe ng er known as the Ville. On September 24, 2009, Dominic J

. witnessed a fight in school betwee n B.J. who was fr om the Gar dens and Eug ene who was fr om the Ville. (Dominic J. later explained that the “Eug ene” with whom B.J. fought was a differ ent person from B.J.’s brother who was also named “Eug ene.” ) After school, Dominic J

. left with defe ndant, Carl, and Dantre ll Myles, an d th ey walked toward the railroa d trac ks. As they wer e walking
, Dominic J

. observe d B.J. in a vehicle with three or four other people. As B.J. was “hang ing out” of the vehicle, he stated “the s*** is not over.” Then the vehicle “disappe are d,” and they kept walking toward the railroa d trac ks. When they crosse d the trac ks, Carl and B.J. started fighting. Although Domini c J

. was pre sent during the fight, he did not become eng ag ed in it. ¶ 46 Dominic J

. testified t hat he had watched a videotape of the fight in whi ch he observed himself; defe ndant; Albert, whom Dominic J

. knew from school; Eric Carson, who was from the Vil le and who was friends with Domini c J .; and S ilvonus, who was from the Gar dens. The State then played the videotape while asking Dominic J

. about what was depicted on it. Dominic J

. testified that the tape depicted both defe ndant and Eric Carson bending down to pick up piece s of wood. Carson swung his board and hit someone; and defe ndant swung his board try ing to hit someone. Then C arson took the board from def endant a nd used it to hit

-9-Albert. After being hit, Albert wa s in the proce ss of standingup, when defenda nt punched Albert with his fist. Silvonus then stomped on Albert with his fee t, and B.J.’s brother Eug ene swung a board to hit Albert. Dominic J

. testified that the tape depicted defe ndant running but he could not say

whether defe ndant was r

unning a fter boy s from the Ga rden. ¶ 47 On cross -e x am i n at i o n , Do m i n i c J

. t estified that he was in custody on a charg e of residential burg lary for wh i ch h e could rec eive 4 to 15 year s if convicted. Dominic J

. also testified that, normally
, he an d d efe ndant would leave school eac h day and walk to defe ndant’s house by trave ling down 112th Street. Howeve r, on the day of the fight, he and defe ndant walked down 111th Street becaus e they wer e expecting trouble due to the fight that had occur

red earlier in school. Dominic J

. knew that something was going to happen

near the railroa d trac ks on 111th Street, afte r observing B.J. hang ing out of the vehicle. Howeve r, later during cross-e x amination, Dominic J

. testified that this was the route that his cousin took ever

y day to walk home. ¶ 48 Dominic J

. testified that the first time that Dominic J

. observe d either wooden sticks or defe ndant hi tting Albert is when he watche d the vi deotape

. Whil e Domini c J

. wa s prese nt at the fight, he did not observe anyone pick up sticks, or defe ndant hit Albert. Whil e Dominic J

. was prese nt near the railroa d trac ks, he observe d Albert “wa lking with the Ville.” Dominic J

. observe d Albert fighting with a person from the Gar dens and observe d Albert throwing a couple of punches. ¶ 49 Dominic J

. testified that, when he watche d the videotape, he noticed defe ndant swing ing

a stick in the direc tion of a vehicle, try ing to hit B.J. Dominic J

. had told defe ndant about the fight in school which he ha d witnessed betwe en B .J . and Eug ene. ¶ 50 The State’s next witness
, D e te c ti ve Wil liam Sulli van, testified that he had been a member of the Chicag o police depar tment for 16 year s, which included being a detec tive for 10 year s and being assig ned to homicide with Are a 2 for 6 year s. Are a 2 has its headqua rters on 111th Street. On September 24, 2009, he was working with his partne r, Detec tive Michelle MooreGrose, when they

wer e assigned at 5 p.m. to investigate a f ight that ha d occur

red on 111th Street. They went first to Roseland Hospital, wher e they lear ned that Albert had been taken
to Christ Hospital and Voshon Bullock had been transfe rre d to a h o s p ital in Indiana. The detec tive later lear

ned that Bullock’ s nickname was B.J. At Christ Hospital, they lear ned that Albert had died from his injuries. They then proce eded to Ag ape Communi ty Center, wher e they met with T-aw anda Piper and lear ned that the cente r was equipped with a surveillance

came ra. Sandy Hanke l, anot h er ce n t er employ ee, told him that she had observe d someone standing near the fight with a video rec order

. The nex t day
, he l ea rn ed that Fox News had obtai n ed a v i d eo t ape of t he fight from the i ndividual who had rec orded it, and a copy was provided to the pol ice. The detec tive watche d that tape wel l o v er 1 00 times, including the slowed-down version. As a result of the investigation into Albert’s death, Eric Carson, Silvonus Shannon, Eu gene Riley
, L apolea n Colbert, and defe ndant wer e all arr ested and charg ed with first-degree murder. The investigation reve aled that Eug ene Riley is the brother of Voshon B ullock, also known as B .J

. ¶ 51 T h e S t at e’ s n ex t witness, Curtis Thomas, testified that he had been a member of the Chicag o police depar

tment for over 24 year s and a detec tive since 2001. On September 25,

-10-2009, he trave led to the are a near the Ag ape Communi ty Center, wher e he observe d a larg e

wooden board. The board was acr oss the street from the cente r and in the grass. Thomas did not observe a

ny blood, hair or skin tissue on the boar d. ¶ 52 The State’s next witness, Dr. Hilary M cE l l i go t t , t es t i fi ed that she was the assistant medical examiner who perf ormed the autopsy on Albert’s body

. A board- cer tified patholog ist, she was acc epted, without objection, as an expert in fore ns i c p at h o l ogy

. She opined, within a re asonable degree of medica l cer tainty , that Albert’s de ath was caused by

cer ebra l injuries, due to blunt trauma. At the prosec utor’s reque s t , s h e h ad watche d, approximately a year afte r perf orming t he autopsy , the videotape of the incident. Whil e watching the videotape, she observe d the victim as he was struck with a larg e wooden board and punch ed i n t h e fac e, and as he rec eived further injuries. Dr. McElligott testified: “I believe that punch was a contributing fac tor to his death.” She explained: “Ican’ t pinpoint exactly which injury was a quote, fata l blow, end quote. My deter mination is that all of these injuries contributed as a whole to his death. *** I can’ t pinpoint exactly which blow or strike

cause d exactly

which injury

to the head r eg ion.” ¶ 53 On cross-e x amination, she testified that the fac t that a witness observe d Albert rise af ter being punched would not chang e her opinion that the punch contributed to his death. She explained, by

way of ana logy , that if a boat had multiple holes and sank, she c ould not say which hole cause d the boat t o s ink, but she could say that all of them contributed to the sinking. On redire ct, she testified that it is possible for a person to rise even afte r sustaining a traumatic brain inj ury

. On recross, she was as k ed if it was possi ble for a si ng le punch to

cause the bra in “stem” to swell and a person to die, a

nd she testified yes. ¶ 54 The State re sted, and the tria l court denie d defe ndant’s motion for a dir ecte d verdic t.

¶ 55 IV. Conviction and Posttrial P roce eding s ¶ 56 On Dec ember 8, 20 1 0
, t h e j ury re turned a verdic t finding defe ndant guilty of fe lony murder, a nd the trial cour

t entere d judgme nt on the verdic t. ¶ 57 The trial court denied defe ndant’s posttrial motion fo r a n ew tri al an d co m m i t t ed defe ndant to the I llinois Depa rtment of J uvenile Justice u n til ag e 21. The trial court also
sentenc ed defe ndant to an adult sentenc e of 30 year s, “the execution of which shall be stayed

on the condition that the minor-re spondent does not violate the provisions of t h e j uvenile
sentenc e.” Def

endant fi l ed a m o t i on to reduc e sentenc e, which the trial court denied on Marc h 4, 2011. Def

endant then filed a timely notice of appea l on Marc h 4, 2011, an d this
appea l followed.

¶ 58 ANALYSI S ¶ 59 De fe n d an t cl ai m s : (1 ) that the trial court committed reve rsible err or by ref using t o instruct the jury on battery
, wher e he prese nted some evidenc e that he committed battery and wher e battery is a lesser- included offe nse of mob action; (2) that this court must v acate defe ndant’s conviction for felony murder, wher e the same acts that formed the basi s for

m urd er al s o formed the basis for the predic ate felony of mob action; and (3) that the tri al

-11-court err ed i n designating defe ndant’s case as an EJ J P case , wher e defe ndant was only 14

year s old a

nd had no history of delinquency
, his a cts involved no preme ditation or use of a

wea pon, and he w as ame nable to tre atment as a juvenile offe nder. ¶ 60 De fendant also claims that the EJ J P statute must be struck down as unconstit u t i o n al beca use it violates a juvenile defe ndant’s due proce ss rights, and is unconstitutionally vague. Specifica lly
, defe ndant argues: (1) that the EJ J P statute violates a juvenile defe ndant’s right
to due proces s beca

use it subjects him to the incre ased punishment of a conditional adult
sentenc e without a jury finding
, in violation ofApprendi v. New Jerse y , 530 U.S. 466 (2000); and (2) that i t i s unconstitutionally vague beca use it does not provide fair war ning of the conduct that will invoke the imposition of an adult sentenc e.

¶ 61 I . Battery ¶ 62 First, defe ndant claims that the trial court erre d b y fa i ling to instruct the jury with the misdemeanor of

fense of battery
, beca

use misdemeanor

battery is a lesser- included off

ense of mob ac tion. ¶ 63 Howeve r, by the time of trial, defe ndant was no longe r charg ed with mob action. He wa s charg ed only with felony murder. For defenda nt’s arg ument to succe ed, we woul d have to find: first, that misdemeanor battery is a lesser- included offe nse of mob action; second, that, when mob ac tion is the predic ate felony for a felony murder charg e, misdemeanor battery become s a lesser- included offe nse of felony m u rd er; and third, that, when a defe ndant charg ed with felony murder predic ated on mob action shows some evidenc e of misdemeanor battery
, he is then entitled to a jury instruction on misdemeanor battery

. We can find no case law to support the third p ro p o s ition, nor has defe ndant supplied any

. This court has
repe atedly

held that a pa

rty waives a point by failingto provide supportingleg al authority

. People v. W

ard
, 215 I ll. 2d 317, 332 (2005) (“point raised in a brief but not supported by citation to rele vant authority *** is there fore forf eited”) ; In re Marriage of Bates
, 212 I ll. 2d 489, 517 (2004) (“A revie wing court is entitled to have issues clea rly define d with rele vant authority cited.”) ; Lozman v . Putnam , 379 I ll. App. 3d 807, 826 (2008); Roiser v. Cascade Mountain, Inc.
, 367 I ll. App. 3 d 559, 568 (2006) (by failing to offe r supporting leg al authority or “any rea soned argument,” plaintiffs waived consi d eration of their theory for

asser ting jurisdiction over defe ndant); Ferguson v. Bill Berger Associates, Inc.
, 302 I ll. App. 3d 61, 78 (1998) (“it is not nece ssary to decide this question since the defe ndant has waived the issue” by

failingto offer

case citation or other suppor t as Supreme Court Rule 341 (I ll. S. Ct . R. 341 (eff

. Fe b. 1, 1994)) r equire s). ¶ 64 This court re views a trial court’s de cision to decline to g ive a jury instruction under a

n abuse of discretion standard. People v. Davis
, 213 I ll. 2d 459, 475 (2004) (whe n defe ndant

was charg ed with felony murder based on mob action, our supreme court revie wed the trial court’s denia l o f defe ndant’s proposed involuntary manslaughter instruction only for an abuse of discretion). “ ‘An abuse of discretion occur s when no rea sonable person would take the view adopted by the court.’ ” In re Omar M. , 2012 I L App (1st) 100866, ¶ 26 ( quoting Trettenero v. PolicePension Fund, 333 I ll. App. 3d 792, 801 (2002)). ¶ 65 To prove felony murder, the State must prove that the def en d an t , wi th o u t l aw ful

-12-justification, cause d a person’ s death while “attempting or committing a forc ible felony other

than second degree murder.” 720 I L CS 5/9-1(a) (3) (West 2008); People v. Phillips
, 383 I ll. App. 3d 521, 535 (2008). A “forci b l e fe l o n y ” is define d, in rele vant part, as: “ag gravated battery resulting in g reat bodily harm or perma nent disability or disfigur ement and any other felony which involves the use or threat of phy sical forc e or violence ag ainst any individual.” 720 I L CS 5/ 2-8 (West 2008). ¶ 66 In the case at bar, defe ndant did not seek an instruction for ag gravated battery at trial, and he does not a

rgue for it now on appea l, so that issue is not be fore us. I f defe ndant’s theory 4

was taken to its absurd but logic al conclusion, disorderly conduct could just as easily become

a require d “lesser -included offe nse” instruction for felony murder predic ated on mob action, as misdemeanor

battery . 720 I L CS 5/26-1 (West 2008) (“disorde rly conduct” includes any
act done “in such unrea son ab l e m an ner as to alar m or disturb another and to provoke a brea ch of the peac e”)

. ¶ 67 In Davis
, the supreme court held that involuntary manslaughter was not a lesser- included offe nse of felony murder predic ated on mob action. Davis
, 213 I ll. 2d at 477. To be a lesserincluded offe nse, the lesser offe nse must have a less culpable mental state than or an equally culpable mental state as the charg ed offe nse. Davis
, 213 I ll. 2d at 477. The supreme court

rea soned that involuntary manslaughter wa s n ot a lesser- included offe nse, beca use felony murder “does not include a cu l p able mental state as to the killing while the offe nse of involuntary manslaughter require s a rec kless mental state. ” Davis
, 213 I ll. 2d at 477. In

rea ching this conclusion, the supreme court considere d only the mental state require d for the murder and not the mental state require d for the underly ing felony of mob action. Davis
, 213 I ll. 2d at 477. In the case at ba r, def endant a sks us to do what the supreme court re fused to do, which is to consider the mental state of the predic ate felony

. Def endant claims that Davis

was wrong ly decide d, arguing that “the analy sis in Davis ignor ed a fundame ntal require ment of ever y felony murder indictment: the predic ate felony .” Def endant’ s argument, howeve r, that the s upreme court should vacate one of i ts case s, is an argument he will have to make
to a differ ent court. People v. Phillips
, 383 I ll. App. 3d 5 2 1
, 546 (2008) (this court was “unper suaded” when another defenda nt made the sa

me argument that “the approac h taken by the supreme court in Davis was too nar row” ). ¶ 68 For the fore g oing rea sons, we find that the trial court did not ab u s e i t s discretion by denying de fenda

nt’s proposed jury

instruction for misdemea nor batter y

.

¶ 69 I I . Mob Action and F elony Murder ¶ 70 Second, d ef

en d ant asks this court to vacate his conviction for felony murder, on the
ground that the same acts that formed the basis for the murder also formed the basis for the

Pri or to ora l ar gum ent , def end ant m oved to ci te as add it ion al aut hor it y Peop le v. Sch midt
, 4 392 I ll

. App. 3d 689, 694-96 (20 09)
, in whic h thi s court hel d tha t an aggra vated bat te ry tha t doe s not

re sul t in great bodi ly harm can not ser ve as a for ci ble fe lon y for purpos es of th e f e l o n y mu rde r st atute

. However, as st at ed abo ve, def end ant did not see k an ins truct ion for aggra vat e d b a t t e r y at tr ia l, s o t hatis sue is notbef ore us.

-13-predic ate f elony of mob ac tion. ¶ 71 The supreme court has held that, wher e the acts constituting a forc ible felony arise f rom and are inhere nt in the act of mur d er i t s el f, those acts cannot also serve as the predic ate felony for a charg e of felony murder. People v. English
, 2013 I L 112890, ¶ 29 (qu o t i n g People v. Morgan
, 197 I ll. 2d 404, 447 (2001))

. This rule is known as the same-a ct doctrine. People v. Davison
, 236 I ll. 2d 232, 243 (2010) (our supreme court rea ffirme d its adher ence to “the same-a ct *** doctrine for felony murder” ). Since this issue prese nts solely a question of law, we re v i ew it de novo

. Davison
, 236 I ll. 2d at 239 (the question of whether “the conduct constituting mob action arose from and was inhere nt in the act of murder itself” was “solely” a question of law to be revie wed de novo ). De novo considerat i o n m ea n s that we revie w the issue independe ntly from the trial court’s judgme nt. A Plus Janitorial Co. v. Group Fox, I

nc. , 2013 I LApp (1st) 120245, ¶ 14. ¶ 72 As noted above, the petition charg es o n l y o n e p redicate felony for the felony murder count, mob action, and it charg es only one of the three subsections of the mob action statute, subsection 25-1(a )(1)

. In 2009 when th is offe nse was committed, it stated that: “(a) Mob action consists of any of the following : (1) [t ]he use of forc e or violence disturbing the public
peace b y 2 o r m o re persons acting toge ther and without authority of law ***.” 720 I L CS 5/25-1(a) (1) ( West 2008). Thus, under a plain rea ding of the 2009 statute, the S tate had to
prove: (1) that defe ndant was o n e o f two or more people acting toge ther and without authority of law; (2) that these two or more people used forc e or violenc e; and ( 3) that this use of force or vi olence disturbed t he publi c peace

. In 2009, the s tatute di d not require the State to prove that defe ndant was the one who used forc e or violence; the State had to prove only that defe ndant was acting toge ther with pe rsons who did use forc e or violence. Davis
, 213 I ll. 2d at 471, 474 (apply ing the same subsection of the mob action statute, our supreme court held that the State did not have to prove that defe ndant used forc e ag ainst the victim); People v . Cotton , 393 I ll. App. 3d 237, 258 (2009). ¶ 73 Howeve r, eff

ective J anuar

y 1, 2010, the statute was amende d to rea d: “A person commits the offe nse of mob action when he or she engages in any of the follow ing: *** the knowing

or reck less use of

force or violence disturbing the public peac e by 2 or more persons acting toge ther and without authority of law.” (Emphasis added.) 720 I L CS 5/25-1(a) (1) (West 2010). A plain re adingof the 2010 amendment shows that the S tate then had to prove that defe ndant was the one who eng aged i n t h e use of forc e or violence and that he did so knowing ly or recklessly

. Landry v. Daley
, 280 F. Supp. 938, 956 (N.D. I ll

. 1 9 6 8 ) (when a statute uses the words “eng ag ed in,” it means that the acc used must have been “occ upied in or employed in” the a ction named) . Howeve r, that wa s not the law in eff ect at the time the offe nse was committed, and we apply the statute that was in eff ect at the time of the offe nse. People v . Freem an , 404 I ll. App. 3d 978, 986 (2010). ¶ 74 Thus, defe ndant’s argument fa i l s un d er a p l ai n rea ding of the statute. Def endant’ s argument is that the same punch by defe ndant which the State used to establish defe ndant’s

causation of the murder was the same punch which the State relied on to show that defe ndant used force for purposes of m ob action. However
, defe ndant i s mistaken, because the State

was not require d to show in 2009 that it was defe ndant who u s ed fo rc e. The State was require d to establish only that defe ndant was acting in conce rt with others who did use forc e

-14-or violence , which it did establish in the case at bar

.

¶ 75 Second, even if we wer e to assume that the 2010 amendment applied here
, it would not help defe ndant. During its closing argument to the jury
, the State argued that there wer e other acts, besides the punch, that constituted a use of forc e by defe ndant. The evidenc e established that, prior to the punch, defe ndant used a wooden board to swing at someone other than the murder victim and that, afte r the p un ch
, d ef endant was chasing other victims. Wit h this evidenc e, the State showed that t h e p u n ch
, which was the basis for the murder charg e,

occur red in th e middle of defendant’ s “mob action” or hi s use of forc e or violence ag ainst others. Thus, whether we apply the 2009 statute or the 2010 amendment, we must find that the felony murder charg e and its predic ate felony of mob action wer e based on separ ate acts. ¶ 76 The case at bar is simil ar to People v. Davison
, 236 I ll. 2d 232, 242-43 (2010), in which

our supreme court aff

irmed a defe ndant’s felony murder conviction based on mob action. The Davison defe ndant made the same argument as defe ndant in the case at bar, namely
, that the acts constituting the predic ate felony of mob action wer e the same acts inhere nt in the commission of the murder. Davison
, 236 I ll. 2d at 239. In Davison
, the defe ndant and three other men sear ched for the victim, located him, chase d him and finally beat and stabbed him. Davison , 236 I ll. 2d at 234. The victim died a s a re sult of blood loss from 20 stab wounds. Da vi s o n , 236 I ll. 2d at 235. Our supreme court reje cted the defe ndant’s argument that th e

same acts constituted both mob action and murder, on the grounds that (1 ) “t h e p redicate felony of mob action [was complete] befor e the end of the ag gression that eventua lly resulted in the victim’s de ath”; and ( 2) “the victim died as the re sult of cumulative blood loss from the 20 stab wounds inflicted by defe ndant and his three co-of fende rs, rathe r than any particula r wounds inflicted by

defe ndant alone.” Davison , 236 I ll. 2d at 242, 243. ¶ 77 Simi larly
, in the case at bar, the predic ate felony of mob action was complete “bef ore the end of the ag g ression that eventua lly resulted in the victim’s death.” Davison
, 236 I ll. 2d at 242. The predic ate felony was complete when defe nd an t b en t d o wn to pick up a wooden board and started swing ing it, and his swing wa s not toward the murde r victim. Also, as in Davison
, the murder victim in the case at bar died as the result of multipl e injuries inflicted by defe ndant and his co-of fende rs, “rather than any particula r wounds inflicted by defe ndant alone.” Davison
, 236 I ll. 2d at 243. Thus, applying the rea soning of Davison to the fac ts a t bar, we find that the acts inhere nt in the murder and the acts constituting the mob action wer e not the same. ¶ 78 The State argues that we should not have even rea ched this issue beca use it was for feited. Howeve r, we find that defe ndant did not forf eit this issue beca

use he prese rved this issue by raising it both at trial and in a posttrial motion. People v. W oods
, 214 I ll. 2d 455, 470 (2005). First, defen d ant objected at trial. When he moved for a direc ted verdic t, he stated “mob action cannot be the p re d i ca te felony for felony murder in this case beca use mob action causing bodily harm is implicit in the death of Der rion Albert, and it is duplicative. So mob action should not be the underlying predic ate felony that justifies felony murder in this case .” The State responde d that “[i] t is all of his actions befor e the throwing of the p u n ch that allowed him to be found guilty of being a participa nt, an active participa

nt in the mob action.” The trial court did not find defe ndant’s argument persua sive and denied the motion for a direc ted verdic t. Next, in a posttrial motion, defe ndant claimed that the trial court err ed

-15-in denying the direc ted verdict motion. S ince de fenda nt objected both duringtrial and in a posttrial motion, he preser ved this issue for our r eview. W oods , 214 I ll. 2d at 470. ¶ 79 In addition, defe ndant’s argument is prese rved for our revie w beca use it is direc ted to the sufficie ncy of the evidenc e. “[W ]hen a defe ndant makes a challeng e to the sufficie ncy of the evidenc e, his or her claim is not subject to the waiver rule and may be raised for the first time on direc t appea l.” W

oods , 214 I ll. 2d at 470. In order to prove fe lony

murder, the State has the burden of proving separ ate acts and a separ ate felonious purpose underly ing the murder, which are separ at e an d distinct from the acts and purpose underlying the predic ate felony

. English
, 2013 I L 112890, ¶ 29; Davison
, 236 I ll. 2d at 243-44 (re aff irming its adher ence to the same-act d o ct rine and reje cting the State’s invitation to rely only on an analy sis of whether the felonious purpose underly ing the predic ate felony was distinct from an intent to kill). Def endant’ s argument here is that the State’s evidenc e was insufficient beca use it failed
to show separ ate acts underlying the murder and the mob action. Since defe ndant’s argument

was direc ted at the sufficie ncy of the evidenc e at trial, this argument was not waived for our revie w on appea l. Thus, we consid er ed h i s argument on revie w, but we do not find it
persua sive for the rea sons alrea dy considere d above.

¶ 80 I I I . Designation as an EJJ P Case ¶ 81 T hird, defe ndant claims that the trial court abused its discretion when i t d es i gn at ed defe ndant’s case EJ J P
, b ec ause (1) defe ndant was only 14 year s old at the time of the offe nse; (2) he had no prior record of criminal ac t s or delinquency ; (3) his participation in the offe nse at issue involved no preme ditation or use of a wea pon; and (4) he was amena ble
to treatment a s a juvenile off ender

. ¶ 82 W e will reve rse a trial court’s decision to designate a case EJ J P only if t h e t ri al co u rt abused its discretion. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 26. As noted, “ ‘[a]n abuse of discretion occur s when no rea sonable person would take the view adopted by the court.’ ” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 26 (quoting Trettenero v. Police Pension Fund
, 333 I ll. App. 3d 792, 801 (2002)). ¶ 83 The purpose of designating a case as EJ J P i s t o p ro v i d e ad d i t i o n al d eter renc e by subjecting the minor, if foun d guilty
, to both a juvenile sentenc e and a conditional adult
sentenc e. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 24; 705 I L CS 40 5 / 5 -8 1 0 (4) (West 2010). The adult sentenc e is conditional beca use it is stayed on the condition that the minor does not violate the provisions of his juvenile sentence. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 24; 705 I L CS 405/5-810(4) (West 2010). I f the minor satisfac torily completes his juvenile sentenc e, the a dult sentence is vacated. 705 IL CS 405/ 5-810(7) (West 2010). ¶ 84 The first step under the EJ J P statute is for the State to file a petition, at any time prior to
t rial, to designate the minor’s case as an EJ J P case

. In re Omar M.
, 2012 I L Ap p (1 s t ) 100866, ¶ 25; 705 I L CS 405/5-810(1)( a) (West 2010). The State’s petition must alleg e that the minor was 13 year s of ag e or older at the time of the offe nse and that the offe nse would be a f elony if committed by

an adult. In re Om ar M. , 2012 I LApp (1st) 100866, ¶ 25; 705 I L CS 405/5-810(1)( a) (West 2010). There i s n o d i s p u t e in the case at bar that the State satisfied this first step.

-16-¶ 85 The next step is a deter mination by the juvenile judge that there is probable ca u s e t o believe that the alleg ations in the petition are true. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 25; 705 I L CS 405/5-810(1)( a) (West 2010). In the case at bar, the juvenile judge made such a dete rmination, and no cla ims are r aised on a ppeal to cha lleng e it. ¶ 86 Once the j uvenile judge makes a probable cause determination, it creates “a rebuttable presumpti o n t h at the proce eding shall be designated as an extended jurisdiction juvenile
pro ce ed i n g.” 705 I L CS 405/5-810(1)( a) (West 2010); In re Omar M.
, 2012 I L App (1st) 100866, ¶ 25. The judge must enter an order designating the case as an EJ J P case , unless the court finds, based on clea r and convincing ev i d ence , that sentenc ing the minor as an adult would not be appropriate for the minor. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 25; 705 I L CS 405/5-810(1)(b) (West 2010). The EJ J P statute provides a list of five fac tors which the trial court must evaluate when making this decision: (1) the minor’s ag e; (2) prior his tory , includin g h i s j uvenile rec ord, mental and phy sical health, and his educational and social background; (3) the ci rcumstanc es and seriousness of the offe nse; (4) the advanta g es of
treating the minor within the juvenile justice sy stem; and (5) the security needs of the public. In re Om ar M. , 2012 I LApp (1st) 100866, ¶ 25; 705 I L CS 405/ 5-810(1) (b) ( West 2010). ¶ 87 When evaluating the five listed fac tors, the trial court must g ive greater weight to (1) the seriousness of the alleg ed offe nse and (2) the minor’s prior criminal or juvenile rec ord, than
to any of the other listed fac tors. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 26, 705 I L CS 405/5-810(1)(b) (West 2010). In the case at bar, it is undisputed that defe ndant had no prior criminal or juvenile rec ord. In light of his nonexis tent rec ord, defe ndant argues that the trial
court failed to consider his reh abil itative potential. In addition, with respe ct to the seriousness of the offe nse, def endant a rgues that his role in the off ense w as limited. ¶ 88 We acknow ledg e that defe ndant was only 14 year s old, that he had no prior criminal or juvenile rec ord, and that he had reha bilitative potential; howeve r, we cannot say that the trial
court a bused its discretion, in light of the seriousness of the offe nse. As a r eviewingcourt,

we are not called upon to deter mine what we would do if we wer e presiding as the trial court; rathe r, we may reve rse only if no rea sonable person would take the view adopted by the trial
court. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 26 (quoting Trettenero
, 333 I ll. App. 3d
at 801). In the case at bar, we cannot say that the trial court’s designation was unrea sonable, for the r easons discusse d below. ¶ 89 The rec ord befor e us shows that the trial court car efully considere d eac h and ever y fac tor listed in the EJ J P statute. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 3 6 (c i t i n g In re Dontrale E.
, 358 I ll. App. 3d 136, 141 (2005))

. This is not a case wher e defe ndant claims that the trial cour

t failed to discuss a particula r factor. People v. Clark
, 119 I ll. 2d 1, 14 (1987) (our supreme court found that the transfe r hearing was inadequate wher e the juvenile judge failed to consider all of the listed fac tors). Instead, defe ndant challeng es only the trial court’s weighing of the fac tors, asser ting that the trial court abused its discretion by not g iving more weight to defenda

nt’s lack of

a prior r ecor d and his reha bilitative potential. ¶ 90 What this argument overlooks is that the seriousness of the offe nse is one of the two most important fac tors that the trial court must consider. In re Omar M.
, 2 0 1 2 I L Ap p (1st) 100866, ¶ 26, 705 I L CS 405/5-810(1)(b) (West 2010). The State’s proff er showed that

-17-defe ndant participated in a mob action and punched a minor in the fac e without any known

persona l animosity toward that minor. Def endant knocked the minor down as the minor was strug g ling to rise, there by m ak i n g him an easy targ et for the mob which eventua lly surrounde d and participa ted in killing him. In light of the s er iousness of the offe nse, we cannot say that the trial court abused its discretion by designati n g d ef en d ant’s case as an EJ J P case–subjec ting de fenda nt to an adult sentenc e that he ma y never have to se rve.

¶ 91 IV. Apprendiand Va gueness Claims ¶ 92 Def

endant also claims that the EJ J P statu t e m u s t b e struck down as unconstitutional beca use it violates a juvenile defe ndant’s due proce ss rights and is unconstitutionally vague. Specifica lly
, defe ndant argues: (1) that the EJ J P statute violates a juvenile defe ndant’s right
to due proce ss beca

use it s ub jects him to the incre ased punishment of a conditional adult
sentenc e without a jury finding
, in violation ofApprendi v. New Jerse y , 530 U.S. 466 (2000); and (2) that i t i s unconstitutionally vague beca use it does not provide fair war ning of the conduct that will invoke the imposition of the adult sentenc e. ¶ 93 These exact same constitutional challeng es wer e resolved by this court in a prior opinion, In re Omar M.
, 2012 I L App (1st) 100866; and rec en t ly
, our supreme court adopted our

re as oning conce rning Apprendi
, stating “[w]e agree with the rea soning put forth by o u r appellate court” (

In re M .I. , 2013 I L113776, ¶ 44).

¶ 94 A. Apprendi ¶ 95 In his brief to this cou rt , defe ndant arg ues that “the fac ts that qualify the juvenile for
prosec ution under the EJ J P statute are n o t require d to be submitt ed to a jury for a deter mination or proved beyond a rea sonable d o ub t .” In Omar M.
, the defe ndant made al m o s t the exact same argument that the eff ect of an EJ J P “designation is to expose a responde nt to the longe r adult sentenc e based on information found by the judge on the basis of only probable cause .” In re Om ar M. , 2012 I LApp (1st) 100866, ¶ 62. ¶ 96 In the case at bar, defe ndant argues, “[b] eca use the EJ J P statute did not require that the fac ts used to extend [hi s] sentenc e beyond the maxi mum juvenile sentenc e *** be proved to

a jury beyond a rea sonable doubt, the EJ J P statute violated *** Apprendi .” In Omar M.
, we

answe red this argument, explaining “the statutory maxi mum for Apprendi purposes is not the maxi mum punishment allowed in the juvenile sy stem.” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 63. In Omar M.
, as in the case at bar, “a jury found ever y element require d for the statutory sentenc e beyond a rea sonable doubt,” and “[t] he sentenc e was within the statutory rang e of 20 to 60 year s for first-degree murder.” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 64. Thus, there was no Apprendi violation. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 65. ¶ 97 In his brief, defe ndant acknow ledg ed that at least four appellate court decisions have he ld that the EJ J P statute did not violate Apprendi

. In Omar M.
, 2012 I L App (1st) 100866, ¶ 65; In re J.W

. , 346 I ll. App. 3d 1, 10-12 (2004); In re Christ opher K.
, 348 I ll. App. 3d 130, 142- 43 (2004), aff’d in part & rev’d in part on other grounds
, 217 I ll. 2d 348, 363 (2005); In re Matthew M.
, 335 I ll. App. 3d 276, 286-90 (2002). Nonethele ss, defe ndant argued that these

case s wer e wrong ly decide d. Howeve r, between the filing of his brief a nd the filing of our

-18-opinion, our supreme court issued an opinion adopting the rea soning of these appellate case s

and thus settling, once and for all in this state, the outcome of this arg ument. In re M.I.
, 2013 I L113776, ¶¶ 44, 46. ¶ 98 Citi ng with approva l our opinion in Omar M.
, our supreme court agree d, stating: “for the
purposes of Apprendi
, the statutory maxi mum is not the juvenile sentenc e under the J uvenile Court Act, but rathe r the maxi mum sentenc e allowed by the offe nse committed.” In re M.I.
, 2013 I L 113776, ¶ 46. Our supreme court explained that, wher e the fac t finder “found ever y element for the statutory sentenc e beyond a rea sonable doubt,” and wher e the sentenc e was “within the statutory rang e of the criminal offe nse,” there was no Apprendiviolation. In re M.I. , 2013 I L113776, ¶ 46.

¶ 99 B. V agueness ¶ 100 In his brief to this court, defe ndant also claims that the EJ J P statute is “unconstitutionally
vagu e, b ec ause it [1] does not provide fair war ning of the conduct that will invoke the imposit ion o f the adult sentenc e and [2] fails to provide adequate guidance to authorities called upon to e nforc e its provisions.” ¶ 101 The EJ J P statute provides that a court may revoke the s tay of a minor’s adult sen t en ce if he “violate[s] the conditions of his or her sentenc e” and shall revoke the stay if he “committed a new offense .” (Emphase s added.) 705 I L CS 405/5-810(6) (West 2008). In the

cas e at b ar, defe ndant claims: that the words “conditions” and “off ense” are unconstitutionally vague and that, although the EJ J P statute permits a court to revoke the stay afte r a violation of “conditions,” it provides no guidelines conce rning when the court should do so. ¶ 102 As we explained in Omar M.
, the term “conditions” expli citly ref ers to the “ ‘conditions of his or her sentenc e .’ ” (Emphasis in orig inal.) In re Omar M.
, 2012 I L App (1st) 100866, ¶ 84 (quoting 705 I L CS 405/5-810 (6) (West 2008)). “Where the trial court order s provisions such as probation or drug counseling in addition to the juvenile detention term, those provisions of the juvenile sentenc e would be part of the *** ‘c o n d i t i o n s.’ Where the trial court doe s not impose any additional provisions at sentencing , the term ‘c onditions’ refe rs

o n l y to the minor’s completion of his or her sentenc e and the minor’s adher ence to t h e I llinois Depa

rtment of Correc tions (IDOC) rules and regulations during that time.” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 84 ; C h r istopher K.
, 348 I ll. App. 3d at 146, 147 (finding that the EJ J P statute was not vague, the appellate court held that a juvenile violates the “conditions of his or her sentenc e” by a “fa ilure to comply with the juvenile sentenc e”)
, aff’d in part & rev’d in part on other grounds
, 217 I ll. 2d 348, 363 (2005). As a result, this term is not vague. In re Om ar M. , 2012 I L App (1st) 100866, ¶ 84. ¶ 103 The court in Omar M. also addre ssed the challeng e to the meaning of the term “off ense” : “The term ‘off

ense’ is equally

plain and unambiguous, meaning‘criminal offense .’ ” In re Omar M. , 2012 I L App (1st) 100866, ¶ 85. Acc ord Christ opher K. , 348 I ll. App. 3d at 147 (“w e find the leg islature must have meant ‘off ense’ as a criminal offe nse as such is define d in the Criminal Code”), aff’d in part & rev’d in part on other grounds
, 217 I ll. 2d 348, 363 (2005). As for the alleg ed lack of guidance
, the court explained, “[c]ontrary to [defendant’ s]

-19-claim, t he J uvenile C ourt Act’s section on ‘Purpose and policy ’ p ro v i d es gu idance to trial

court judge s,” and the Act “explicitly grants trial court judge s discretion t o af fe ct these
g oals.” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 88. For these rea sons, we found in Omar M.
, and we still continue to f ind, that the EJ J P statute is not unconstitutionally vague. In re Omar M.
, 2012 I L App (1st) 100866, ¶ 91 (“B eca use the terms of the [EJ J P] statute are plain and unambiguous, the statute satisfies due proce ss require ments and is not unconstitutionally
vague.”) ; acc ord Christopher K.
, 348 I ll. App. 3d at 146-47, aff’d in part & rev’d in part on other grounds
, 217 I ll. 2d 348, 363 (2005). Our supreme court conclude d in Christ opher K. that no authoritative deter mination of the vagueness issues was nece ssary at that time, since the appe llate cour

t had thus far

uniformly

reje cted de fenda

nt’s claims that the EJJ P statute

was va gue. Christ opher K. , 217 I ll. 2d at 362. ¶ 104 In its motion to cite additional authority
, the State argued that the supreme court’s rec ent decision in In re M.I.
, 2013 I L 113776, ¶ 36, re solved defe ndant’s vagueness claim. Howeve r, the M.I. opinion does not decide defe ndant’s claim for the following rea son. In In re M.I

. , 2013 I L113776, ¶ 36, the supreme court held that a def endant lac ked standing , on the particula

r fac ts and circ umstances of the case befor e it, to raise a vagueness challeng e to the term “conditions” in the EJ J P statute. In In re M.I.
, 2013 I L 113776, ¶ 34, the State had alre ady filed a petition to revoke the stay of the juvenile defe ndant’s adult sentenc e, and had done so solely on the g round that the defe ndant had committed a new felony offe nse. Howeve r, on appea l, the M.I. defe ndant claimed only that the term “conditions” was vague, but he did not claim t h at t he term “off ense” was vague in any way

. In re M.I.
, 2013 I L 113776, ¶ 36. Since any vagueness in the term “conditions” was g oing to have no impact on h im, our supreme court held that he lacke d standing to challeng e the vagueness of that particula r term. In re M.I.
, 2013 I L 113776, ¶ 36. Howeve r, our supreme court emphasized the narr ow prec edential eff ect of its holdi ngin In re M

.I. , 2013 I L 113776, ¶ 36, by stating that it made “no de termination today whether a petition to re voke the stay must be g rante d

or eve n filed to trig g er standing .” ¶ 105 L astly
, defe ndant argues that the EJ J P statute is not only fac ially vague but is also vague

as applied to him beca

use the trial court failed to outline conditions spe cific to his juvenile
sentenc e. We reje ct this argument for the same rea son that we reje cted his fac ial challeng e. As we e x plained above , “[w]here the trial c ourt does not impose any additional provisions
at sentenc ing, the t er m ‘c o n d i t i ons’ ref ers only to the minor’s completion of his or her
sentenc e and the minor’s adher ence to the I llinois Depa rtment of Correc tions (I DOC) rules and regulations during that t i m e. ” In re Omar M.
, 2012 I L App (1st) 100866, ¶ 84; Christ opher K.
, 348 I ll. App. 3d at 146, aff’d in part & rev’d in part on other grounds
, 217 I ll. 2d 348, 363 (2005). As a r esult, this ter m is neither fac ially vague nor vague as a pplied
to defe ndant. In re Omar M.
, 2012 I L App (1 s t ) 1 0 0 866, ¶ 97 (“w e find that the statute satisfied due proce ss [as app l i ed ] fo r t he same rea sons that the statute is not vague on its fac e”)

.

¶ 106 CONCLUSI ON ¶ 107 On t h i s d i re ct appea l, defe ndant claimed: (1) that the trial court committed reve rsible

-20-err or by ref using to instruct the jury on battery
, wher e battery is a lesser- included offe nse of mob action and, thus, a lesser included offe nse of felony murder predic ated on mob action; (2) that this court must vaca te defe ndant’s conviction for felony murder, wher e the same acts that formed the basis for murder also formed the basis for the predic ate felony of mob action; and (3) that the tri al court err ed in designating defe ndant’s case as an EJ J P case , wher e defe ndant wa s o n l y 14 year s old, he had no history of delinquency
, his acts involved no preme ditation or use of a wea pon, and he was amena

ble to treatment as a juvenile offe nder. ¶ 108 Def

endant also clai m ed t h at t he EJ J P statute must be struck down as unconstitutional bec au s e it violates a juvenile defe ndant’s due proce ss rights, and beca use it is unconstituti onally vague. Specifica lly
, defe ndant argued: (1) that the EJ J P statute violates

a juvenile defe ndant’s righ t t o du e proce ss beca use it subjects him to the incre ased punishment of a conditional adult sentenc e without a jury finding
, in violation of Apprendi

v. New Jerse

y , 530 U.S. 466 (2000); and (2) that it is unconstitu t i o n ally vague beca use it does not provide fair war ning of the conduct that will invoke the imposit ion of the adult
sentenc e. ¶ 109 For the fore g oing rea sons, we do not fin d t h es e ar guments persua sive and, thus, we aff irm.

¶ 110 Affir

med.

-21-