People v. Ngo

NO. 4-07-0688 Filed 10/22/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Livingston County
DAT TAN NGO, ) No. 06CF189
Defendant-Appellant. )
) Honorable
) Harold J. Frobish,
) Judge Presiding.
________________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

In June 2007, a jury found defendant, Dat Tan Ngo,

guilty of two counts of controlled substance trafficking. In

July 2007, the trial court sentenced him to 40 years in prison.

On appeal, defendant argues (1) the State failed to

prove him guilty beyond a reasonable doubt, (2) the prosecutor's

closing argument was improper, and (3) he was deprived of a fair

trial based on his codefendant's statements and defense strategy.

We affirm.

I. BACKGROUND

In October 2006, the State charged defendant with two

counts of controlled substance trafficking (720 ILCS 570/401.1(a)

(West 2006)). In count I, the State alleged defendant knowingly

brought into the State of Illinois with the intent to deliver 900

grams or more of a substance containing methylenedioxymethamphet-

amine (MDMA), also known as ecstasy, a controlled substance.
Count II alleged he knowingly brought into the state 1,500 or

more tablets of a substance containing MDMA with the intent to

deliver. The State also charged codefendant, Loan Bui, with the

same offenses in case No. 06-CF-190.

In May 2007, the State moved to consolidate the trials

of the two defendants, which the trial court granted over defen-

dant's objection. In June 2007, the consolidated jury trials

commenced. Illinois State Police trooper Jeffery Enderli testi-

fied he used a laser device to observe a white vehicle traveling

74 miles per hour on Interstate 55 on October 21, 2006. He

executed a traffic stop and found defendant in the driver's seat

and codefendant in the passenger seat. Enderli asked defendant

for his driver's license, but defendant stated he did not have it

as he had lost his wallet. Enderli stated defendant was acting

"very nervous" and eventually wrote out his name and address.

Enderli discovered the information provided by defendant was

incorrect and asked him to come back to the squad car. Defendant

then told Enderli the vehicle belonged to Bui, his sister.

Enderli exited his squad car and asked Bui for consent to search

the vehicle, and she consented.

While conducting a search of the vehicle, Enderli

noticed a car seat in the rear passenger area. As he lifted it

up, he discovered a towel "wedged up" in the bottom. He found a

rectangular box designed for storing a power tool wrapped in the

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towel. Inside the tool box, Enderli found four plastic Zip-loc

bags. Three of the bags contained a "large quantity of a green

round-shaped pills [sic] with a Superman logo stamped" on the

pills. The fourth bag contained light-pink round-shaped pills

with a pear shape on them. Enderli suspected the pills were

ecstasy.

After the discovery of the suspected ecstasy, Enderli

secured defendant in handcuffs, placed him in the squad car, and

read him his rights. Upon questioning, defendant told Enderli

the pills were ecstasy. Illinois State Police sergeant Vidal

Panizo testified defendant stated he was transporting these pills

from Michigan to St. Louis for a friend for $5,000. Defendant

told him he received the pills, repackaged them in four Zip-loc

bags, put them in a box and wrapped a towel around it, then

placed the box under the car seat. The parties stipulated

exhibit No. 1 contained 1,106 pills, exhibit No. 2 contained

1,017 pills, exhibit No. 3 contained 1,022 pills, and exhibit No.

4 contained 661 pills.

Kerry Nielsen, a forensic scientist with the Illinois

State Police, testified he randomly selected 10 tablets from each

of the four bags. He stated the pills were similar and consis-

tent in appearance. The results of testing the 40 tablets

revealed the presence of MDMA. In exhibit No. 1, Nielsen found

the 10 tablets tested weighed 3.0 grams and the remaining tablets

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weighed 309.8 grams. In exhibit No. 2, the 10 tablets tested

weighed 3.3 grams and the remaining tablets weighed 337.3 grams.

In exhibit No. 3, the 10 tablets tested weighed 3.3 grams and the

remaining untested tablets weighed 339.2 grams. In exhibit No.

4, the 10 tablets tested weighed 3.3 grams and the remaining

tablets weighed 217.6 grams.

On cross-examination, Nielsen testified he did not test

all of the tablets because the prosecutor suggested 10 out of

each bag "would be a good sample." He stated "it would not be

feasible to test every tablet" as it would be "very time consum-

ing." Nielsen had no opinion on the tablets he did not test.

The 40 pills he tested weighed 12.9 grams.

Defendant and codefendant exercised their constitu-

tional right not to testify. See U.S. Const., amend. V. Follow-

ing closing arguments, the jury found defendant guilty on both

counts. The jury also found codefendant guilty on both counts.

Defendant filed a posttrial motion, which the trial court denied.

In July 2007, the court entered a conviction on count II and

sentenced defendant to 40 years in prison. In August 2007,

defendant filed a motion to reconsider sentence, which the court

denied. This appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant argues the State failed to prove him guilty

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beyond a reasonable doubt that he trafficked in 900 grams or more

or 1,500 tablets or more of a controlled substance where the

State's expert failed to conclude either the total tablets seized

from the four separate bags were sufficiently homogeneous or that

the untested tablets contained a controlled substance. We

disagree.

"When reviewing a challenge to the sufficiency of the

evidence in a criminal case, the relevant inquiry is whether,

when 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."

People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326,

331 (2006). The trier of fact has the responsibility to deter-

mine the credibility of witnesses and the weight given to their

testimony, to resolve conflicts in the evidence, and to draw

reasonable inferences from that evidence. People v. Lee, 213

Ill. 2d 218, 225, 821 N.E.2d 307, 311 (2004). A court of review

will not overturn the verdict of the fact finder "unless the

evidence is so unreasonable, improbable[,] or unsatisfactory that

it raises a reasonable doubt of defendant's guilt." People v.

Jones, 219 Ill. 2d 1, 33, 845 N.E.2d 598, 616 (2006).

"When a defendant is charged with pos-

session of a specific amount of an illegal

drug with intent to deliver and there is a

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 lesser included offense of possession of a

smaller amount, then the weight of the seized

drug is an essential element of the crime and

must be proved beyond a reasonable doubt.

[Citation.] A chemist, however, generally

need not test every sample seized in order to

render an opinion as to the makeup of the

substance of the whole. [Citation.] Rather,

random testing is permissible when the seized

samples are sufficiently homogenous so that

one may infer beyond a reasonable doubt that

the untested samples contain the same sub-

stance as those that are conclusively tested.

[Citation.] This rule is based in reason and

practicality." People v. Jones, 174 Ill. 2d

427, 428-29, 675 N.E.2d 99, 100 (1996).

In this case, the State charged defendant with traf-

ficking 900 grams or more of MDMA or, alternatively, 1,500 or

more tablets of MDMA. The charges conformed to the enhanced

Class X felony penalties of 15 to 60 years in prison (720 ILCS

570/401(a)(7.5)(D) (West 2006)) and doubled to 30 to 120 years in

prison for controlled substance trafficking (720 ILCS

570/401.1(b) (West 2006)). However, the Criminal Code of 1961

provides for lesser penalties for smaller amounts of controlled

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substances. See 720 ILCS 570/401(c)(7.5) (West 2006) (a convic-

tion between 5 and 15 grams or 10 to 15 tablets results in a

sentence applicable to a Class 1 felony). Here, the trial court

entered a conviction on count II, which alleged defendant brought

1,500 or more tablets of MDMA into the state. Accordingly, the

amount of the seized contraband was an essential element of the

offense that must be proved beyond a reasonable doubt. Jones,

174 Ill. 2d at 428-29, 675 N.E.2d at 100.

Trooper Enderli testified three Zip-loc bags contained

a large quantity of green round-shaped pills stamped with a

Superman logo. Another Zip-loc bag contained light-pink round-

shaped pills stamped with a pear design. Exhibit No. 1 contained

1,106 pills. Nielsen stated the pills "all appeared similar in

appearance." He randomly selected 10 pills, a "good sample," and

his test revealed the presence of MDMA. Exhibit No. 2 contained

1,017 pills. Nielsen examined all the pills, found they were

"all consistent in appearance," and the test revealed MDMA.

Exhibit No. 3 contained 1,022 pills. Nielsen examined all the

tablets, tested 10, and the test revealed MDMA. Exhibit No. 4

contained 661 pills. Nielsen conducted the same test on 10

pills, which revealed MDMA. Thus, each of the 10 pills randomly

selected from each of the four bags contained MDMA.

Defendant argues Nielsen's opinion fell short of

establishing the tablets in all four bags were homogenous or the

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untested tablets were controlled substances. Defendant points

out Nielsen had no opinion on the tablets he did not test.

Whether the tablets at issue contained a controlled substance was

a question for the trier of fact, here the jury. See People v.

Coleman, 301 Ill. App. 3d 37, 44, 704 N.E.2d 690, 696 (1998). We

find the jury had sufficient evidence to conclude beyond a

reasonable doubt that over 1,500 of the seized tablets were MDMA.

Trooper Enderli testified the three larger bags con-

tained green round-shaped pills with a Superman logo on them.

Nielsen opined the pills in exhibit Nos. 1 and 2, over 2,000

pills, were all similar in appearance. His random sample of 10

pills from each bag conclusively showed the presence of MDMA.

Moreover, defendant admitted to Panizo he was transporting

ecstasy to St. Louis. Further, he told Panizo he repackaged the

pills in four Zip-loc bags, put them in a box, wrapped a green

towel around it, and placed it under the child booster seat.

This was not a case where testing was done on the

contents of some bags, but not others, with an expert rendering

an opinion on all of the bags. Whether a bag contained MDMA was

not subject to speculation or conjecture in this case. All four

bags contained MDMA. The jury could examine exhibit Nos. 1 and

2, see over 2,000 pills that Nielsen found were similar in

appearance, and conclude the pills were all the same. Then, the

jury could reasonably infer the remaining untested pills in the

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four bags were MDMA and thus conclude defendant was in possession

of 1,500 tablets of MDMA as charged by the State. That Nielsen

had no opinion on the untested pills is of no consequence. The

jury had sufficient evidence to infer beyond a reasonable doubt

that the untested samples contained the same substance as those

that were conclusively tested.

B. Closing Arguments

Defendant argues he is entitled to a new trial because

the prosecutor's closing argument repeatedly emphasized all the

tablets were identical and, to a mathematical certainty, con-

tained ecstasy without sufficient evidence allowing for such

argument. We disagree.

Initially, we note defense counsel did not object to

the complained-of statements in the State's closing argument and

did not raise them in a posttrial motion. Thus, we find this

issue forfeited. See People v. Hestand, 362 Ill. App. 3d 272,

279, 838 N.E.2d 318, 324 (2005) (a defendant must object at trial

and raise the issue in a posttrial motion to preserve the issue

for review on appeal). Defendant, however, argues the alleged

error amounted to plain error and asks us to review his claim

under the plain-error doctrine.

In People v. Herron, 215 Ill. 2d 167, 186-87, 830

N.E.2d 467, 479-80 (2005), our supreme court discussed the plain-

error doctrine, in part, as follows:

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 "[T]he plain-error doctrine bypasses

normal forfeiture principles and allows a

reviewing court to consider unpreserved error

when either (1) the evidence is close, re-

gardless of the seriousness of the error, or

(2) the error is serious, regardless of the

closeness of the evidence. In the first

instance, the defendant must prove 'prejudi-

cial error.' That is, the defendant must

show both that there was plain error and that

the evidence was so closely balanced that the

error alone severely threatened to tip the

scales of justice against him. The State, of

course, can respond by arguing that the evi-

dence was not closely balanced, but rather

strongly weighted against the defendant. In

the second instance, the defendant must prove

there was plain error and that the error was

so serious that it affected the fairness of

the defendant's trial and challenged the

integrity of the judicial process."

A prosecutor is afforded wide latitude in making his

closing argument and may comment on the evidence as well as argue

reasonable inferences from the facts. People v. Simms, 192 Ill.

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2d 348, 396, 736 N.E.2d 1092, 1124 (2000). "[C]losing arguments

must be viewed in their entirety, and the challenged remarks must

be viewed in context." People v. Wheeler, 226 Ill. 2d 92, 122,

871 N.E.2d 728, 745 (2007). Further:

"Even if prosecutorial comment exceeds the

bounds of proper argument, the verdict must

not be disturbed unless it can be said that

the remark caused substantial prejudice to

the defendant [citation], taking into account

'the content and context of the language, its

relationship to the evidence, and its effect

on the defendant's right to a fair and impar-

tial trial.'" People v. Williams, 192 Ill.

2d 548, 573, 736 N.E.2d 1001, 1015 (2000),

quoting People v. Kliner, 185 Ill. 2d 81,

152, 705 N.E.2d 850, 886 (1998).

Even prejudicial statements by the prosecutor may be cured by the

trial court's proper instructions of law. Simms, 192 Ill. 2d at

396, 736 N.E.2d at 1124-25. "The accused is denied a fair and

impartial trial where the prejudice reveals a total breakdown in

the integrity of the judicial process." People v. Evans, 209

Ill. 2d 194, 224, 808 N.E.2d 939, 956 (2004).

In the case sub judice, defendant sets forth two

allegations of error in the State's closing arguments. First, he

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contends the prosecutor repeatedly argued the tablets were

identical without evidence to support those statements. The

prosecutor offered, in part, the following:

"It will be rather obvious to you that every

tablet is identical.

* * *

***In each instance, ten drawn. And

here is the important thing--at random--from

among these, and you can eyeball them. You

can't miss it. Every one is identical in

each bag.

* * *

***So let's just take them bag by bag

where you know they are absolutely identical.

And please look at them. You will see that.

You will see how identical they are."

At trial, Nielsen testified about the large number of

tablets found in the four plastic bags. He stated he randomly

selected 10 tablets out of each bag. He noted they all appeared

similar and consistent in appearance. The prosecutor's comments

cannot be seen to have denied defendant a fair and impartial

trial. The prosecutor was commenting on the expert's testimony

and the evidence before the jury, which included thousands of

similar looking tablets. "[A] prosecutor is permitted to discuss

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subjects of general knowledge, common experience, or common sense

in closing argument." People v. Beard, 356 Ill. App. 3d 236,

242, 825 N.E.2d 353, 359 (2005). Here, the prosecutor could

reasonably comment on the evidence and ask the jury to use its

common sense in looking at that evidence.

Second, defendant argues the prosecutor erroneously

claimed the State proved all the tablets contained ecstasy to a

mathematical certainty. The prosecutor stated, in part, as

follows:

"Now, let's talk a little more, since I am in

that math topic, I am going to hit you with a

little of that junior high math. Do you

remember that formula for figuring out the

odds of something? If you want to figure out

what the odds of something are, it is that

number to the N minus one power. All right.

What does that mean? Well, if I think that

something is 2 to 1, okay? And I do it one

time, then my odds are 2 to 1. If I do it

twice, it is two times two, so I got four of

them. If I do it three times, two times two

times two, it is eight. Now, what is inter-

esting is after you get through those first

few numbers, it starts going up pretty fast.

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When you do that math, if you, again, remem-

ber your junior high math, when you start

doing that with numbers like ten at random

from the sample, two to the nine is 1,024.

That is one of those computer numbers you run

into, that 256, 512, 1,024, those things.

That is what the kilobyte thing goes, I guess

the 1,024, those of you that are familiar

with computers because it is all on that

multiples of two. If you take it in--and I

am starting at if you operate on the assump-

tion that only half of them are just like the

ten, the odds of only half of them being just

like the ten sample, in other words, MDMA,

these identical pills, the odds of that not

being--of even that being the case, that only

half of those pills, 500 of them, are MDMA,

based on that random sampling is 1,024 to 1.

You go out to say oh, well, only a third of

them are MDMA. We don't know what third,

only a third of them. When you do that with

the number three, that ten random pull, it

really gets weirder. You are at one in 59,0-

00 chances that they are 1 in 3. When you

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 get out to 1 in 4, you are going to want this

one. Do the math, please. Multiply it out.

Yes, it is easier with a calculator, but with

a pen and paper you can do it. It is one

million forty-eight thousand and change.

That is the odds of that not--of that coming

out. So even at one of every two pills based

on that ten pill random sampling being MDMA,

only half the odds of it being that small a

percentage, 50 percent, is 10,000--is a thou-

sand plus to one. That is all MDMA."

In rebuttal, the prosecutor stated, in part, as follows:

"Remember something else, too. You know, you

can do the number thing. While I have been

listening to counsel, I wrote it out. I

didn't cheat with the calculator. You do the

two things. That is if only half of that

stuff, and this is the way to come up with

the lowest, if you will, end probability. If

only half of that have stuff isn't what Niel-

sen found in the ten in the random sample,

these two and your 210 that is that 1,024,

that is 1,024 to 1. Again, if I can do it,

junior high math. If you go to 3, only a

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 third of it now. Okay. Only a third of the,

well, what was the total? What was our total

of the pills? Let's see, 661, and these are

each a little over a thousand. Only a third

of 3,600. Okay. Which would get you below

1,500, by the way. But remember what the

odds come out to. Do the math, folks. If I

can do it sitting there at a table, somebody

there can do it. One third, use the number

three, that 10, ten random tries. And every

one of them. This is the miracle 40. 40

times. 40 hits. Boy, wouldn't you love to

do that with the lottery. You could pick

them out. 40 random numbers and every one a

winner. An absolute winner. I mean, it gets

to the point of absurdity when you do it one

in three the odds are 58,000 and change to 1

of only a third of those being MDMA."

Here, Nielsen testified he picked 10 tablets at random

from each bag. In his closing argument, the prosecutor's attemp-

ted calculations sought only to demonstrate the long odds that

the remaining tablets, which were similar in appearance, did not

contain ecstasy. The prosecutor told the jurors to "do the math"

themselves, indicating he was not presenting his calculations as

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evidence of mathematical certainty but as a commonsense argument

that it was unlikely the remaining tablets did not contain

ecstasy. Although it would be best for a prosecutor "to avoid

any reference to statistics not in the record" (People v.

Prewitt, 160 Ill. App. 3d 942, 948, 513 N.E.2d 977, 981-82

(1987)), we find no prejudice.

Considering the nature of the evidence against defen-

dant and the entire context of the prosecutor's closing argu-

ments, we find defendant was not denied his right to a fair

trial. Moreover, the trial court instructed the jury that

closing arguments were not evidence and arguments not based on

the evidence were to be disregarded. Thus, we find no plain

error.

C. Joint Trial

Defendant argues codefendant's statements and antago-

nistic defense deprived him of a fair trial. In the alternative,

defendant argues he received ineffective assistance of counsel

when counsel failed to request a severance or preserve the issue

for review.

In this case, the trial court granted the State's

motion to consolidate the cases over defense counsel's objection.

The court noted it would revisit the issue if counsel desired.

Defense counsel did not move to sever before trial. Further,

counsel did not raise this issue in a posttrial motion. Thus,

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defendant has forfeited the argument on appeal.

Defendant, however, asks this court to review the issue

as a matter of plain error. He does not argue the evidence was

closely balanced. Instead, he argues the trial court's violation

of his right to severance implicated his constitutional rights to

due process, confrontation of witnesses, and the privilege

against self-incrimination.

"It is well established in Illinois that defendants

jointly indicted are to be jointly tried unless fairness to one

of the defendants requires a separate trial to avoid prejudice."

People v. Harris, 123 Ill. 2d 113, 158, 526 N.E.2d 335, 355

(1988). "Mere apprehensions of prejudice are not enough."

People v. Bean, 109 Ill. 2d 80, 92, 485 N.E.2d 349, 355 (1985).

A trial court has the discretion whether to grant or deny a

motion to sever and that decision will not be reversed on appeal

absent an abuse of that discretion. Harris, 123 Ill. 2d at 159,

526 N.E.2d at 355. On appeal, the reviewing court is not to

decide whether the cases should have been severed "based on [the]

subsequent events during the trial." Bean, 109 Ill. 2d at 100,

485 N.E.2d at 358; accord People v. Daugherty, 102 Ill. 2d 533,

545, 468 N.E.2d 969, 974 (1984); People v. McCann, 348 Ill. App.

3d 328, 336, 809 N.E.2d 211, 218 (2004).

Two forms of potential prejudice have been identified

by the courts. "The first type occurs when a codefendant has

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made hearsay admissions that implicate the defendant. The

defendant may be denied his constitutional right of confrontation

if the codefendant's hearsay admission is admitted against him

and the defendant is unable to cross-examine the codefendant

because the latter does not testify." Daugherty, 102 Ill. 2d at

541, 468 N.E.2d at 973.

Here, the first form of prejudice does not apply. The

State did not indicate prior to trial that out-of-court state-

ments made by codefendant would be used to implicate defendant.

Moreover, even if subsequent events at trial are considered (see

Daugherty, 102 Ill. 2d at 545, 468 N.E.2d at 974), no prejudice

was shown. Codefendant did not testify. Further, Trooper

Enderli's testimony concerning his conversation with Bui at the

traffic stop did not include accusations or implications of

defendant's involvement in the trafficking of controlled sub-

stances. Instead, Bui greeted the trooper, asked why the occu-

pants were stopped, told the trooper nothing illegal was in the

vehicle, and consented to a search.

The second form of prejudice occurs "when the codefen-

dants' defenses are so antagonistic to each other that one of the

codefendants cannot receive a fair trial jointly with the oth-

ers." People v. Bramlett, 211 Ill. App. 3d 172, 178, 569 N.E.2d

1139, 1144 (1991). "Actual hostility between the two defenses is

required [citations]." Bean, 109 Ill. 2d at 93, 485 N.E.2d at

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355.

In this case, the trial court was not presented with

specific statements implicating defendant or specific antagonis-

tic defenses to support a severance. During the motion to

consolidate, defense counsel objected, saying he was not exactly

sure what codefendant was going to say or do but thought it might

be a situation of inconsistent defenses. Codefendant's counsel

explained Bui's defense was that she did not know about the drugs

and, if the drugs were present, defendant was the one who placed

them in the vehicle.

Codefendant's defenses were not so antagonistic that

defendant could not receive a fair trial. "Defenses are antago-

nistic when each codefendant implicates the other in the offense

and professes his own innocence." McCann, 348 Ill. App. 3d at

335, 809 N.E.2d at 217. At the motion to consolidate, the State

referenced letters between defendants wherein defendant suggested

to Bui that he was going "to take the heat" for the crimes.

Thus, Bui would have little reason to accuse defendant if he was

planning on taking the blame. The State's evidence indicated

defendant gave a false name to Enderli, told Enderli the pills

were ecstasy, and told Panizo he was transporting the pills to

St. Louis for $5,000. In his closing arguments, defendant's

counsel did not try to pin the blame on Bui. Counsel did not

even dispute the pills were defendant's. Instead, counsel argued

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the State failed to prove the minimum weight and number of pills

contained ecstasy as charged in the information. This was not a

case, as in Bean, 109 Ill. 2d at 96, 485 N.E.2d at 357, where one

defendant accused the other of murder while claiming he was not

present at the murder scene. Moreover, this case cannot be said

to have become "more of a contest between the defendants than

between the State and an individual defendant." Bean, 109 Ill.

2d at 94, 485 N.E.2d at 355. The defenses were not so antagonis-

tic that defendant could not receive a fair trial. Thus, we find

no plain error. As we find no error in the consolidation of the

trials, we need not address defendant's claim that trial counsel

was ineffective.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment. As part of our judgment, we award the State its $50

statutory assessment against defendant as costs of this appeal.

Affirmed.

McCULLOUGH and STEIGMANN, JJ., concur.

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