2025 IL App (2d) 250048-U No. 2-25-0048 Order filed December 29, 2025
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of McHenry County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-875 ) ROBERT J. GOULD, ) Honorable ) Tiffany E. Davis Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s postconviction petition is affirmed where defendant’s evidence was not arguably newly discovered and would not arguably place the trial evidence in a different light and undermine confidence in defendant’s guilt.
¶1 Defendant, Robert J. Gould, appeals the circuit court’s order dismissing his first-stage
postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2022)). Defendant contends that his wife, Theresa Gould’s, affidavit contradicting the
victims’ testimony detailing allegations of sexual assault is (1) newly-discovered evidence, (2)
material and noncumulative, and (3) of such a conclusive character it would probably change the 2025 IL App (2d) 250048-U
result on retrial. In response, the State argues that defendant’s claim is forfeited, the affidavit is
not newly discovered, Theresa’s testimony is cumulative, and her statement was not conclusive
evidence of defendant’s actual innocence. For the following reasons, we affirm.
¶2 I. BACKGROUND
¶3 The facts underlying defendant’s conviction, as relevant to the issues raised in his direct
appeal, may be found in our prior decision. See People v. Gould, 2023 IL App (2d) 230032-U.
Therefore, we repeat only those facts here that remain relevant and provide context to the instant
appeal.
¶4 A. Trial and Direct Appeal
¶5 In 2017, defendant was indicted for 10 counts of predatory criminal sexual assault, 8 counts
of criminal sexual assault, and 3 counts of aggravated criminal sexual abuse of his children, Ro.G.
(born February 7, 1997) and Re.G. (born March 13, 1999). The offenses were alleged to have
occurred between February 7, 2001, and February 6, 2015.
¶6 At trial, Re.G. testified that defendant sexually abused her when she was between the ages
of 3 and 15 years old. She stated that the abuse began as touching or fondling but, eventually,
escalated to penetration. Re.G. recalled several instances of abuse. Namely, she testified that
defendant had “grope[d], fondle[d], or finger[ed]” her in the car; defendant forced her to remain
underwater during a bath so he could “touch [her] and finger [her]”; defendant had tickled, fondled,
or groped some of her siblings in front of her; defendant forced her to perform oral sex on him in
her uncle’s bedroom, his bedroom, and his shower, especially on his birthdays while she was
between the ages of 6 or 7 until she was about 15 or 16 years old; and defendant “assaulted” her
in his childhood bedroom at her grandmother’s house.
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¶7 Regarding vaginal penetration, Re.G. recalled that defendant never used condoms but
ejaculated during all his encounters with her. Defendant penetrated Re.G. so many times,
especially after she turned 15 years old, that she could not estimate the number of occurrences.
She once tried to count the occurrences but quit after number 1,157 because it was “too depressing
to count anymore.” Specifically, Re.G. recalled that, on many occasions, defendant used a
“dolphin beach towel” to bind her wrists or gag her while he penetrated her. On one such occasion,
when Re.G. was 10 or 11 years old, she tried to resist defendant’s advances, so, he bound her arms
with the towel and vaginally penetrated her. During this encounter, he also stated that he would
harm the “little ones” and that “he would make [her] watch and then he would kill [her].”
¶3 Around the age of 12, Re.G. resisted defendant’s sexual conduct by hitting, punching, and
biting defendant. He responded by “d[igging]” a kitchen knife into her wrist and stating he would
“make it look like a suicide.” Eventually, he turned Re.G over and “raped” her anally. Re.G. also
recounted that, after she began menstruating, defendant “raped” her anally in his bedroom, in the
barn, and the hayloft.
¶4 Re.G. also recalled an instance where defendant came into her bedroom, put his hand over
her mouth, pinned her arms, told her to be quiet, pulled her Snoopy nightgown up, and “raped”
her. Re.G. noted that she experienced pain during this incident that caused her to “dissociate,” so,
she only remembers waking up, fixing her nightgown and underwear, and going back to sleep.
Re.G. discovered blood in her underwear and on her nightgown the next morning, so she told her
mother, Theresa, about it. Theresa stated that it was “probably a bloody nose or a lost tooth.” Re.G.
did not know if her siblings witnessed the encounter.
¶5 Re.G. testified that, occasionally, people would be home during a sexual encounter with
defendant. A few times, Theresa walked in on defendant “raping” Re.G., but she did not intervene.
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Other times, Theresa would be out doing the paper route while defendant assaulted her. Re.G.
recounted that much of the sexual abuse happened on Sundays and in the summer because the
remainder of her family was busy or otherwise occupied. Regarding her siblings, Re.G. had neither
witnessed any acts between defendant and Ro.G., nor discussed Ro.G.’s allegations against
defendant, despite being aware of those allegations. Re.G. only witnessed Ro.G. after she was
“very sick,” often had blood on her, and would be naked and unresponsive in their shared bedroom.
¶6 Ro.G. also testified at defendant’s trial. She could not recall the number of times that
defendant “inappropriately touched” her; however, she testified that her encounters with defendant
escalated as she got older. Beginning when she was young, it was common for defendant to bathe
her; he also used this time to touch her vagina. Ro.G. recalled that, during another bathroom
encounter, defendant rubbed his penis against her lips and pushed it in her mouth while they were
in the shower. At five years old, defendant first vaginally penetrated Ro.G. with his penis. Then,
before age 12, on Mother’s Day weekend, defendant touched Ro.G.’s back and chest in her
grandmother’s back bedroom.
¶7 During bedtime, defendant would touch the children’s backs and chests. There were many
times Ro.G. woke up with defendant on top of her with his penis inside her vagina. Specifically,
during a bedtime “assault,” defendant told Ro.G. this was a “game,” she was sleeping, and he
would kill her if she told anyone. Ro.G. also recounted other times defendant played a “game”
with her. At five or six years old, defendant spanked Ro.G with a wooden rod and then touched
her vagina with his hand. Defendant stated they were playing a “game,” and they would never play
it again, but she could not tell Theresa. In another “game,” defendant would tackle Ro.G., touch
the side of her breasts, and grind his clothed genitalia against her. Ro.G. witnessed this happening
to Re.G. and another sibling. Ro.G. testified that Theresa even overheard this occur and told
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defendant to get off Ro.G. Ro.G. believed that defendant was also sexually abusing her other
siblings, because she saw defendant touch a sibling’s penis, and there were many times where she
found Re.G. passed out, naked, and on the bedroom floor. However, she never shared details about
her abuse with Re.G.
¶8 Regarding vaginal penetration, Ro.G. recalled a time where defendant dragged her from
the laundry room by her hair, started choking her against a wall, ripped her clothes off, and put his
penis inside her vagina. Another time, defendant and Theresa threatened to take Ro.G.’s SAT
preparation book, so, in response, Ro.G. threatened to call child protective services. That night,
defendant took Ro.G. from bed, repeatedly slammed her head against the wall, and put his penis
in her vagina.
¶9 At trial, defendant testified that the alleged sexual acts did not occur and that he never
inappropriately touched any member of his family.
¶ 10 Ultimately, defendant was found guilty on every count. He timely appealed. On appeal, he
asserted that he was entitled to a new trial because (1) two potential jurors did not state that they
understood and accepted all the Zehr principles (People v. Zehr, 103 Ill. 2d 472 (1984)), and (2)
the volume of other-crimes evidence was unduly prejudicial. Neither error was raised in a post-
trial motion. We held that the evidence was not closely balanced and, thus, did not warrant reversal
under Zehr, and the other-crimes evidence was not unduly prejudicial as it reflected less than 20
accounts of no less than 1157 allegations of abuse, corroborated Ro.G. and Re.G.’s accounts in
time and detail, did not confuse the jury, and did not require additional witnesses. Gould, 2023 IL
App (2d) 230032-U, ¶¶ 45, 62. In sum, we affirmed defendant’s convictions and sentences on
appeal. Id., ¶ 67.
¶ 11 B. Pro se Postconviction Petition
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¶ 12 On October 28, 2024, defendant filed a pro se postconviction petition alleging newly
discovered evidence of actual innocence. Namely, defendant alleged that testimony from Theresa
would likely change the result of his case on retrial. He asserted that Theresa’s testimony was
newly discovered, despite his knowledge about her testimony at the time of trial, because he could
not force his wife to waive her fifth amendment right against self-incrimination. Theresa affirmed
that she planned to testify at trial but was “threatened” by the prosecutor that “they would come
after me if I did not come to testify.” 1 Theresa concluded, “Since they did not come after me, it
was a lie.” She stated that threat of prosecution prevented her from traveling and testifying on
defendant’s behalf. Theresa averred that she would have testified at trial, that she had always lived
with defendant, Ro.G., and Re.G., and she had never heard or witnessed defendant doing anything
inappropriate with Ro.G. or Re.G. She believed that she would have heard or witnessed a sexual
encounter had anything occurred.
¶ 13 On January 15, 2025, the circuit court dismissed defendant’s pro se postconviction petition,
finding that Theresa’s statement was not newly discovered evidence, as it could have been
discovered sooner with due diligence. The court noted that Theresa was both an uncooperative and
unavailable witness for trial, as she resided in Canada and was alleging fifth amendment
protections. The court stated that Theresa’s reluctance to testify was not sufficient to claim fifth
amendment privilege because there were no reasonable grounds to fear self-incrimination. Further,
the court concluded that Theresa’s testimony was admittedly known to defendant at the time of
trial and not of such a conclusive character to change the result of the case on retrial, as her
1 The Office of the State Appellate Defender asserts that Theresa’s “did not come” language is
“obviously a scrivener’s error given the other statements in the affidavit.”
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statements contained “only possible impeachment evidence of a portion of the witness’ testimony.”
Accordingly, the court dismissed the petition at frivolous. This timely appeal followed.
¶ 14 II. ANALYSIS
¶ 15 On appeal, defendant contends that the circuit court erred by not advancing his pro se
postconviction petition to second-stage proceedings, where Theresa’s testimony could not have
been elicited sooner, even through the exercise of due diligence, as she resided outside the
subpoena powers of the State. Defendant also asserts that her testimony was arguably material,
noncumulative, and would probably change the result on retrial. In response, the State argues that
Theresa’s testimony was not new, noncumulative, or of such a conclusive character that it arguably
undermines the confidence in defendant’s guilt. Additionally, the State asserts that defendant’s
claim is forfeited, as it should have been raised on direct appeal. We do not conclude that
defendant’s claim is forfeited; however, his claim would not arguably change the result of his case
on retrial.
¶ 16 The Act allows a defendant to collaterally attack his or her conviction if it resulted from a
substantial denial of his constitutional rights or where the defendant is alleging actual innocence.
725 ILCS 5/122-1 (West 2024). At the first stage of review, the circuit court reviews the petition
independently and determines whether the petition is frivolous or patently without merit. People
v. Wallace, 2018 IL App (5th) 140385, ¶ 27. A petition is considered frivolous “only if the petition
has no arguable basis in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 11 (2009). Meaning, the
petition is based on an indisputably meritless legal theory or fanciful factual allegation. Id. at 16.
To demonstrate a meritorious petition at the first stage, a defendant need only state the gist of a
constitutional argument. This requirement is met if a defendant alleges “enough facts to make out
a claim that is arguably constitutional for purposes of invoking the [Post-Conviction Hearing]
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Act.” Id. at 9; see also People v. White, 2014 IL App (1st) 130007, ¶ 18. If the petition makes a
gist of an actual-innocence claim, it advances to the second stage; conversely, if the circuit court
determines that the petition is frivolous and patently without merit, it may summarily dismiss the
petition. Hodges, 234 Ill. 2d at 10-11. The summary dismissal of a post-conviction petition is
reviewed de novo. Id. at 9.
¶ 17 A. Waiver and Forfeiture
¶ 18 First, the State opines that defendant’s claim is forfeited, as it should have been raised on
direct appeal. In response, defendant argues that, despite his knowledge of Theresa being a
potential witness, the claim is not barred because the substance of Theresa’s testimony was not a
part of the record on appeal. We agree.
¶ 19 A postconviction proceeding is not a substitute for a direct appeal, rather, it is a collateral
attack on a prior conviction and sentence. People v. Edwards, 2012 IL 111711, ¶ 21. “The purpose
of the post-conviction proceeding is to allow inquiry into constitutional issues involved in the
original conviction and sentence that have not been, and could not have been, adjudicated
previously on direct appeal.” People v. Towns, 182 Ill. 2d 491, 502 (1998). Accordingly, issues
that could have been raised on direct appeal, but were not, are considered waived. 725 ILCS 5/122-
3 (West 2024) (stating that “[a]ny claim * * * not raised in the original or an amended petition is
waived”).
¶ 20 Defendant’s actual-innocence claim is not barred by waiver or forfeiture here. As defendant
asserts, Thersa’s affidavit was not included in the record prior to the filing of his postconviction
petition. There was no opportunity for appellate counsel to allege trial counsel’s ineffectiveness
for failing to call Theresa as a witness because the record at the time of the direct appeal was
devoid of information regarding Theresa’s testimony. See People v. Wilson, 2013 IL App (1st)
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112303, ¶¶ 17-18 (finding res judicata does not apply, where the relevant witness’ testimony was
not included in the record prior to the filing the postconviction petition); People v. Tate, 2012 IL
112214, ¶ 14 (finding not forfeited the defendant’s claims of ineffective assistance for failing to
call a witness, where the relevant testimony was not included in the record before filing the
postconviction petition). Accordingly, defendant’s claim is not barred.
¶ 21 B. Actual-Innocence Claim
¶ 22 Regarding actual-innocence claims, a defendant must arguably show that his evidence is
“(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that
it would probably change the result on retrial.” People v. Robinson, 2020 IL 123849, ¶ 47.
Defendant asserts that Theresa’s affidavit is newly-discovered, noncumulative evidence that would
change the result of his case on retrial. In response, the State asserts that Theresa’s testimony is
not newly discovered, rather it is cumulative of testimony at trial. Additionally, the State argues
that Theresa’s affidavit fails to undermine the confidence of defendant’s guilt.
¶ 23 1. Newly-Discovered Evidence
¶ 24 Here, defendant asserts that Theresa’s affidavit is newly discovered, despite his knowledge
at trial of Theresa’s potentially favorable testimony. Specifically, defendant asserts that, due to
Theresa’s unavailability—living outside the subpoena power of Illinois—no due diligence could
have compelled her testimony sooner. In response, the State argues that the evidence was not newly
discovered because defendant knew about her potential testimony at trial, and she could not allege
she was unavailable for fear of self-incrimination. Although we need not determine that
defendant’s evidence was newly discovered—as defendant’s evidence is arguably not so
conclusive as to change the result of his case on retrial—we, nonetheless, conclude that defendant’s
evidence was also not arguably newly discovered.
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¶ 25 Newly discovered evidence is defined as, “ ‘evidence that was unavailable at trial and could
not have been discovered sooner through due diligence.’ ” People v. Edwards, 2012 IL
111711, ¶ 34 (quoting People v. Harris, 206 Ill. 2d 293, 301 (2002)). A witness’ exculpatory
affidavit can be considered “newly discovered,” despite the defendant’s knowledge of his or her
testimony at the time of trial, if the witness was unavailable to the defendant. People v. Parker,
2012 IL App (1st) 101809, ¶ 83. For example, “ ‘no amount of diligence c[an] force[] []
codefendants to violate their fifth amendment right to avoid self-incrimination,’ ” thus, a
codefendant’s affidavit may constitute newly-discovered evidence, although the codefendant was
known to defendant at the time of trial. Id. (quoting People v. Molstad, 101 Ill. 2d 128, 135 (1984)).
As relevant here, the supreme court has held that moving outside the subpoena powers of the State
may make a witness unavailable and his or her resulting affidavit “newly discovered,” especially
where defendant was unaware of the exculpatory testimony at the time of trial, and defendant was
unaware that he needed to take steps to subpoena an out-of-state witness. People v. Ortiz, 235 Ill.
2d 319, 334 (2009) (finding that a witness affidavit was newly discovered, where he failed to admit
to witnessing the offense and made himself unavailable by moving to Wisconsin); see also
Edwards, 2012 IL 111711, ¶ 37 (noting that failure to attempt to subpoena a witness or explanation
as to why subpoenas were not issued showed a lack of due diligence).
¶ 26 At the time of defendant’s trial, Theresa was unavailable as a witness because she lived in
Canada. 735 ILCS 35/1 et seq. (West 2022) (Uniform Interstate Depositions and Discovery Act;
listing the requirements for issuing a foreign subpoena). However, defendant was aware of
Theresa’s potential testimony at the time of his trial. In fact, a trial date was continued so that
Theresa could obtain a new passport to facilitate traveling for defendant’s trial. Nonetheless,
Theresa did not testify or appear at defendant’s trial, and defendant failed to take any steps at the
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time of trial to compel her presence. Defendant did not exert any diligence, let alone due diligence,
to attempt to subpoena Theresa or otherwise obtain her testimony. Furthermore, there is no
evidence in this record explaining why defendant’s attorney failed to take steps to secure testimony
from Theresa. Accordingly, because defendant knew of Theresa’s testimony and failed to arguably
demonstrate due diligence in securing her testimony for trial, defendant cannot show that Theresa’s
affidavit was newly discovered. See Edwards, 2012 IL 111711, ¶ 37.
¶ 27 2. Noncumulative
¶ 28 In addition to being newly discovered, evidence in support of an actual-innocence claim
must be material and not merely cumulative of other trial evidence. Robinson, 2020 IL 123849, ¶
47. Here, the State contends that the information in Theresa’s affidavit only echoed defendant’s
testimony at trial. Evidence is material where it is relevant and probative of defendant’s innocence,
and it is noncumulative where additional information is presented compared to what was before
the jury. People v. Coleman, 2013 IL 113307, ¶ 96. Here, Theresa’s claims, that she always lived
with defendant and the victims, she never heard or witnessed defendant acting inappropriately with
the victims, and her belief that she would have witnessed any inappropriate behavior had it
occurred, were arguably relevant to and probative of defendant’s guilt or innocence. Moreover,
her affidavit also arguably corroborates defendant’s otherwise uncorroborated defense, primarily
by impeaching the victims; therefore, it is arguably noncumulative. See People v. Sparks, 393 Ill.
App. 3d 878, 886 (2009) (noting that affidavits may not be cumulative, where the defendant and
the State’s witness presented conflicting versions of the incident at trial, and no other evidence at
trial corroborated the defendant’s testimony); see also People v. Warren, 2016 IL App (1st)
090884-C, ¶ 81.
¶ 29 3. Conclusiveness
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¶ 30 Even assuming that the information contained in Theresa’s affidavit was arguably newly
discovered, material, and noncumulative, we must determine whether it was of such a conclusive
character that it would probably change the result on retrial. Defendant argues that Theresa’s
affidavit conflicts with Ro.G.’s and Re.G.’s testimony that Theresa witnessed sexual encounters
between the victims and defendant. In turn, the State argues that Theresa’s affidavit is conclusory,
contradicted by the record, and merely impeaches some of Ro.G.’s and Re.G.’s testimony but
offers no evidence that defendant did not abuse his daughters during the alleged period. We agree.
Theresa’s affidavit is not arguably so conclusive as to change the verdict on retrial.
¶ 31 In the final step of establishing an actual-innocence claim, a defendant must demonstrate
that his evidence is of such a conclusive character that it would probably change the result on
retrial. Robinson, 2020 IL 123849, ¶ 47. Conclusive evidence is evidence that, when considered
with the trial evidence, would probably cause a different result at defendant’s trial. Coleman, 2013
IL 113307, ¶ 96. “The conclusive character of the new evidence is the most important element of
an actual innocence claim.” Robinson, 2020 IL 123849, ¶ 47. The evidence need not be entirely
dispositive to likely alter the verdict on retrial; rather, the defendant must present evidence that
places the trial evidence in a different light and undermines the court’s confidence in the
defendant’s guilt. Id., ¶ 56. Probability is the key to determining whether the court would reach a
different result after considering the new and old evidence. Id., ¶ 48. Moreover, mere impeachment
evidence typically is not of such conclusive character as to justify postconviction relief. People v.
Harper, 2013 IL App (1st) 102181, ¶ 49; see also Ortiz, 235 Ill. 2d at 335.
¶ 32 Initially, Theresa’s statement that, if abuse occurred in her home, she would have witnessed
it, and, because she did not witness abuse, nothing occurred, is conclusory and not well-pleaded.
Theresa’s allegation is not specific or supported by facts. See People v. Burt, 205 Ill. 2d 28, 35-36
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(2001) (noting that “nonfactual and nonspecific assertions which merely amount to conclusions
are insufficient to require a hearing under the Post-Conviction Hearing Act”). Moreover, this
portion of Theresa’s affidavit is also rebutted by Ro.G.’s and Re.G.’s trial testimony that Theresa
was not aware of most instances of abuse because she was not home, on her paper route, elsewhere
in the home, or asleep. In fact, Re.G. recounted that a disproportionate amount of sexual abuse
happened on Sundays and in the summer because the remainder of her family was busy or
otherwise occupied. Thus, Theresa’s belief that abuse did not occur because she did not witness it
is not well taken. As such, this portion of the affidavit is not arguably conclusive.
¶ 33 While taking the remaining well-pleaded facts contained in Theresa’s affidavit as true, we
note that the evidence therein is nothing more than impeachment of a small portion of Ro.G.’s and
Re.G.’s testimony. In fact, very little of Ro.G.’s and Re.G.’s testimony indicated that Theresa
witnesses their abuse—seemingly only two allegations were witnessed by Theresa. Nonetheless,
Theresa averred that she never heard or witnessed defendant do anything inappropriate to their
daughters. This contradicts Re.G.’s testimony that Theresa witnessed defendant “raping” her and
failed to intervene, and Ro.G.’s assertion that Theresa witnessed defendant play a “game” where
he inappropriately touched Ro.G. and Theresa told defendant to stop. Theresa’s affidavit does little
to discount the remaining corroborative evidence: Ro.G. and Re.G. both described a similar
escalation of conduct; both siblings believed defendant was sexually abusing the other, each
recounted similar instances of abuse, and neither discussed their individual accounts of abuse with
the other; Ro.G. witnessed Re.G. naked, passed out, and lying on the bedroom floor; Re.G.
witnessed Ro.G. when she was “very sick,” bleeding, naked, and unresponsive; Ro.G. and Re.G.
each saw defendant inappropriately touch another sibling; and both siblings similarly recounted
defendant’s actions pinning another child down and rubbing his genitalia against them. Theresa’s
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evidence, taken as true, does not weigh strongly against this evidence previously presented at trial.
Accordingly, we conclude that Theresa’s affidavit was not “conclusive,” in that the evidence
contained therein, when considered along with the trial evidence, would not arguably place the
trial evidence in a different light and undermine confidence in defendant’s guilt. Robinson, 2020
IL 123849, ¶ 48. Thus, the trial court did not err in dismissing defendant’s petition.
¶ 34 III. CONCLUSION
¶ 35 For the reasons stated, we affirm the judgment of the circuit court of McHenry County.
¶ 36 Affirmed.
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