¶1concurring and dissenting.
¶2I concur with the Court’s holding concerning the McGowan case but respectfully dissent from its conclusion on the sufficiency of the evidence as to the defendant’s age. While there may have been enough evidence here to meet a preponderance of the evidence standard, I cannot agree that the testimony of a sole 16-year-old witness that she “imagine[d]” and “under[stood]” defendant to be over the age of 18 constitutes substantial evidence of probative value that, beyond a reasonable doubt, the defendant was over the age of 18. I also disagree with the Court’s suggestion in several places that defendant’s failure to challenge what little proof the State did offer affects this assessment. I would reverse the judgment of the trial court.
¶3RUCKER, J., joins.