People v. White ( 2016 )

Illinois Official Reports Digitally signed by
Reporter of Decisions
Reason: I attest to the
accuracy and integrity of
Appellate Court this document
Date: 2016.02.19 09:38:52
-06'00'
People v. White, 2015 IL App (1st) 131111
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption SAMUEL WHITE, Defendant-Appellant.
District & No. First District, Third Division
Docket No. 1-13-1111
Filed December 16, 2015
Rehearing denied February 8, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 12-CR-9459; the
Review Hon. Thaddeus L. Wilson, Judge, presiding.
Judgment Affirmed in part; vacated in part; cause remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Rachel M. Kindstrand, all
Appeal of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Tasha-Marie Kelly, and Edward Wasilewski, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the
judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Samuel White was found guilty of being an armed
habitual criminal as well as two counts of armed violence, unlawful possession of a weapon
by a felon, and two counts of possession of a controlled substance. After determining that
several counts merged, the trial court imposed three concurrent 18-year prison terms for the
armed habitual criminal offense and the two counts of armed violence. On appeal, defendant
asserts that the evidence was insufficient to sustain all three convictions because each of
those offenses required the State to prove defendant had a handgun and the police officer’s
testimony that he saw defendant with a handgun was contrary to human experience.
Defendant also asserts that the evidence was insufficient to sustain his armed habitual
criminal conviction because his underlying conviction for domestic battery did not constitute
a necessary predicate offense. Defendant further asserts that one or both of his armed
violence convictions should be vacated and that his sentence was excessive.
¶2 I. BACKGROUND
¶3 Defendant was charged with being an armed habitual criminal in that on March 21, 2012,
he “knowingly or intentionally possessed a firearm, to wit: [a] handgun, after having been
convicted of aggravated domestic battery under case number 09CR-22130 and first degree
murder under case number 94CR-14140.” We note that the conviction under case number
09CR-22130 was actually for domestic battery, not aggravated domestic battery.
Additionally, defendant was charged with one count of armed violence based on possessing
5-Methoxy-N, N-Diisopropyltryptamine while armed with a handgun and another count of
armed violence based on possessing N-Benzylpiperazine while armed with a handgun.
Furthermore, defendant was charged with two counts for separately and unlawfully
possessing those same controlled substances as well as unlawful use of a weapon by a felon.
¶4 At trial, Officer Brian McDevitt testified that at about 10 p.m. on March 21, 2012, he was
working with Officer May and Officer Carey in an unmarked car. Officer McDevitt was in
civilian dress but was wearing a ballistics vest bearing a police insignia. Additionally, Officer
McDevitt’s duty belt and firearm were visible. His partners were similarly dressed. At about
10:30 p.m., the officers responded to a call of shots fired in the area of 6535 South California
Avenue. Although the officers observed no one in the courtyard at that address, they saw
defendant and another man in the next courtyard over at 6527 South California Avenue. No
other individuals were in the area. Furthermore, street lamps lit the courtyard and nothing
obstructed Officer McDevitt’s view.
¶5 He quickly walked into the courtyard, which he described as being about 20 feet wide by
50 feet deep, and approached the two men with his gun drawn. Officer McDevitt then saw
defendant reach into his waistband, remove a “small silver handgun with light shining from
the metal,” and walk toward the building’s door. Despite seeing a handgun, Officer McDevitt
did not immediately inform his partners that defendant was armed. At some point, Officer
McDevitt ordered defendant to stop. That fact, however, was not included in the police
report. After defendant opened the door to the building and threw the handgun inside, he
-2-
walked a few steps away from the entrance. Officer Carey secured defendant and the other
individual together, while Officer McDevitt opened the door to the building.
¶6 Inside the building, a second door with a lock separated the hallway from the apartments,
although it was possible that the door was not locked. In addition, Officer McDevitt retrieved
a loaded silver .22-caliber handgun from the hallway floor. No other items were in the area
and the handgun looked like the item that defendant removed from his waistband. After
securing the weapon, Officer McDevitt performed a custodial search of defendant, which
revealed 1 clear plastic bag holding 12 smaller bags of suspect cannabis and another bag
holding 6 multicolored pills containing suspect Ecstasy. The parties later stipulated that the
substances found on defendant’s person contained cannabis, 5-Methoxy-N,
N-diisopropyltryptamine, and N-Benzylpiperazine. Officer McDevitt further testified that
defendant said the gun belonged to him but he had not known it was in his immediate
possession. Moreover, defendant said he had heard gunshots but that examining his handgun
would confirm that it had not been fired. The individual with defendant was permitted to
leave when a search revealed no contraband. Officer McDevitt did not run a check on either
man’s name and did not know whether the other officers did.
¶7 The State then submitted a certified copy of defendant’s 1997 conviction under case
number 94 CR 1414003 for committing first degree murder, and purported to submit a
certified copy of his 2010 conviction under case number 09 CR 2213001 for “Class 4
aggravated domestic battery.” With that said, the certified copy of conviction included in our
record shows that defendant had actually been charged under “720-5/12-3.2(a) (1)” with a
Class 4 felony of “Domestic BTRY/Bodily Harm PRI.” Defendant was sentenced to two
years’ probation and six months in prison for that prior conviction.
¶8 Barbara Taylor testified on defendant’s behalf that on the night in question, she was with
her sister, Fairy Stennis, and her friend, Diane Walton. The three women were talking and
listening to music with the windows down in Stennis’ car, which was parked in front of
Walton’s apartment building at 6527 South California Avenue. In addition, defendant was
sitting in a chair in the courtyard and Taylor could hear him searching through music on his
phone. Taylor knew defendant through Walton, with whom he had an amorous relationship.
Although another man was standing by defendant, Taylor had never seen him before. Taylor
never heard gunshots fired.
¶9 Suddenly, a car pulled up behind the three women and two police officers exited. The
officers ordered defendant and his companion not to move. Taylor then heard over the police
radio that gunshots had been reported in the alley of 6535 or 6537 California. When the three
women exited their car, Stennis and Walton walked into the courtyard while Taylor remained
by the sidewalk. In addition, she did not see defendant throw a gun into the hallway. The
police did, however, cuff defendant’s hands behind his back. Furthermore, the police emptied
defendant’s pockets, which contained his wallet, his cell phone and keys. Moreover, Taylor
heard over the radio that the police were looking for a man with dreadlocks and a white
T-shirt. Defendant wore a white T-shirt but did not have dreadlocks. After more officers
entered the courtyard, the police apparently entered the building. Walton argued with one
officer who was preventing her from entering. The police then exited the building and
announced that they were taking defendant with them.
¶ 10 Stennis testified that before the three women went out on the night in question, Walton
said hello to defendant, her boyfriend. When they returned, they sat in Stennis’ car for about
-3-
an hour while defendant sat outside. The women made eye contact with defendant but did not
say hello. Defendant was playing a game on his iPod but she could not hear any music
coming from it because he was too far away. Another man who was near defendant appeared
to be singing or rapping. The three women never heard gunshots.
¶ 11 After about an hour, a police car stopped behind Stennis’ car. An officer, apparently
Officer McDevitt, proceeded into the courtyard and ordered defendant, who was sitting in a
chair, not to move. Officer McDevitt’s gun was not drawn and Stennis never saw defendant
approach the door. In addition, Stennis and Walton walked into the courtyard while Taylor
remained by the sidewalk. Defendant was then handcuffed to the other man and searched.
Stennis never saw any pills on defendant’s person. Meanwhile, Stennis heard over the police
radio that gunshots had been fired in an alley and the police were looking for a man with a
white T-shirt and dreadlocks. Police officers then entered the building. Over Walton’s
objection, they went inside her apartment. Walton and Stennis followed the officers inside,
where they threw pillows off of Walton’s couch. The officers returned outside empty handed,
however. Both defendant and the other man were taken to the police station.
¶ 12 Defendant testified that on the night in question, he was visiting Walton. He described
her as a “[f]riend, more like a girlfriend but more a friend.” When he arrived, he spoke to her
briefly but then she and her friends went to the store. When they returned, they
acknowledged each other but did not say hello to one another. Defendant did not want to
interrupt their “women’s talk.” During the 45 minutes that the women sat in the car,
defendant played a game on an iPod. Another man, whose name defendant did not know,
stood nearby and rapped. Defendant also talked to the man. Furthermore, defendant did not
hear shots fired.
¶ 13 When the police arrived, they told defendant not to move and he complied. He never
threw a gun into the hallway and Officer McDevitt found no contraband while searching him.
His pockets did contain, however, Walton’s apartment key. In addition, defendant could hear
over the radio that the police were looking for a black man with dreadlocks and a white
T-shirt, and that the man was still standing on the back porch of a building with a gun. After
defendant was arrested, he learned that he was being charged with possessing a firearm and
that controlled substances were allegedly found. Walton visited him in jail and kept contact
with him through the mail but defendant had not spoken to Stennis or Taylor since his arrest.
¶ 14 Officer Elliot Flagg testified in rebuttal that on the night in question, he responded to a
call of shots fired in the 6500 block of South California Avenue. There had been multiple
calls, some of which were directed toward South California Avenue. Officer Flagg found no
one in the alley but subsequently observed Officer May, Officer McDevitt, their partner,
defendant and another black man in the courtyard at 6527 South California Avenue.
Defendant was already handcuffed at this time. At no time did Officer Flagg see women near
the courtyard. Additionally, he never heard a radio transmission describing a man with a
white T-shirt and dreadlocks who was alleged to be standing in any particular location.
Furthermore, Officer Flagg did not see the police recover anything from the building and did
not see a handgun.
¶ 15 Following trial, the court found the police went to the area based on calls of shots fired
and saw defendant standing in the courtyard. The court also found the police saw that
defendant quickly walked toward the door, “reached in his waist, and threw a shiny object
into the hallway.” Defendant was detained and a firearm was retrieved. In addition,
-4-
controlled substances were recovered from defendant’s person. Furthermore, the court found
defendant was a convicted felon based on his prior convictions of “aggravated domestic
battery” and first degree murder. Accordingly, the court found defendant guilty of being an
armed habitual criminal, two counts of armed violence, unlawful possession of a weapon by
a felon, and two counts of unlawful possession of a controlled substance.
¶ 16 Defense counsel subsequently challenged the sufficiency of the evidence to sustain
defendant’s conviction for being an armed habitual criminal. Specifically, counsel argued
that defendant did not have a prior conviction for aggravated domestic battery; rather, his
prior conviction was for domestic battery. Counsel argued that this did not qualify as a prior
conviction necessary to support a requisite element of being an armed habitual criminal. The
trial court disagreed. After finding that several counts merged, the court sentenced defendant
to three concurrent 18-year prison terms for the armed habitual criminal count and the two
armed violence counts. The court subsequently denied defendant’s motion to reconsider his
sentence.
¶ 17 II. ANALYSIS
¶ 18 A. Credibility of the Evidence
¶ 19 On appeal, defendant first asserts the evidence was insufficient to sustain his convictions
because Officer McDevitt’s uncorroborated testimony that he saw defendant with a firearm
and controlled substances was contrary to human experience. In reviewing the sufficiency of
the evidence, we must determine whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the State proved the
essential elements of the crime beyond a reasonable doubt. People v. Belknap, 2014 IL
117094, ¶ 67. The trial court is entitled to determine the weight to be given to the witness’s
testimony, to draw reasonable inferences from the evidence and to resolve conflicts in the
evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). In addition, the trial court may
accept or reject as much of a witness’s testimony as it pleases. People v. Peoples, 2015 IL
App (1st) 121717, ¶ 67. Furthermore, the existence of conflicting evidence does not itself
require a reviewing court to reverse a defendant’s conviction. Id. While a conviction must be
set aside where it is based on testimony that is unconvincing, improbable and contrary to
human experience (People v. Appelt, 2013 IL App (4th) 120394, ¶ 65), we may not substitute
the trial court’s judgment with our own (Sutherland, 223 Ill. 2d at 242).
¶ 20 In this case, defendant was convicted of being an armed habitual criminal and committing
armed violence. The statute for the former offense provides that “[a] person commits the
offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers
any firearm after having been convicted a total of 2 or more times” of certain offenses, which
we will later address in more detail. 720 ILCS 5/24-1.7(a) (West 2012). In addition, “[a]
person commits armed violence when, while armed with a dangerous weapon, he commits
any felony defined by Illinois Law,” with certain exceptions not applicable here. 720 ILCS
5/33A-2(a) (West 2012); see also People v. Anderson, 364 Ill. App. 3d 528, 539 (2006) (the
moment of arrest does not determine whether a defendant is armed). In this case, the armed
habitual criminal and armed violence charges required that defendant possess a handgun.
Furthermore, the felonies underlying defendant’s armed violence convictions were based on
his possession of controlled substances. Defendant asserts, however, that the State failed to
-5-
prove that he had a firearm or controlled substances because Officer McDevitt’s testimony
was incredible.
¶ 21 The trial court unequivocally found that the object defendant threw in the doorway
proved to be a handgun. Cf. People v. Warren, 40 Ill. App. 3d 1008, 1011 (1976) (finding
that the defendant’s conviction could not stand where the trial court expressed continuous
doubts as to the defendant’s guilt and the credibility of the State’s witness). Specifically, the
court found that Officer McDevitt saw defendant throw a “shiny object” into the hallway and
that a firearm was subsequently recovered. The officer’s testimony supports such a finding.
In addition, Officer McDevitt testified that a patdown of defendant revealed controlled
substances. No portion of the officer’s testimony was so incredible as to require the trial
court to disregard the entirety of the officer’s testimony.
¶ 22 Defendant contends it is inconceivable that defendant, having seen an officer, would have
tossed out a handgun and then returned to the courtyard. As a convicted felon, however,
defendant had every reason not to be caught in possession of a handgun. Additionally,
gunshots had just been fired in the area, notwithstanding defendant’s testimony that he did
not hear them. Defendant may very well have wished to avoid police suspecting that he was
the individual responsible. Furthermore, defendant may have believed himself to be more
discrete in removing the handgun than he actually was and may have returned outside to
avoid the appearance of attempting to evade the officers. Moreover, while defendant testified
that he had the key to Walton’s apartment, the trial court was not required to find that
testimony to be credible. Thus, defendant may have returned outside because he could get no
further than the hallway.
¶ 23 Contrary to defendant’s suggestion, it is also not hard to imagine that police would patrol
the immediate area where a shooting was reported, not only the exact address. Although the
record supports defendant’s assertion that Officer McDevitt did not initially see defendant or
his companion committing any crime, defendant ignores that the officer could have initially
approached defendant for more information. Defendant further ignores Officer McDevitt’s
testimony that defendant discarded something from his pants while the officer approached.
Moreover, the absence of fingerprint evidence does not change the result, particularly given
that the officer witnessed defendant’s possession of contraband firsthand and, thus, knew his
identity.
¶ 24 We also note trial counsel’s argument that a police officer who saw a gun in defendant’s
hand would have done more than simply tell him to stop, whether that further action be
alerting his partners to the presence of a gun or invoking a greater show of force. We too find
it surprising that an officer, who was entirely certain upon first sight that the object was a
firearm, would not have taken some further action. With that said, it appears that the trial
court may not have believed Officer McDevitt possessed the level of certainty that he
proclaimed to have at the beginning of the encounter. Specifically, the court found only that
Officer McDevitt saw defendant retrieve a “shiny object” from his waistband. Nonetheless,
the trial court was entitled to find that the object proved to be a handgun given testimony that
no other objects were in the hallway where defendant threw the object, and notwithstanding
any skepticism as to when exactly Officer McDevitt knew the object was a gun. We reiterate
that the trial court is entitled to accept as much or as little of a witness’s testimony as it
pleases.
-6-
¶ 25 Furthermore, the trial court was entitled to find that defendant’s witnesses were not
credible. Aside from defendant’s self-interest, Stennis and Taylor too had potential biases as
friends of defendant’s paramour. In addition, the defense witnesses’ testimony was riddled
with inconsistencies. Taylor could hear defendant’s music, but Stennis could not. Defendant
testified that he was not listening to music; rather, he was playing a game. In addition,
defendant’s hands were either cuffed behind his back, or defendant was handcuffed to his
companion. Furthermore, Taylor testified that the police were preventing Walton from
entering the building but Stennis testified that both she and Walton followed the police
inside. Stennis alone testified that defendant’s companion was taken to the police station with
defendant. Moreover, although Officer Flagg arrived only after defendant was arrested, he
did not see any women there. Defendant disregards that if Stennis is to be believed, the three
women were still present at that time. Finally, the trial court was not required to believe the
defense witnesses’ testimony regarding the radio dispatches, the absence of controlled
substances or the absence of weapons.
¶ 26 We are unpersuaded by defendant’s reliance on People v. Tomasello, 166 Ill. App. 3d 684
(1988). There, no evidence whatsoever rebutted or impeached the defendant’s testimony that
he had relinquished the key to his former residence, where cannabis was subsequently found.
Id. at 690-91. Accordingly, the trier of fact could not reject that testimony. Id. Unlike
Tomasello, however, here, the State provided evidence that contradicted the defense
witnesses’ testimony that defendant had no controlled substances or firearm, namely Officer
McDevitt’s testimony. Defendant’s characterization of the defense witnesses’ testimony as
unrebutted is entirely disingenuous. Accordingly, we are unpersuaded by defendant’s
contention.
¶ 27 B. Armed Habitual Criminal: Qualifying Offenses
¶ 28 Next, defendant asserts his prior domestic battery conviction does not constitute a prior
offense necessary to be convicted as an armed habitual criminal. Section 24-1.7(a) states, in
pertinent part, as follows:
“A person commits the offense of being an armed habitual criminal if he or she
receives, sells, possesses, or transfers any firearm after having been convicted a total
of 2 or more times of any combination of the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code[.]” 720 ILCS
5/24-1.7(a) (West 2012).
Thus, qualifying convictions are elements of the offense. People v. Davis, 405 Ill. App. 3d
585, 591 (2010). In addition, one of the two convictions offered in support of defendant’s
armed habitual criminal conviction was domestic battery. Because domestic battery is not
expressly enumerated in subsection (2) or (3) of the armed habitual criminal statute, it must
constitute a forcible felony under subsection (1) in order to be a qualifying felony under the
statute. For the following reasons, we find that defendant’s prior domestic battery conviction
does not qualify as a forcible felony.
¶ 29 1. Forcible Felony Residual Clause
¶ 30 Section 2-8 of the Criminal Code of 2012 (Code) provides that a “ ‘[f]orcible felony’
means treason, first degree murder, second degree murder, predatory criminal sexual assault
-7-
of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary,
residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated
battery resulting in great bodily harm or permanent disability or disfigurement and any other
felony which involves the use or threat of physical force or violence against any individual.”
(Emphasis added.) 720 ILCS 5/2-8 (West 2012). Because domestic battery is not enumerated
in this statute either, it must fall within the section 2-8 residual clause in order to satisfy the
forcible felony statute and in turn, the armed habitual criminal statute. Pursuant to the section
2-8 residual clause, an offense constitutes a forcible felony where the defendant contemplates
that force or violence against an individual might be involved and the defendant has implied
he was willing to use force or violence against an individual. People v. Belk, 203 Ill. 2d 187,
195-96 (2003). Furthermore, an offense does not constitute a forcible felony merely because
the defendant knows that his actions might involve the threat or use of force or violence. See
People v. Schmidt, 392 Ill. App. 3d 689, 698 (2009). Accordingly, we must determine
whether the legislature intended that the residual clause of section 2-8 could encompass
domestic battery. We review this matter de novo. Schlosser v. State, 2012 IL App (3d)
110115, ¶ 22.
¶ 31 In interpreting a statute, our primary goal is to give effect to the legislature’s intent.
Schmidt, 392 Ill. App. 3d at 695. Such intent is best ascertained by examining the statute’s
language. Id. In addition, we must read a statute as a whole, considering all relevant
provisions together. People v. Moody, 2015 IL App (1st) 130071, ¶ 50. Where a statute lists
items to which it refers, an inference exists that all omissions must be understood as
exclusions. People v. Douglas, 381 Ill. App. 3d 1067, 1074 (2008). Furthermore, we presume
that the legislature did not intend inconvenient, absurd or unjust results. Moody, 2015 IL App
(1st) 130071, ¶ 50.
¶ 32 We find People v. Carmichael, 343 Ill. App. 3d 855 (2003) to be instructive in
determining whether an offense constitutes a forcible felony under the section 2-8 residual
clause. There, the reviewing court considered whether a prior offense of armed violence (720
ILCS 5/33A-2 (West 2000)) constituted a forcible felony. Carmichael, 343 Ill. App. 3d at
859-60. The court essentially agreed with the defendant’s observation that despite the
offense’s name, not all forms of armed violence involved the use or threat of physical force
or violence. Id. Specifically, armed violence could occur where a defendant was armed with
a dangerous weapon while possessing a controlled substance and, thus, was not an inherently
violent felony. Id. at 859-61 (citing 720 ILCS 5/33A-2 (West 2000)); cf. People v. Polk, 2014
IL App (1st) 122017, ¶¶ 53-54 (finding that conspiracy to commit murder, one of the
offenses enumerated in section 2-8, was inherently a forcible felony). In addition, the court
acknowledged the State’s contention that violence might accompany the aforementioned
form of the offense in a particular case and, thus, constitute a forcible felony under section
2-8. Carmichael, 343 Ill. App. 3d at 860. The record was silent, however, as to the
circumstances regarding the defendant’s prior armed violence conviction. Id. at 861. Thus,
the record did not show that defendant’s prior armed violence conviction constituted a
forcible felony. Id.
¶ 33 Pursuant to Carmichael, either the record must show that the specific circumstances of
defendant’s domestic battery conviction fall under the residual clause or domestic battery
must inherently be a forcible felony under the residual clause. The State presented no
evidence at trial concerning the circumstances surrounding defendant’s prior conviction.
-8-
Accordingly, we consider whether domestic battery is inherently forcible.
¶ 34 2. Domestic Battery Statute
¶ 35 Section 12-3.2(a) states as follows:
“A person commits domestic battery if he or she knowingly without legal justification
by any means:
(1) Causes bodily harm to any family or household member;
(2) Makes physical contact of an insulting or provoking nature with any
family or household member.” 720 ILCS 5/12-3.2(a) (West 2012).
In addition, domestic battery is generally a Class A misdemeanor but becomes a Class 4
felony if the defendant has a prior conviction for certain offenses, including domestic battery.
720 ILCS 5/12-3.2(b) (West 2012).1
¶ 36 We agree with defendant’s contention that section 12-3.2(a)(2) based on contact of a
provoking or insulting nature does not involve the use or threat of physical force or violence
required to be a forcible felony under the residual clause. With that said, the record shows
that defendant’s domestic battery conviction fell under section 12-3.2(a)(1), which does
require bodily harm. In addition, knowingly causing “bodily harm” pursuant to that
subsection would seem to constitute physical force against an individual. Thus, at first blush,
domestic battery under section 12-3.2(a)(1) would appear to constitute a forcible felony when
reading the section 2-8 residual clause in isolation from the remainder of section 2-8.
¶ 37 It is well settled, however, that we must consider a statute in its entirety. People v.
Giraud, 2012 IL 113116, ¶ 6. When considering section 2-8 as a whole, it becomes apparent
that finding domestic battery to inherently constitute a forcible felony would lead to an
absurd result. This is because section 2-8 contemplates that only aggravated battery based on
great bodily harm or the like constitutes a forcible felony.
¶ 38 3. Enumerated Forcible Felonies
¶ 39 Prior to 1990, section 2-8 included all forms of aggravated battery in the enumerated list
of forcible felonies. See In re Rodney S., 402 Ill. App. 3d 272, 287 (2010). Now, however,
section 2-8 enumerates only “aggravated battery resulting in great bodily harm or permanent
disability or disfigurement.” 720 ILCS 5/2-8 (West 2012). While several categories of
aggravated battery include as elements great bodily harm, permanent disability or
disfigurement, not all do. 720 ILCS 5/12-3.05 (West 2012). For example, section 12-3.05(c)
provides, in pertinent part, that a “person commits aggravated battery when, in committing a
[simple] battery, other than by the discharge of a firearm, he or she is or the person battered
is on or about a public way.” (Emphasis added.) 720 ILCS 5/12-3.05(c) (West 2012). Similar
to domestic battery, the statute for simple battery provides that “[a] person commits battery if
he or she knowingly without legal justification by any means (1) causes bodily harm to an
1
We categorically reject defendant’s assertion that his prior domestic battery conviction was a
misdemeanor which was only enhanced to a felony for sentencing purposes as a result of an earlier
domestic battery conviction. We adhere to this court’s recent determination that where a defendant had
committed his second offense of domestic battery, “he could not be charged with or convicted of
anything less than the felony.” People v. Sumler, 2015 IL App (1st) 123381, ¶ 45.
-9-
individual or (2) makes physical contact of an insulting or provoking nature with an
individual.” 720 ILCS 5/12-3(a) (West 2012). Accordingly, in defining forcible felonies, the
legislature has specified aggravated battery based on great bodily harm, permanent disability
or disfigurement, to the exclusion of aggravated battery where mere “bodily harm” has
occurred.
¶ 40 As a result of the 1990 amendment, a split of authority emerged as to whether the section
2-8 residual clause can include aggravated battery that involves mere bodily harm. See In re
Rodney S., 402 Ill. App. 3d at 286-87 (4th Dist.) (finding that the definition of forcible felony
does not include aggravated battery based only on bodily harm); In re Angelique E., 389 Ill.
App. 3d 430, 433-34 (2d Dist. 2009) (same); Schmidt, 392 Ill. App. 3d at 696 (1st Dist.)
(finding that the legislature intended to limit the types of aggravated batteries that would
constitute forcible felonies); but see People v. Hall, 291 Ill. App. 3d 411, 417-18 (1st Dist.
1997) (rejecting the defendant’s contention that aggravated battery was not a forcible felony
absent great bodily harm, permanent disability or disfigurement); see also People v. Jones,
226 Ill. App. 3d 1054, 1056 (3d Dist. 1992) (finding that the legislature intended forcible
felonies to include “any aggravated battery that involved the use of physical force or violence
against an individual”). More specifically, some decisions have determined that the
legislature did not intend forcible felonies to include aggravated battery that was merely
simple battery committed on a public way, having already enumerated another form of
aggravated battery. See In re Angelique, 389 Ill. App. 3d at 433-34; People v. Rodriguez, 258
Ill. App. 3d 579, 585 (1st Dist. 1994); People v. Leahy, 229 Ill. App. 3d 1070, 1075 (2d Dist.
1992). Given the legislature’s decision to add language limiting the enumerated form of
aggravated battery to instances involving great bodily harm, permanent disability or
disfigurement, we agree with reviewing courts that have found the legislature deliberately
excluded aggravated battery based on mere bodily harm from the definition of forcible
felonies.
¶ 41 In light of that determination, we also find the legislature did not intend for domestic
battery to inherently fall under the section 2-8 residual clause, which would create a result
that is both unfair and absurd. If causing mere bodily harm for purposes of aggravated battery
does not constitute a forcible felony, it would be disparate to find that mere bodily harm
under the domestic battery offense does. One offense is no more forcible than the other.
Although orders entered by this court under Illinois Supreme Court Rule 23(b), (e) (eff. July
1, 2011) are “not precedential and may not be cited by any party” (emphasis added), we note
that another district of this court has reached the same conclusion. See People v. White, 2014
IL App (4th) 120785-U, ¶ 31. In addition, a separate statute exists for aggravated domestic
battery based on great bodily harm, permanent disability or disfiguration. 720 ILCS
5/12-3.3(a) (West 2012). The elevated harm required by that statute is far more consistent
with the spirit of the forcible felony statute. We further note that in the Firearm Owners
Identification Card Act, our legislature has referred to the seizure of a firearm owners
identification card based on the separately enumerated bases of “a forcible felony” or
“domestic battery.” 430 ILCS 65/10(a) (West 2012). This further supports our determination
that the legislature did not intend for one to be a form of the other.
¶ 42 We join our colleagues in urging the legislature to clarify this statute. See Schmidt, 392
Ill. App. 3d at 696. Meanwhile, it cannot be said that defendant’s domestic battery conviction
constituted a forcible felony. In turn, that conviction did not satisfy an element of the armed
- 10 -
habitual criminal offense and defendant’s conviction for that offense must be vacated.
¶ 43 C. Multiple Armed Violence Convictions
¶ 44 Next, defendant contends that we must vacate one of his convictions for armed violence
based on the one-act, one-crime doctrine. Defendant also contends that had the legislature
intended for a defendant to be convicted of multiple counts of armed violence based on the
commission of multiple predicate felonies, the legislature would have clearly indicated as
such. Defendant somewhat conflates one-act, one-crime principles and principles of statutory
construction. See People v. Carter, 213 Ill. 2d 295, 300 (2004) (superseded by statute).
One-act, one-crime principles apply only if the statute permits multiple convictions for
simultaneous predicate felonies based on differing controlled substances. See People v.
Almond, 2015 IL 113817, ¶ 33; Carter, 213 Ill. 2d at 300-01. Consequently, we begin by
determining whether the armed violence statute authorizes separate offenses to be charged
based on simultaneous predicate felonies. We review this issue of statutory construction
de novo. Carter, 213 Ill. 2d at 301.
¶ 45 Section 33A-2(a) of the Code states that “[a] person commits armed violence when, while
armed with a dangerous weapon, he commits any felony defined by Illinois Law” except
certain enumerated felonies not at issue. (Emphasis added.) 720 ILCS 5/33A-2(a) (West
2012). Here, defendant was found guilty of two counts of armed violence. One count charged
that defendant, while armed with a handgun, committed the felony of possession of a
controlled substance: 5-Methoxy-N, N-Diisopropyltryptamine. See 720 ILCS 570/402(c)
(West 2012) (possession of a controlled substance). The other count for which defendant was
found guilty charged that defendant, while armed with a handgun, committed the felony of
possession of a controlled substance: N-Benzylpiperazine. Thus, the two underlying felonies
were based on possessing different substances.
¶ 46 We note that the possession of a controlled substance statute permits multiple convictions
for the simultaneous possession of multiple substances. Carter, 213 Ill. 2d at 301, 303. Thus,
the record here would have supported two convictions for possession of a controlled
substance based on two different substances. The question before us, however, is whether the
armed violence statute’s language, requiring that the defendant commit “any felony,” permits
multiple convictions for the simultaneous commission of two different felonies.
¶ 47 In Carter, our supreme court observed that the term “any” can be singular or plural. Id. at
301-02. As a result, the court determined that the statute for unlawful use of weapons by a
felon (UUWF), which stated that it was unlawful for a felon to possess “any firearm or any
firearm ammunition” (720 ILCS 5/24-1.1 (West 1996)), was ambiguous because it did not
adequately define the allowable unit of prosecution. Carter, 213 Ill. 2d at 302. Furthermore,
ambiguous criminal statutes must be construed in favor of the accused. Id. Accordingly, the
court found that the simultaneous possession of multiple firearms or ammunition constituted
only one offense. Id. at 306. Following Carter, the legislature amended the UUWF statute to
state that “[t]he possession of each firearm or firearm ammunition in violation of this Section
constitutes a single and separate violation.” 720 ILCS 5/24-1.1(e) (West 2008).
¶ 48 Similar to the pre-amendment UUWF statute, section 33A-2 provides that armed violence
occurs where an armed person commits “any” felony. 720 ILCS 5/33A-2 (West 2012). It is
unclear whether the legislature intended for any felony to be singular or plural. Accordingly,
the statute is ambiguous as to whether the commission of each underlying felony supports a
- 11 -
separate armed violence conviction. We further note that the armed violence statute contains
no provision similar to the post-Carter UUWF amendment specifying that the commission of
each felony constitutes a single and separate armed violence offense. See id. Accordingly, we
must construe this ambiguity in defendant’s favor and hold that the statute does not authorize
multiple armed violence convictions for multiple, simultaneous, underlying felonies. In light
of our determination, we need not consider whether two convictions would have violated the
one-act, one-crime doctrine.
¶ 49 We must now determine what relief is appropriate. Before sentencing defendant, the trial
court determined that the possession of 5-Methoxy-N, N-Diisopropyltryptamine count
merged into the armed violence count based on the same predicate possession felony, and the
possession of N-Benzylpiperazine count merged into the armed violence count based on that
predicate possession felony. Defendant asserts that the appropriate remedy would be to
vacate one armed violence conviction and remand for resentencing on an underlying
possession of a controlled substance offense. The State has not specified what relief is
appropriate should we agree with defendant’s contention that two armed violence convictions
cannot stand. Accordingly, we vacate defendant’s armed violence conviction predicated on
possession of N-Benzylpiperazine and remand for the trial court to impose a sentence for the
possession count based on the same substance.
¶ 50 D. Sentencing
¶ 51 Finally, defendant contends that the trial court abused its discretion in sentencing
defendant to 18 years in prison. On remand, the trial court will have the opportunity to
consider whether 18 years remains an appropriate sentence for the remaining armed violence
conviction. We need not consider this contention further.
¶ 52 III. CONCLUSION
¶ 53 The trial court was entitled to find that Officer McDevitt observed an object which
proved to be a firearm. In addition, defendant’s prior domestic battery conviction does not
constitute a forcible offense necessary to satisfy the armed habitual criminal offense.
Furthermore, the armed violence statute does not clearly authorize the imposition of multiple
convictions where two underlying felonies occurred simultaneously.
¶ 54 For the foregoing reasons, we vacate defendant’s armed habitual criminal conviction,
vacate one armed violence conviction and remand for sentencing.
¶ 55 Affirmed in part; vacated in part; cause remanded.
- 12 -