People v. Jasso , 2024 IL App (1st) 221686-U ( 2024 )

2024 IL App (1st) 221686-UFIFTH DIVISION
February 16, 2024
No. 1-22-1686
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 21 CR 338
)
GERARDO JASSO, ) Honorable
) Shelley Sutker-Dermer,
Defendant-Appellant. ) Judge Presiding.
JUSTICE MIKVA delivered the judgment of the court.
Presiding Justice Mitchell and Justice Lyle concurred in the judgment.
ORDER
¶1 Held: We affirm defendant’s convictions for aggravated discharge of a firearm, where the
trial evidence showed defendant discharged a firearm in the direction of a police
officer. We vacate the sentences on three of those convictions as they violate the
one-act, one-crime rule.
¶2 Following a bench trial, defendant Gerardo Jasso was found guilty of four counts of
aggravated discharge of a firearm and one count of unlawful use of a weapon by a felon (UUWF).
He received concurrent prison sentences of 14 years for each count of aggravated discharge of a
firearm and 5 years for the single count of UUWF. On appeal, he argues both that the State failed
to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm and that his
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four aggravated discharge of a firearm convictions violate the one-act, one-crime rule. The State
concedes the one-act, one-crime issue. We affirm in part, vacate in part, and remand for correction
of the mittimus.
¶3 I. BACKGROUND
¶4 Mr. Jasso was charged by indictment with 16 counts stemming from a November 28, 2020,
shooting. The State proceeded to trial on six counts of attempted first degree murder, one count of
UUWF, and, relevant here, four counts of aggravated discharge of a firearm. Three of the latter
counts alleged Mr. Jasso committed aggravated discharge of a firearm under section 24-1.2(a)(3)
of the Illinois Criminal Code of 2012 (Code) (720 ILCS 5/24-1.2(a)(3) (West 2020)), when he
“knowingly discharged a firearm in the direction of a person he knew to be a peace officer, to wit:
Peter Niznik,” while Officer Niznik was engaged in the execution of his official duties (count IX),
to prevent Officer Niznik from performing those duties (count X), and in retaliation for Officer
Niznik performing his official duties (count XI). Count XII alleged Mr. Jasso committed
aggravated discharge under section 24-1.2(a)(2) of the Code (720 ILCS 5/24-1.2(a)(2) (West
2020)), when he “knowingly discharged a firearm in the direction of another person, to wit: Peter
Niznik.” The State nol-prossed the remaining counts.
¶5 At trial, Chicago police officer Niznik testified that at about 3:15 p.m. on November 28,
2020, he and his partner, Officer Daniel Vo, were wearing uniforms in an unmarked vehicle
stopped at an intersection. Officer Niznik saw Mr. Jasso walking with a green can in his hand.
When Officer Vo called Mr. Jasso to the police vehicle, Mr. Jasso looked at the officers and kept
walking. Officer Niznik exited the vehicle and Mr. Jasso fled.
¶6 Officer Niznik chased Mr. Jasso down an alley. Officer Niznik observed a firearm and an
extended magazine in Mr. Jasso’s right hand as he ran. Officer Niznik repeatedly told Mr. Jasso to
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drop the firearm, but Mr. Jasso did not. Mr. Jasso ran to the left side of the alley, veered to the
right, and “all in one motion *** slowed down almost to a complete stop.” Mr. Jasso turned his
body to the right, “pointed the firearm at [Officer Niznik] and shot twice at [him]” from several
garage lengths away. Officer Niznik immediately fired back twice and hid behind a garbage can
because he “was afraid [Mr. Jasso] was going to shoot [him] again.” Mr. Jasso continued running
down the alley. Officers Niznik and Vo found Mr. Jasso lying on the ground near a basement door
in a gangway and placed him into custody.
¶7 The State published video footage of Officer Niznik’s body worn camera, the foundation
of which was stipulated to, and entered the video into evidence. We have viewed the video. It
depicts the chase that Officer Niznik described in his testimony and shows that the chase took
place in daylight. The video shakes heavily while Officer Niznik runs, making it difficult to view
details in the video unless it is slowed down significantly. Mr. Jasso is wearing a black hooded
sweatshirt and a black baseball cap in the video.
¶8 At the point where Officer Niznik follows Mr. Jasso down the alley, Officer Niznik is heard
repeatedly yelling at Mr. Jasso to drop his firearm and eventually raises a firearm up toward Mr.
Jasso. Mr. Jasso veers sharply to the left, then to the right. Mr. Jasso twists to the right and looks
over his right shoulder, so that the length of the brim of his cap can be seen, but his back is still
facing Officer Niznik. As two gunshots are heard, Mr. Jasso’s right arm appears to swing back in
Officer Niznik’s direction. At this point, Mr. Jasso is not completely visible, as his black sweatshirt
blends in with the shadows and dark objects in front of him. Officer Niznik then holds his own
firearm with two hands, discharges two shots, and hides behind a garbage can. Mr. Jasso continues
running until he is out of sight of the camera.
¶9 The State also published and entered into evidence video footage captured by a surveillance
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camera on a garage facing the alley in which the shooting occurred. The video does not contain
audio. In the video, we observe Mr. Jasso running from Officer Niznik with a firearm in his right
hand and veering to the left. As he then veers to the right, he angles his right arm over his left arm
and points the firearm in Officer Niznik’s direction. Mr. Jasso runs out of the frame. Based on our
viewing of the footage from Officer Niznik’s body worn camera, it appears that Mr. Jasso did not
discharge the firearm while he was within the surveillance camera’s line of sight.
¶ 10 On cross-examination, Officer Niznik confirmed that Mr. Jasso almost completely stopped
when he discharged the firearm and then started running again “[a]t some point.” Officer Niznik
could not recall telling Detective Roxana Hopps that Mr. Jasso almost came to a complete stop
and turned around to shoot at him. He also did not recall telling Detective Hopps that Mr. Jasso
was still running and turned his head and body to the right when he shot at Officer Niznik. When
Mr. Jasso “shot at [him],” Officer Niznik was not hit and did not hear any bullets passing him or
hitting anything near him.
¶ 11 The State entered a stipulation that samples from the gun shot residue (GSR) kit
administered on Mr. Jasso showed his right hand contained GSR particles indicating he discharged
a firearm, contacted a primer GSR-related item, or had his right hand in the environment of a
discharged firearm.
¶ 12 Mr. Jasso called Detective Hopps, who testified that on November 28, 2020, she
interviewed Officer Niznik about the incident. Officer Niznik never told Detective Hopps that Mr.
Jasso “slowed down to almost a complete stop” when he discharged the firearm. Rather, Officer
Niznik reported that Mr. Jasso was running “the whole time” and turned his body in Officer
Niznik’s direction to fire at him.
¶ 13 Mr. Jasso testified that on November 28, 2020, at about 3 p.m., he was at the intersection
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of Rosemont and Artesian Avenues walking home with an alcoholic beverage in his hand. He saw
police officers approaching and heard them asking him something. Mr. Jasso kept walking and
then fled because he had a firearm. He fled into an alley and pulled the firearm out of his waistband
so he could run faster. Eventually, he discharged the firearm twice, at an angle in front of him and
to the right, to “scare the police officer away from [him]” and “get away.”
¶ 14 Mr. Jasso denied that he intended to shoot or hurt the officer. He aimed toward the garages
to his right and believed that he shot a garage. He also denied that he stopped running, explaining
that he turned his body to face the officer “[j]ust a little” to look back and see if he was still being
chased. Viewing Officer Niznik’s body worn camera footage, Mr. Jasso testified that his arm could
be seen angled forward to his right toward a garage when he discharged the firearm both times. He
denied that at any point he aimed the firearm at the officer and pulled the trigger.
¶ 15 On cross-examination, Mr. Jasso confirmed that he was under the influence of alcohol
when the incident occurred. He confirmed that he took his firearm out of his waistband to run
faster but kept the firearm on him. The State asked Mr. Jasso if he took the firearm in his hand and
swung his arm behind him, and Mr. Jasso replied, “I was running.” Mr. Jasso further stated, “I
swing my arm in an angle, yeah.” He confirmed that he also turned his head to look over his right
shoulder and saw the officer still behind him but denied that he did so when he discharged the
firearm. Rather, he “still turned forward,” “pointed to [his] right once he knew they were behind
[him],” and “shot to get them off [him].” Mr. Jasso confirmed he discharged his firearm a second
time knowing the officer was still behind him in the alley.
¶ 16 The trial court found Mr. Jasso guilty of four counts of aggravated discharge of a firearm
and one count of UUWF, and acquitted Mr. Jasso of attempted first degree murder. The court
indicated that it had had the opportunity to view the videos, observe the witnesses in court, and
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determine the witnesses’ credibility from their testimony. The court found the State failed to
establish the specific intent to kill necessary to sustain a conviction for attempted first degree
murder. However, the court found that Mr. Jasso intended to discharge the firearm, pointed it in
Officer Niznik’s direction, and discharged it. It rejected Mr. Jasso’s request for a finding of
reckless discharge instead. The court said, “There is no question in this court’s mind that the State
established the elements of aggravated discharge in taking the entire case in its totality.”
¶ 17 Mr. Jasso filed a motion to reconsider, challenging the sufficiency of the evidence and
arguing that the body worn camera footage showed that he was not pointing the firearm at the
officer at the time of the shooting. During the hearing on Mr. Jasso’s motion, the court viewed the
video footage from Officer Niznik’s body worn camera “at slow motion using the rewind over and
over and over again.” The court denied Mr. Jasso’s motion, explaining that it did not agree with
defense counsel’s assessment of the footage.
¶ 18 The court sentenced Mr. Jasso to concurrent prison sentences of 14 years each for the four
counts of aggravated discharge of a firearm (counts IX, X, XI, and XII) and 5 years for the count
of UUWF (count XV).
¶ 19 II. JURISDICTION
¶ 20 Mr. Jasso was sentenced on October 28, 2022, and he timely filed his notice of appeal on
November 7, 2022. We have jurisdiction over this appeal under article VI, section 6, of the Illinois
Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb 6, 2013)
and 606 (eff. July 1, 2017), governing appeals from final judgments in criminal cases.
¶ 21 III. ANALYSIS
¶ 22 On appeal, Mr. Jasso argues that the State failed to prove him guilty beyond a reasonable
doubt of aggravated discharge of a firearm. He contends Officer Niznik’s testimony was directly
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contradicted by the video evidence from his body worn camera, which showed Mr. Jasso did not
aim and discharge the firearm in Officer Niznik’s direction. Mr. Jasso argues that we should either
reverse his conviction or reduce it to the lesser-included offense of reckless discharge of a firearm.
¶ 23 When reviewing the sufficiency of the evidence at trial, our inquiry is “ ‘whether, after
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.’ ” (Emphasis in
original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307,
319 (1979)). We will not retry the defendant when reviewing a challenge to the sufficiency of the
evidence. People v. Nere, 2018 IL 122566, ¶ 69. “[I]t is the responsibility of the trier of fact to
resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the
facts,” and we will not substitute our judgment for that of the trier of fact on questions involving
the weight of the evidence or the credibility of witnesses. People v. Gray, 2017 IL 120958, ¶ 35.
However, we give less deference to a trial court’s determinations of fact when they are based on
evidence other than live witness testimony, as the trial court does not occupy a superior position
in evaluating said evidence. People v. Shaw, 2015 IL App (1st) 123157, ¶ 29.
¶ 24 The trier of fact need not “disregard inferences that flow normally from the evidence before
it,” or “search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.” People v. Jackson, 2020 IL 124112, ¶ 70. “The testimony of a single witness
is sufficient to convict if the testimony is positive and credible, even where it is contradicted by
the defendant.” Gray, 2017 IL 120958, ¶ 36. We “must allow all reasonable inferences from the
record in favor of the prosecution” (People v. Givens, 237 Ill. 2d 311, 334 (2010)), and will not
reverse a conviction unless the evidence is “so unreasonable, improbable, or unsatisfactory that it
justifies a reasonable doubt of the Mr. Jasso’s guilt” (People v. Bradford, 2016 IL 118674, ¶ 12).
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¶ 25 Under section 24-1.2(a)(3) of the Code (720 ILCS 5/24-1.2(a)(3) (West 2020)), a person
commits aggravated discharge of a firearm when he or she knowingly or intentionally discharges
a firearm in the direction of a person he or she knows to be a peace officer while the officer is
engaged in the execution of any of his or her official duties, to prevent the officer from performing
his or her official duties, or in retaliation for the officer performing his or her official duties. An
essential element of the offense is “the offender’s awareness of the presence of an individual in
the direction in which he fires a weapon [citation]; that is, this crime makes it unlawful to
intentionally fire a weapon knowing that weapon is being fired at or in the direction of someone
else.” People v. Kasp, 352 Ill. App. 3d 180, 187-88 (2004).
¶ 26 Mr. Jasso does not dispute that he discharged a firearm while running from Officer Niznik
down an alley, or that he knew Officer Niznik was a peace officer. Rather, he contends the evidence
is insufficient to show that he discharged the firearm in Officer Niznik’s direction.
¶ 27 In this case, the evidence was sufficient for a rational trier of fact to find Mr. Jasso guilty
of aggravated discharge of a firearm beyond a reasonable doubt. Officer Niznik testified that Mr.
Jasso held a firearm as Officer Niznik chased him down an alley. Mr. Jasso ran down the left side
of the alley, veered to the right, “slowed down almost to a complete stop,” turned his body to the
right, and then discharged the firearm in Officer Niznik’s direction twice. Officer Niznik returned
fire and hid behind a garbage can because he feared Mr. Jasso “was going to shoot [him] again.”
Officer Niznik’s testimony, standing alone, was sufficient to establish that Mr. Jasso discharged a
firearm in his direction. See Gray, 2017 IL 120958, ¶ 36 (“The testimony of a single witness is
sufficient to convict if the testimony is positive and credible, even where it is contradicted by the
defendant.”). The court explicitly stated that it determined the credibility of the witnesses from
their testimony. We will not substitute our judgment for that of the trial court on witness credibility
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and the weight of the evidence. Bradford, 2016 IL 118674, ¶ 12.
¶ 28 Although corroborating evidence is not required to support a conviction (see People v.
Little, 322 Ill. App. 3d 607, 618 (2001) (a conviction can be based upon the testimony of a single
credible witness)), the video evidence captured by Officer Niznik’s body worn camera
corroborates some details of his testimony regarding the chase through the alley. The video
demonstrates, consistent with the officer’s testimony, that Mr. Jasso veered to the right side of the
alley, then two shots were fired, and Officer Niznik returned fire.
¶ 29 On the crucial issue of whether Mr. Jasso pointed his gun towards Officer Niznik, the body
worn camera video footage does not plainly contradict Officer Niznik’s testimony. Officer
Niznik’s camera shakes dramatically throughout the video while he is running, Mr. Jasso is several
garage lengths ahead of Officer Niznik when he discharges the firearm, and Mr. Jasso is wearing
black clothing that blends with the environment around him. Contrary to Mr. Jasso’s assertion, the
footage does not definitively show that Mr. Jasso discharged the firearm in front of him and to the
right toward the garages, in a direction away from Officer Niznik. Rather, from what we can
discern in the video, Mr. Jasso appears to, in a fluid motion, look over his right shoulder and swing
his right arm back, at about the same time that he discharges the firearm.
¶ 30 Thus, while the video does not explicitly show that Mr. Jasso pointed a firearm in Officer
Niznik’s direction when he discharged the firearm, nor does it rebut the officer’s testimony that
Mr. Jasso did so. See People v. Towner, 2022 IL App (1st) 192018-U, ¶¶ 30-32 (video evidence
did not contradict a police officer’s testimony that the defendant pointed a BB gun at him where
the video was ambiguous and “did not disprove that [the] defendant did so”); People v. Magnuson,
2019 IL App (2d) 160551, ¶ 48 (while the video evidence “somewhat impeach[ed]” the testifying
officers, it was not clear enough to either contradict or corroborate the defendant’s testimony, and
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the trier of fact could have reasonably resolved any apparent conflicts in the evidence against the
defendant). Under these circumstances, we cannot say that the trial court was required to reject
Officer Niznik’s testimony based on the video evidence,
¶ 31 Mr. Jasso also argues that, because the trial court acquitted him of attempted first degree
murder, the court implicitly rejected Officer Niznik’s testimony that Mr. Jasso discharged the
firearm in his direction. We disagree.
¶ 32 The offense of attempted murder is a specific-intent crime in which the State must show a
defendant committed an act with the specific intent to kill the victim. People v. Edmondson, 2018
IL App (1st) 151381, ¶ 65. The offense of aggravated discharge, however, only requires a general
showing that the defendant intentionally fired a weapon knowing it was being fired at or in the
direction of someone else. Kasp, 352 Ill. App. 3d at 187-88. It is true that the mere act of a
defendant discharging a firearm at a victim can support a finding that the defendant did so with
the intent to kill. People v. Haynes, 2023 IL App (1st) 220296, ¶ 25. However, the trial court here
was not foreclosed from finding Mr. Jasso intentionally discharged a firearm in Officer Niznik’s
direction simply because it found Mr. Jasso did not do so with the specific intent to kill Officer
Niznik. Indeed, Mr. Jasso testified that he discharged the firearm to “scare” Officer Niznik away.
¶ 33 In sum, the evidence can support the trial court’s finding that Mr. Jasso was guilty beyond
a reasonable doubt of aggravated discharge of a firearm. Viewing the evidence and reasonable
inferences therefrom in the light most favorable to the State, we cannot find that the trial evidence
was “so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the
defendant’s guilt.” Bradford, 2016 IL 118674, ¶ 12. Therefore, we can neither reverse this
conviction nor reduce it to the lesser-included offense of reckless discharge of a firearm.
¶ 34 Mr. Jasso also argues that, because the charging instrument did not indicate the State
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intended to treat his conduct as four separate acts of aggravated discharge of a firearm, this court
should vacate three of his aggravated discharge convictions as barred by the one-act, one-crime
rule. Mr. Jasso acknowledges that this claim is forfeited because he failed to raise it below but
argues that it is reversible error under the second prong of the plain error doctrine. The State
concedes both these issues.
¶ 35 The parties are correct that one-act, one-crime violations fall within the second prong of
the plain error doctrine. People v. Smith, 2019 IL 123901, ¶ 14. We also agree that, as charged,
Mr. Jasso’s four convictions for aggravated discharge of a firearm violate the one-act, one-crime
rule, as the shots underlying the charges were not charged as separate physical acts.
¶ 36 Under the one-act, one-crime rule, “a criminal defendant may not be convicted of multiple
offenses when those offenses are all based on precisely the same physical act.” Coats, 2018 IL
121926, ¶ 11. We review de novo whether a violation of the one-act, one-crime rule occurred.
People v. Coats, 2018 IL 121926, ¶ 12.
¶ 37 The four counts for aggravated discharge of a firearm charged that Mr. Jasso “discharged
a firearm in the direction of” Officer Niznik but did not allege that Mr. Jasso fired more than once
at Officer Niznik. Because the indictment did not indicate that the State intended to treat Mr.
Jasso’s multiple gunshots as separate offenses, he could not be convicted of multiple counts of
aggravated discharge of a firearm premised on the same discharge. See People v. Crespo, 203 Ill.
2d 335, 345 (2001) (in order for multiple convictions to be sustained, the indictment must indicate
that the State intends to treat the defendant’s conduct as multiple acts); People v. Boyd, 307 Ill.
App. 3d 991, 999 (1999) (the defendant could not receive multiple convictions for discharging a
firearm at the victim, where the indictment did not allege that the defendant fired more than once).
Accordingly, we agree with the parties that Mr. Jasso’s four convictions for aggravated discharge
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of a firearm violate the one-act, one-crime rule and only one conviction may stand.
¶ 38 Under the one-act, one-crime doctrine, “sentence should be imposed on the more serious
offense.” People v. Artis, 232 Ill. 2d 156, 170 (2009). Thus, the proper remedy for a violation of
the one-act, one-crime rule is to vacate the less serious offense. Id.; In re Samantha V., 234 Ill. 2d
359, 379 (2009). To determine which offense is the more serious, we compare the relative
punishments prescribed by the legislature for each offense. Artis, 232 Ill. 2d at 170.
¶ 39 Aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-
1.2(a)(3) (West 2020)), as charged in counts IX, X, and XI, is a Class X felony, while aggravated
discharge in the direction of another person (720 ILCS 5/24-1.2(a)(2) (West 2020)), as charged in
count XII, is a Class 1 felony (720 ILCS 5/24-1.2(b) (West 2020)). Accordingly, we vacate the
sentence on aggravated discharge count XII as that Class 1 felony is clearly a less serious offense
than the three Class X felonies charged in counts IX, X, and XI.
¶ 40 As to counts IX, X, and XI, each involves the same mental state and identical punishments.
And as the 14-year sentences were ordered to run concurrently, vacating two of the convictions
will not affect Mr. Jasso’s total sentence. We thus grant Mr. Jasso’s request that judgment be
imposed only on count IX for aggravated discharge of a firearm and that the convictions on counts
X and XI be vacated.
¶ 41 IV. CONCLUSION
¶ 42 For the foregoing reasons, we vacate the convictions for aggravated discharge of a firearm
on counts X, XI, and XII, and order the mittimus be corrected to reflect only one conviction for
aggravated discharge of a firearm on count IX. We otherwise affirm the judgment of the trial court.
¶ 43 Affirmed in part and vacated in part; mittimus corrected.
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