People v. Rodriguez ( 2014 )

Illinois Official Reports
Appellate Court
People v. Rodriguez, 2014 IL App (2d) 130148
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ALEJANDRO RODRIGUEZ, Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0148
Filed October 29, 2014
Held The appellate court upheld defendant’s convictions arising from a
(Note: This syllabus shooting spree during which he was shooting at two rival gang
constitutes no part of the members, since the State proved beyond a reasonable doubt that
opinion of the court but defendant acted “knowingly” for purposes of his armed violence and
has been prepared by the aggravated discharge of a firearm convictions and that he discharged a
Reporter of Decisions firearm within 1,000 feet of a school that was operating at the time of
for the convenience of the offense, and even though IPI Criminal 4th Nos. 18.11 and 18.12 do
the reader.) not mirror section 24-1.2(a)(1) of the Criminal Code, no plain error or
ineffective assistance of counsel occurred, especially when an
examination of the evidence by a rational trier of fact would show
beyond a reasonable doubt that defendant acted with a “knowing”
mental state, that he shot “at or into” the buildings that he hit, that he
knew or should have known the buildings were occupied, and his
counsel’s failure to argue the discrepancy between the language of the
instructions and the statute with respect to whether defendant was
shooting “at or into” or “in the direction of” the buildings did not
amount to deficient performance.
Decision Under Appeal from the Circuit Court of Kane County, No. 11-CF-1979; the
Review Hon. David R. Akemann, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Lilien and Kerry Goettsch, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Bauer and Jay Paul Hoffmann, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel PRESIDING JUSTICE BURKE delivered the judgment of the court,
with opinion.
Justices Hutchinson and Birkett concurred in the judgment and
opinion.
OPINION
¶1 Defendant, Alejandro Rodriguez, was charged with eight crimes in connection with two
shootings in Aurora on September 3, 2011. The State’s theory at trial was that defendant,
riding as a passenger in a car driven by Fernando Arroyo, fired several shots at two rival
gang members, Marcos Gonzalez and Ignacio Perez, intending to kill them. Neither Gonzalez
nor Perez was struck, but two houses and two vehicles were damaged.
¶2 The jury found defendant guilty of (1) armed violence predicated on felony criminal
damage to property, that property being Jose Martinez’s 2006 Ford Fusion parked at 759
Columbia Street (see 720 ILCS 5/33A-2(b) (West 2010)); (2) armed violence predicated on
felony criminal damage to property, that property being Miguel Hernandez’s Ford pickup
truck parked at 736 Kane Street (see 720 ILCS 5/33A-2(b) (West 2010)); (3) aggravated
discharge of a firearm for firing at an occupied building at 763 Columbia Street, which was
within 1,000 feet of Brady Elementary School (see 720 ILCS 5/24-1.2(a)(1), (b) (West
2010)); (4) aggravated discharge of a firearm for firing at an occupied building at 736 Kane
Street (see 720 ILCS 5/24-1.2(a)(1) (West 2010)); and (5) unlawful possession of a firearm
by a street gang member who lacked a valid firearm owner’s identification (FOID) card (see
720 ILCS 5/24-1.8(a)(1) (West 2010)). Defendant appeals all but the unlawful-possession-
of-a-firearm conviction.
¶3 First, defendant challenges the sufficiency of the evidence supporting the “knowingly or
intentionally” mental state element shared by armed violence and aggravated discharge of a
firearm. Defendant advocates outright reversal of the convictions on the ground that the State
failed to prove that he acted “knowingly or intentionally,” because there was no evidence that
he “purposefully” shot at any of the property specified in the charging instrument. We
conclude that the State proved beyond a reasonable doubt that defendant discharged the
firearm knowingly and that the absence of evidence that he intentionally targeted the houses
and vehicles that were actually struck does not compel reversal.
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¶4 Second, defendant argues that the State failed to prove the locality enhancement for
aggravated discharge of a firearm, and therefore the conviction must be reduced from a Class
X felony to a Class 1 felony. We conclude that the State proved beyond a reasonable doubt
that Brady Elementary was operating as a school on the date of the offense and that
defendant committed the offense within 1,000 feet of the school.
¶5 Third, defendant contends that the jury was incorrectly instructed on the elements of
aggravated discharge of a firearm. The trial court used Illinois Pattern Jury Instructions,
Criminal, Nos. 18.11 and 18.12 (4th ed. 2000) (hereinafter, IPI Criminal 4th), which do not
mirror section 24-1.2(a)(1) of the Criminal Code of 1961. Defendant points out that a person
commits the offense when he shoots “at or into” an occupied building (720 ILCS
5/24-1.2(a)(1) (West 2010)), not “in the direction of or into” the building, as the jury was
instructed. Defendant acknowledges that he has procedurally defaulted the issue but argues
that he is entitled to a new trial on the two charges because the court committed plain error in
using the IPI instructions and that his counsel rendered ineffective assistance for failing to
object to them. We conclude that, even though the IPI instructions do not mirror the language
of section 24-1.2(a)(1), the phrases “in the direction of or into” and “at or into” are
synonymous for purposes of proving defendant guilty beyond a reasonable doubt. Thus, the
court did not commit plain error in using the IPI instructions, and defense counsel was not
ineffective for failing to raise the issue.
¶6 We hold that (1) the State proved beyond a reasonable doubt that defendant committed
the shootings “knowingly” as required to sustain the convictions of armed violence and
aggravated discharge of a firearm; (2) the State proved the locality enhancement that
defendant committed aggravated discharge of a firearm within 1,000 feet of Brady
Elementary, which was operating as a school on the date of the offense; and (3) even though
IPI Criminal 4th Nos. 18.11 and 18.12 do not mirror section 24-1.2(a)(1), neither plain error
nor ineffective assistance occurred and, therefore, defendant is not entitled to a new trial on
the charges of aggravated discharge of a firearm.
¶7 I. BACKGROUND
¶8 Defendant was charged by indictment with two counts of attempted first-degree murder
(see 720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)); three counts of armed violence (see 720
ILCS 5/33A-2(b) (West 2010)); and one count each of aggravated discharge of a firearm
within 1,000 feet of a school (see 720 ILCS 5/24-1.2(a)(1), (b) (West 2010)); aggravated
discharge of a firearm (see 720 ILCS 5/24-1.2(a)(1) (West 2010)); and unlawful possession
of a firearm by a street gang member (see 720 ILCS 5/24-1.8(a)(1) (West 2010)).
¶9 At trial, Gonzalez testified that, on the afternoon of September 3, 2011, he was walking
down Kane Street in Aurora when a car pulled up with defendant in the passenger seat.
Gonzalez was a member of the Latin Kings street gang, and he knew that defendant was a
member of the Insane Deuces street gang. Gonzalez and defendant were arguing when
defendant drew a pistol and started shooting. Gonzalez heard the shots but did not see the
gun. The police stopped Gonzalez 10 to 15 minutes later to ask about the shooting, but
Gonzalez denied any knowledge of the incident at the time.
¶ 10 Perez testified that he had an “association” with the Latin Kings, he lived in the Latin
Kings’ territory in Aurora, and he had friends who were members. About 3:30 p.m. on
September 3, 2011, Perez was walking to a store near Columbia Street when he noticed a car
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driven by Arroyo. The car passed Perez twice, and on the second pass a passenger fired three
shots at Perez. Perez heard the shots but did not see them. At trial, Perez denied seeing the
shooter, but he acknowledged that he had previously told the police that “Rat Face,” who was
defendant, was the shooter.
¶ 11 Mary Nino testified that, on the date of the shootings, she lived at 768 Columbia Street.
Nino was sitting on her porch around 3:30 p.m. when she noticed a gray four-door car pull up
from her left. Nino testified that she saw defendant, whom she knew from the streets,
partially climb out the passenger-side window, cover his face with a red bandana, and fire a
silver gun three or four times. The car traveled 10 to 15 feet past her porch, so the bullets
traveled toward the house “kitty corner” to hers. Nino saw a 15- to 16-year-old boy emerge
from the rear of the house a few minutes later. Nino called 911 and saw the police go to the
house. Later, the police told Nino that they had someone in custody, and she went with them
to a nearby street, where she identified defendant as the shooter. Nino also identified a car in
police possession as the car from which the shots were fired.
¶ 12 Officer William Sullivan testified that he responded to the shooting. As he was driving,
he saw a vehicle matching the description of the car from which the shots were fired and he
followed it. Once Officer Sullivan was behind the car, the driver pulled into the first
available driveway and waited for the patrol car to pass. By the time Officer Sullivan turned
around, the car had pulled out of the driveway and sped away. Officer Sullivan identified
defendant as the driver of the car.
¶ 13 The car eventually stopped at an intersection, and a passenger ran from the car. The car
drove away in the opposite direction, and Officer Sullivan followed the person running. The
person wore a glove and appeared to have something in his waistband. Officer Sullivan
apprehended the person running, whom he identified as Arroyo. Arroyo led Officer Sullivan
to a bush along the route he had run. Officer Sullivan testified that an evidence technician
recovered a .22-caliber revolver from the bush.
¶ 14 Arroyo testified for the State in exchange for prosecutorial leniency. For his testimony,
Arroyo would receive a one-year prison term for mob action, to run consecutively to a
three-year term for unlawful possession of a firearm by a street gang member. According to
Arroyo, he had known defendant since their youth and they lived near each other. The two
remained friends even after Arroyo became a member of the Latin Kings and defendant
became a member of the Insane Deuces.
¶ 15 Arroyo testified that, in the morning on the day of the shootings, he went to defendant’s
house to hang out and clean their cars. At one point, Arroyo asked defendant if he knew
anyone with guns for sale. Defendant responded by showing Arroyo a gun he had purchased
from someone at work. Defendant complained that his bullets were the wrong size, and
Arroyo said that he could get the correct bullets at his aunt’s house. Arroyo’s aunt was
hosting a party at her house that day.
¶ 16 Arroyo drove his car to his aunt’s house and defendant rode along. According to Arroyo,
defendant had a glove on his right hand at the time. Arroyo noticed Gonzalez near the corner
of State and Kane Streets. When defendant noticed Gonzalez, he said “there goes that flake,”
which was meant as a disrespectful term toward the Latin Kings. Arroyo stopped at a stop
sign and Gonzalez started throwing gang signs toward defendant. Defendant and Gonzalez
argued for several seconds, and defendant drew a gun from his waistband and fired three
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times out the window. Arroyo testified that defendant pointed the gun at Gonzalez when he
fired.
¶ 17 Arroyo sped away from the scene, driving in a circular route until they arrived near
Perez, who was riding a bicycle. At defendant’s direction, Arroyo followed him. Arroyo
stopped the car near Perez, and defendant put his body halfway outside the car and reached
over the top. Arroyo looked through the sunroof and saw defendant fire the gun three times,
pointing the gun at Perez, not into the air. Arroyo sped away again and drove to defendant’s
house.
¶ 18 Defendant took the gun and the glove into his house while Arroyo stayed in the car
smoking marijuana. Defendant came back outside wearing a different shirt and not wearing
the glove. Arroyo sat in the passenger seat and defendant drove the two to McDonald’s for
some food. When leaving the restaurant, Arroyo noticed a “narco,” an undercover police car,
following them. Defendant pulled into a driveway and waited for the car to pass. Defendant
backed out and started driving the other way and the police car chased them. Defendant
threw the gun and the glove at Arroyo, who put on the glove, grabbed the gun, and exited the
car. Arroyo ran and threw the gun and the glove along the way. The police arrested Arroyo
and defendant. Arroyo testified that defendant told him in jail that he had urinated on his
hand to remove any gunshot residue.
¶ 19 Guadalupe Reyes, the owner of the home at 736 Kane Street, testified that the siding of
the home was damaged by bullets during the shooting involving Gonzalez. Miguel
Hernandez, who was renting the home from Reyes, testified that his Ford pickup truck,
which was parked in the driveway, sustained damage to the driver’s-side door. Reyes
testified that Hernandez was home at the time of the shooting.
¶ 20 Eric Cepeda, who lived at 763 Columbia Street, was home at the time of the shooting
involving Perez. After hearing a loud noise, Cepeda went outside and noticed a bullet hole in
the siding. Cepeda’s next-door neighbor, Jose Martinez, lived at 759 Columbia Street and his
tan Ford Fusion was parked in the driveway between the two houses. The car sustained
damage from the shooting.
¶ 21 The trial court admitted evidence from an evidence technician who took photographs of
the damage to the houses and the vehicles. The parties stipulated to several recorded
inculpatory statements made by defendant while in custody, including that he was concerned
that “the old lady saw me.”
¶ 22 Officer Sullivan testified about the building and property described as Brady Elementary.
Officer Sullivan testified that he was familiar with the area because he had been employed by
the Aurora police department for seven years and currently served as a general patrol officer
on the east side. Officer Sullivan was familiar with Brady Elementary because it was in his
district. He identified Brady Elementary as the building inside a purple rectangle drawn on
the State’s exhibit No. 28A, which was an aerial photograph of the area. When asked whether
Brady Elementary “is just a building that is not in operation or is it currently in operation,”
Officer Sullivan replied that “it’s currently a school” where he “see[s] school kids.”
¶ 23 Officer Sullivan testified that, on November 1, 2012, he returned to the area to measure
the distance from the location of the shooting to Brady Elementary. According to Officer
Sullivan, he “started [measuring] from the chain[-]link gate of 763 Columbia [Street], which
was approximately 17 feet from the sidewalk into the property via the driveway.” Officer
Sullivan used a calibrated measuring device, taking the “most direct route” possible although
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the topography made his path “[n]ot exactly straight.” Officer Sullivan measured a distance
of 856 feet from the chain-link gate to the property line of the school. He also measured a
distance of 959 feet from the gate to the school door itself.
¶ 24 Nino and Araceli Alfaro, who lived at 737 Kane Street, also testified about Brady
Elementary. Each witness identified Brady Elementary on exhibit No. 28A, and each testified
that the aerial photograph “fairly and accurately depict[ed]” the neighborhood on the date of
the incident.
¶ 25 The jury acquitted defendant of the two counts of attempted first-degree murder and one
count of armed violence but found him guilty of the remaining charges. After the jury
returned its verdict, the trial court sentenced defendant to five concurrent prison terms: 22
years for each of the armed violence convictions, 10 years each for aggravated discharge of a
firearm within 1,000 feet of a school and aggravated discharge of a firearm, and 5 years for
unlawful possession of a firearm by a street gang member. Defendant did not file a motion to
reconsider. We granted defendant leave to file a late notice of appeal.
¶ 26 II. ANALYSIS
¶ 27 A. Armed Violence
¶ 28 When considering a challenge to a criminal conviction based on the sufficiency of the
evidence, a reviewing court does not retry the defendant. People v. Smith, 185 Ill. 2d 532,
541 (1999). “When reviewing the sufficiency of the evidence, ‘the relevant question 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. Bishop, 218 Ill. 2d 232, 249 (2006) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)); People v. Collins, 106 Ill. 2d 237, 261
(1985). “Testimony may be found insufficient under the Jackson standard, but only where
the record evidence compels the conclusion that no reasonable person could accept it beyond
a reasonable doubt.” People v. Cunningham, 212 Ill. 2d 274, 280 (2004).
¶ 29 Our duty is to carefully examine the evidence while giving due consideration to the fact
that the court and the jury saw and heard the witnesses. The testimony of a single witness, if
it is positive and the witness credible, is sufficient to convict. Smith, 185 Ill. 2d at 541. The
credibility of a witness is within the province of the trier of fact, and the finding of the jury
on such matters is entitled to great weight, but the jury’s determination is not conclusive. We
will reverse a conviction where the evidence is so unreasonable, improbable, or
unsatisfactory as to create a reasonable doubt of the defendant’s guilt. Smith, 185 Ill. 2d at
542.
¶ 30 A person commits armed violence when he personally discharges a firearm that is a
Category I or Category II weapon while committing any felony defined by Illinois law, with
certain exceptions that do not apply here. 720 ILCS 5/33A-2(b) (West 2010). Defendant does
not dispute that the handgun used in the shootings qualifies as a Category I weapon for
purposes of the armed violence statute. See 720 ILCS 5/33A-1(c)(2) (West 2010) (“A
Category I weapon is a handgun, sawed-off shotgun, sawed-off rifle, any other firearm small
enough to be concealed upon the person, semiautomatic firearm, or machine gun.”).
¶ 31 Defendant was convicted of two counts of armed violence based on criminal damage to
the two parked vehicles. Specifically, the indictment alleged that defendant committed armed
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violence (see 720 ILCS 5/33A-2(b) (West 2010)) when he personally discharged a handgun
while performing an act of criminal damage to property (see 720 ILCS 5/21-1 (West 2010))
in that he (1) knowingly damaged Martinez’s 2006 Ford Fusion automobile, which was
parked outside his house on Columbia Street, and (2) knowingly damaged Hernandez’s 1997
Ford pickup truck, which was parked outside his house on Kane Street.
¶ 32 Each armed violence count alleged damage exceeding $300, which made each incident of
criminal damage to property a felony. See 720 ILCS 5/21-1(2) (West 2010) (violation is a
Class 4 felony if the damage to property exceeds $300 but does not exceed $10,000). The
State presented evidence that the Ford Fusion sustained $400 in damage and the Ford pickup
sustained $760 in damage.
¶ 33 A person commits criminal damage to property when he “knowingly damages any
property of another.” 720 ILCS 5/21-1(a)(1) (West 2010). When an offense is defined in
terms of a particular result, as in these charged instances of criminal damage to property, an
individual acts knowingly when he is consciously aware that his conduct is practically certain
to cause the result. 720 ILCS 5/4-5(b) (West 2010) (a person acts with knowledge of the
result of his or her conduct, described by the statute defining the offense, when he is
consciously aware that that result is practically certain to be caused by his conduct); People
v. Hauschild, 364 Ill. App. 3d 202, 219 (2006), aff’d in part and rev’d in part, 226 Ill. 2d 63
(2007).
¶ 34 Defendant argues that the two armed violence convictions must be reversed because the
State failed to prove the requisite mental state for the underlying offenses of criminal damage
to property. He contends that, because the State’s theory was that he intended to shoot
Gonzalez and Perez, there was no evidence that he was consciously aware that discharging
the handgun was practically certain to damage the vehicles. We disagree. The State presented
evidence that the two shootings occurred in the middle of the afternoon in a residential area
with personal property, like parked vehicles, nearby. Further, defendant shot three times from
a car window in the first incident and three to four times from a moving vehicle in the second
incident. Each time, defendant shot from the road toward the sidewalk, with houses, vehicles,
and other property in the background. From this evidence, the jury reasonably could have
determined that defendant was consciously aware that his conduct was practically certain to
damage property in the line of fire.
¶ 35 Defendant contends that the evidence showed that he committed two gang-related
shootings in which he fired the handgun intending to hit Gonzalez and Perez and that he did
not “target” any of the property specified in the indictment. Therefore, defendant concludes,
the State did not prove that he “knowingly” damaged the property. Defendant essentially
argues that the State was required to prove that he intended to damage the property, which is
not the required mental state for criminal damage to property.
¶ 36 Defendant’s reliance on In re T.A.B., 181 Ill. App. 3d 581 (1989), is misplaced. In T.A.B.,
the respondent, a minor, was convicted of felony criminal damage to property after he took
his foster father’s car, drove 70 miles per hour in a 35-mile-per-hour zone, lost control, and
swerved to avoid a car in his lane. The respondent clipped the bumper of the other car before
hitting a telephone pole, causing extensive damage to both vehicles. T.A.B., 181 Ill. App. 3d
at 583-84. The passenger in the respondent’s vehicle testified that, when the respondent saw
the other car, he tried to avoid it by shifting gears and applying the brakes. T.A.B., 181 Ill.
App. 3d at 584.
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¶ 37 On appeal, we agreed with the respondent that the evidence had not shown that he
knowingly or intentionally damaged either car, and therefore the State had failed to prove
that he acted with the requisite mental state to commit criminal damage to property under
section 24-1(a) of the Criminal Code. T.A.B., 181 Ill. App. 3d at 585. We explained that
“knowledge” involves an awareness of the harm that will result, while “negligence” involves
the failure to be aware of such results in a situation where the person has a legal duty to be so
aware. T.A.B., 181 Ill. App. 3d at 584-85.
¶ 38 We held that, even though the evidence showed that the respondent was driving at a
highly excessive speed, the evidence did not show that he was consciously aware that he was
practically certain to damage the two automobiles as a result. T.A.B., 181 Ill. App. 3d at 585.
Although the respondent’s conduct “would substantially increase one’s chance of becoming
involved in an accident, it would not make such an occurrence a practical certainty.” T.A.B.,
181 Ill. App. 3d at 585. Under the circumstances, the respondent’s conduct was “negligent or
even reckless,” but he did not act “knowingly.” T.A.B., 181 Ill. App. 3d at 585.
¶ 39 In T.A.B., the respondent took his foster father’s car on a “joyriding escapade[ ]” that
resulted in a traffic collision. T.A.B., 181 Ill. App. 3d at 586. This case is factually
distinguishable where, in separate incidents, defendant pointed a handgun at two people on
sidewalks in a residential area and fired the weapon six or seven times. The jury reasonably
could conclude that parked vehicles, including those struck, were visible in his line of fire.
Defendant’s conduct not only substantially increased the risk of damaging others’ property,
but made such a result a practical certainty. We conclude that a rational trier of fact,
examining the evidence in the light most favorable to the State, could have found the
essential elements of the offense, including the “knowing” mental state of criminal damage to
property, beyond a reasonable doubt. See People v. Jordan, 218 Ill. 2d 255, 270 (2006).
¶ 40 B. Aggravated Discharge of a Firearm
¶ 41 Defendant offers two arguments for reversing outright his convictions of aggravated
discharge of a firearm and aggravated discharge of a firearm within 1,000 feet of a school.
First, he contends that there was no evidence that he purposefully shot “at or into” the
buildings specified in the indictment, and therefore the State failed to prove beyond a
reasonable doubt that he had the requisite mental state for violating section 24-1.2(a)(1) of
the Criminal Code. Second, he argues that the State failed to prove that he discharged the
firearm with knowledge that the buildings were occupied. We conclude that requiring proof
that defendant shot purposefully at the buildings would improperly negate the “knowingly”
mental state requirement explicit in section 24-1.2(a). Further, the State presented sufficient
evidence that defendant shot at the buildings knowingly and knew or should have known that
the buildings were occupied.
¶ 42 1. Mental State
¶ 43 a. “At or into” v. “In the direction of”
¶ 44 Defendant argues that the evidence did not show that he had the requisite mental state to
commit aggravated discharge of a firearm. This issue involves an interpretation of section
24-1.2 of the Criminal Code. When construing a statute, this court’s primary objective is to
ascertain and give effect to the legislature’s intent, keeping in mind that the best and most
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reliable indicator of that intent is the statutory language itself, given its plain and ordinary
meaning. People v. Howard, 233 Ill. 2d 213, 218 (2009). To discern the plain meaning of
statutory terms, it is appropriate for the reviewing court to consider the statute in its entirety,
the subject it addresses, and the apparent intent of the legislature in enacting it. Howard, 233
Ill. 2d at 218. Unless the language of the statute is ambiguous, this court should not resort to
further aids of statutory construction and must apply the language as written. People v.
Glisson, 202 Ill. 2d 499, 505 (2002). Our review is de novo. People v. Almore, 241 Ill. 2d
387, 394 (2011).
¶ 45 Section 24-1.2(a) defines aggravated discharge of a firearm, specifying nine ways to
commit the offense. Defendant was charged with violating section 24-1.2(a)(1), which
provides that a person commits aggravated discharge of a firearm when he or she knowingly
or intentionally “[d]ischarges a firearm at or into a building he or she knows or reasonably
should know to be occupied and the firearm is discharged from a place or position outside
that building.” (Emphasis added.) 720 ILCS 5/24-1.2(a)(1) (West 2010). Defendant points
out that, in contrast, sections 24-1.2(a)(2) through (a)(9) define the offense in terms of
discharging a firearm “in the direction of” particular persons or vehicles. 720 ILCS
5/24-1.2(a)(2) to (a)(9) (West 2010). Defendant contends that the use of “at or into” in
section 24-1.2(a)(1) and “in the direction of” in sections 24-1.2(a)(2) through (a)(9) indicates
a legislative intent for the subsections to operate differently. See People v. Ousley, 235 Ill. 2d
299, 313-14 (2009) (“by employing certain language in one instance, and entirely different
language in another, the legislature indicated that different results were intended”).
¶ 46 Defendant contends that shooting “at or into” an object is different from shooting “in the
direction of” the same object and that the difference makes the mental state for section
24-1.2(a)(1) different from the mental state for sections 24-1.2(a)(2) through (a)(9). The
potentially relevant definitions of “at” are: (1) “used as a function word to indicate the
presence or occurrence of on, in, or near” and (2) “used as a function word to indicate that
which is the goal of an action or that toward which an action is or motion is directed.”
(Emphases added.) Webster’s Third New International Dictionary 136 (1993). Based on the
second definition of “at,” defendant asserts that the phrase “at or into” implies an intentional
targeting, while the phrase “in the direction of” does not.
¶ 47 Defendant asserts that because, under the State’s theory, he intended to shoot “at” and kill
the rival gang members on the sidewalk, his goal was not to shoot “at or into” the houses that
ultimately were struck by his gunfire. Defendant concludes that the discharge of bullets into
the houses was “incidental to the intended act” and therefore he lacked the requisite mental
state to commit aggravated discharge of a firearm under section 24-1.2(a)(1).
¶ 48 Defendant’s interpretation carries superficial appeal but the plain language of section
24-1.2(a) refutes it. Defendant takes the phrases “at or into” and “in the direction of” out of
context by disregarding the explicit mental state requirement set forth in section 24-1.2(a) in
favor of an inconsistent one that he reads into subsection (a)(1).
¶ 49 Section 24-1.2(a) begins with the requirement that the accused discharged the firearm
“knowingly or intentionally.” The “knowingly or intentionally” mental state requirement
applies to all subsections of section 24-1.2(a). Defendant draws an artificial distinction when
he points out that section 24-1.2(a)(1) contains the phrase “at or into” while sections
24-1.2(a)(2) through (a)(9) contain the phrase “in the direction of” when referring to the
persons or objects in the line of fire. To adopt defendant’s position that section 24-1.2(a)(1)
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requires proof that the accused “purposefully” discharged his weapon with the intent to strike
the building would be inconsistent with the explicit mental state requirement that the accused
acted “knowingly or intentionally.” Simply put, defendant’s interpretation negates the
“knowingly” mental state element of the offense.
¶ 50 Our conclusion is consistent with the dictionary definition of “at.” We agree with
defendant that the second definition quoted above applies: “used as a function word to
indicate that which is the goal of an action or that toward which an action is or motion is
directed.” (Emphases added.) Webster’s Third New International Dictionary 136 (1993).
Defendant defines “at” in terms of acting with a goal, but that implies acting with a mental
state that conflicts with the express mental state requirement of section 24-1.2(a)(1). To
achieve a harmonious statutory interpretation, we define “at” in terms of “directing” an
action toward an object. Webster’s Third New International Dictionary 640 (1993) (“direct”
means “to cause to turn, move or point undeviatingly or to follow a straight course with a
particular destination along a fixed path”). When defendant discharged the firearm “at or
into” the houses, he was knowingly directing the bullets toward the houses, even though
striking them might not have been his goal.
¶ 51 Defendant echoes his prior argument that the evidence showed that he fired the handgun
intending to hit Gonzalez and Perez and did not “target” the houses that were struck and
therefore he did not “knowingly” discharge the handgun “at or into” the houses. However,
defendant’s own theory of the case presented at trial refutes that assertion. Defense counsel
argued to the jury that defendant could not be found guilty of attempted first-degree murder
where Perez stated that defendant did not shoot at him and Nino stated that defendant was
shooting at a house, not at a person. Counsel argued that there was ample evidence that
defendant was shooting at the houses and not at Gonzalez and Perez, which renders
defendant’s appellate argument disingenuous at best.
¶ 52 In any event, defendant now incorrectly contends that the State was required to prove that
he intended to shoot “at or into” the houses, which is not the required mental state under
section 24-1.2(a)(1). Defendant fails to account for the possibility that one can intentionally
discharge a firearm at a person and knowingly strike another object instead, which is what
the State argued the evidence established in this case. Any evidence that defendant
discharged the handgun intending to strike Gonzalez and Perez, and not the houses, does not
compel reversal of the convictions of aggravated discharge of a firearm.
¶ 53 Furthermore, we conclude that the State proved beyond a reasonable doubt that defendant
acted “knowingly” when he discharged the firearm “at or into” the houses. “A person knows,
or acts knowingly or with knowledge of *** [t]he nature or attendant circumstances of his or
her conduct, described by the statute defining the offense, when he or she is consciously
aware that his or her conduct is of that nature or that those circumstances exist. Knowledge
of a material fact includes awareness of the substantial probability that the fact exists.” 720
ILCS 5/4-5(a) (West 2010). The State presented evidence that defendant shot three times
from a car window in the first incident and three to four times from a moving vehicle in the
second incident. The jury heard testimony and saw photographic evidence that the two
shootings occurred in a residential area with houses close together. The jury reasonably could
have determined that defendant was consciously aware that shooting from a car in the road,
even if intending to strike persons on the sidewalk, created a substantial probability that the
houses in the background would be struck.
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¶ 54 We conclude that a rational trier of fact, examining the evidence in the light most
favorable to the State, could have found beyond a reasonable doubt that defendant
“knowingly” discharged the firearm at or into the houses. See Jordan, 218 Ill. 2d at 270.
¶ 55 b. Occupied Buildings
¶ 56 Defendant next argues that the evidence did not show that, at the time of the shootings, he
“knew or reasonably should have known” that the buildings were occupied. See People v.
James, 246 Ill. App. 3d 939, 944-45 (1993) (“it is an essential element of [aggravated
discharge of a firearm] that the offender be aware of the presence of individuals”). We
conclude that there was sufficient circumstantial evidence to support this element. See
People v. Schmidt, 392 Ill. App. 3d 689, 702 (2009) (whether the defendant acts knowingly
may be inferred from circumstantial evidence, and inferences as to the defendant’s mental
state are a matter particularly within the province of the jury).
¶ 57 The jury heard evidence that the shootings occurred around 3:30 p.m. on the Saturday of
a holiday weekend in a residential neighborhood. Cars were parked on the street and in
driveways. Two neighborhood residents testified that they were outside in front of their
homes at the time. Reyes, the owner of one of the damaged homes, testified that his tenants
were home. Moreover, Cepeda, the resident of the other damaged home, testified that he, his
parents, and his girlfriend were in the house at the time of the shooting. Cepeda’s testimony
was corroborated by Officer Tristan Hennessy, who testified that she saw him and his father
at the house soon after the shooting.
¶ 58 We conclude that a rational trier of fact, examining the evidence in the light most
favorable to the State, could have found beyond a reasonable doubt that defendant knew or
should have known of the presence of people inside the damaged houses. See Jordan, 218 Ill.
2d at 270.
¶ 59 2. The School
¶ 60 Defendant alternatively argues that the State failed to prove that he was within 1,000 feet
of a school at the time of the shooting near 763 Columbia Street. First, defendant asserts that
the evidence did not show that the building described as “Brady Elementary School” was
operating as a “school” on the date of the offense. Second, he contends that, while there was
evidence of the distance from the school to the house that was struck by bullets, there was no
evidence of the distance from the school to defendant’s location when he discharged the
firearm. Defendant asks us to reduce the Class X felony conviction of aggravated discharge
of a firearm within 1,000 feet of a school to an unenhanced Class 1 felony and remand the
cause for a new sentencing hearing. We conclude that the State proved the locality
enhancement beyond a reasonable doubt.
¶ 61 As noted, a person commits aggravated discharge of a firearm when he or she knowingly
or intentionally “[d]ischarges a firearm at or into a building he or she knows or reasonably
should know to be occupied and the firearm is discharged from a place or position outside
that building.” 720 ILCS 5/24-1.2(a)(1) (West 2010). A violation of section 24-1.2(a)(1) is
ordinarily a Class 1 felony. 720 ILCS 5/24-1.2(b) (West 2010). However, a violation of
section 24-1.2(a)(1) committed in a school, on the real property comprising a school, within
1,000 feet of the real property comprising a school, at a school-related activity, or on or
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within 1,000 feet of any conveyance owned, leased, or contracted by a school to transport
students to or from school or a school-related activity, regardless of the time of day or time of
year that the offense is committed, is a Class X felony. 720 ILCS 5/24-1.2(b) (West 2010).
¶ 62 Count IV of the indictment charged defendant with committing aggravated discharge of a
firearm at the residence at 763 Columbia Street, “while within 1,000 feet of Brady
Elementary School.” Also, the jury was instructed to find defendant guilty only if he was
“within 1,000 feet of the real property comprising a school.”
¶ 63 In arguing that the evidence was insufficient to prove that Brady Elementary was an
active school on the date of the offense, defendant relies on People v. Ortiz, 2012 IL App
(2d) 101261, ¶ 11. Like this case, Ortiz involved a 1,000-foot locality enhancement. A police
officer testified that the distance between a drug transaction and “Emmanuel Baptist Church”
was less than 1,000 feet, but the officer did not testify to when he measured the distance.
Ortiz, 2012 IL App (2d) 101261, ¶ 11. The State also presented photographs of the church,
but presented no testimony as to when the photographs were taken. Ortiz, 2012 IL App (2d)
101261, ¶ 11. We found that the evidence was insufficient to show that the offense occurred
within 1,000 feet of a church, reasoning that we had “no way of knowing whether the
Emmanuel Baptist Church existed” on the date of the drug transaction. Ortiz, 2012 IL App
(2d) 101261, ¶ 11.
¶ 64 Defendant also cites People v. Cadena, 2013 IL App (2d) 120285, in which we relied on
Ortiz and reversed convictions of delivery of a controlled substance within 1,000 feet of a
church. Cadena, 2013 IL App (2d) 120285, ¶ 18. The only evidence indicating that the
“Evangelical Covenant Church” was being used as a church on the dates of the three
undercover drug transactions was a police officer’s “affirmative response to the leading
question, ‘[I]s that a church that is an active church?’ ” Cadena, 2013 IL App (2d) 120285,
¶ 16. We concluded that the question had no “temporal context” and could have referred to
the time of trial, rather than to the dates of the offenses. Cadena, 2013 IL App (2d) 120285,
¶ 16.
¶ 65 The temporal context absent from Ortiz and Cadena is present in this case. Here, Officer
Sullivan testified that he was familiar with the area, including Brady Elementary, because he
had been serving as a general patrol officer for several years before the offense. He identified
Brady Elementary on exhibit No. 28A. When asked whether Brady Elementary “is just a
building that is not in operation or is it currently in operation,” Officer Sullivan replied that
“it’s currently a school” where he “see[s] school kids.” However, Nino and Alfaro, who each
were familiar with the area from living there, also identified Brady Elementary on exhibit
No. 28A, and each testified that the aerial photograph “fairly and accurately depict[ed]” the
neighborhood on the date of the incident.
¶ 66 In Ortiz and Cadena, there was no evidence that the church existed on the date of the
offense. Here, the testimony regarding exhibit No. 28A showed that Brady Elementary
existed at the time of the shooting. From the testimony of Officer Sullivan, Nino, and Alfaro,
the jury reasonably could infer that the building comprising Brady Elementary was operating
as a school on the date of the offense.1
1
While the evidence in this case was sufficient to prove the locality enhancement, the best method
would have been for the State to simply elicit explicit testimony demonstrating a witness’s personal
knowledge that the school was operating as such on the date of the offense.
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¶ 67 We also conclude that the State proved the distance element of the locality enhancement.
Officer Sullivan measured a distance of 856 feet from the chain-link gate of the damaged
home at 763 Columbia Street to the property line of the school. He also measured a distance
of 959 feet from the gate of the home to the school door. He testified that the gate was about
17 feet from the sidewalk. Defendant argues that from this testimony “it is impossible to
determine the actual distance from the site of the discharge (somewhere on the street) to
Brady Elementary.” We disagree.
¶ 68 Exhibit No. 28A shows that Nino’s home at 768 Columbia Street is on the north side of
the street and east of 763 Columbia Street, which is on the south side of the street. Nino
testified that defendant’s car traveled west on Columbia Street toward Brady Elementary.
The car passed her house and paused in front of 763 Columbia, and defendant discharged the
firearm. At that point, defendant was closer to Brady Elementary than was the chain-link gate
of 763 Columbia Street, the point from which Officer Sullivan measured. The distance from
the gate to the school was 144 feet less than 1,000, and defendant discharged the firearm
from a point even closer to the school. The evidence thus supported the jury’s conclusion that
he committed the offense within 1,000 feet of Brady Elementary. We conclude that a rational
trier of fact, examining the evidence in the light most favorable to the State, could have found
beyond a reasonable doubt that defendant discharged the firearm within 1,000 feet of a
school. See Jordan, 218 Ill. 2d at 270.
¶ 69 3. Jury Instructions
¶ 70 Finally, defendant argues that the jury received inaccurate instructions on the elements of
aggravated discharge of a firearm. The State responds that defendant has forfeited the issue.
“[A] defendant generally forfeits review of any purported jury instruction error if the
defendant does not object to the instruction, or tender an alternative instruction at trial, and
does not raise the instruction issue in a posttrial motion.” People v. Bannister, 232 Ill. 2d 52,
76-77 (2008); see also People v. Enoch, 122 Ill. 2d 176, 186 (1988). These requirements
ensure that the trial court has the opportunity to correct a defective instruction and to prevent
the challenging party from gaining an unfair advantage by failing to act when the trial court
could remedy the faulty instruction and then obtaining a reversal on appeal. Mikolajczyk v.
Ford Motor Co., 231 Ill. 2d 516, 557-58 (2008).
¶ 71 Defendant concedes that he did not object to the instructions, tender alternative
instructions, or raise the issue in a posttrial motion, and therefore, the issue is forfeited.
Defendant nevertheless argues that he is entitled to a new trial on the two charges of
aggravated discharge of a firearm, because the court committed plain error in instructing the
jury and because trial counsel rendered ineffective assistance for failing to address the issue.
We disagree.
¶ 72 a. Plain Error
¶ 73 The plain-error doctrine bypasses normal forfeiture principles and allows a reviewing
court to consider unpreserved error where either: (1) a clear or obvious error occurs and the
evidence is so closely balanced that such error threatens to tip the scales of justice against the
defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurs and
is so serious that it affects the fairness of the defendant’s trial and challenges the integrity of
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the judicial process, regardless of the closeness of the evidence. People v. Walker, 232 Ill. 2d
113, 124 (2009); People v. Piatkowski, 225 Ill. 2d 551, 565 (2007). In both instances, the
burden of persuasion remains on the defendant. People v. Herron, 215 Ill. 2d 167, 187 (2005)
(citing People v. Hopp, 209 Ill. 2d 1, 12 (2004)). Where there is no error at all, there can be
no plain error. People v. Johnson, 218 Ill. 2d 125, 139 (2005).
¶ 74 Consistent with the plain-error rule, Illinois Supreme Court Rule 451(c) (eff. July 1,
2006) provides that, where a jury instruction suffers from a substantial defect, claims of error
are not subject to forfeiture on appeal. An erroneous instruction constitutes a substantial
defect, or plain error, when the instruction created a serious risk that the defendant was
incorrectly convicted because the jury did not understand the applicable law, so as to threaten
the fundamental fairness of the defendant’s trial. People v. Durr, 215 Ill. 2d 283, 299 (2005).
To prevail, the defendant need not prove that the error in the instruction actually misled the
jury. Herron, 215 Ill. 2d at 193. “When there is error in a close case, we choose to err on the
side of fairness, so as not to convict an innocent person.” Herron, 215 Ill. 2d at 193.
¶ 75 We disagree with defendant that the evidence presented against him at trial was closely
balanced, so as to permit review under the first prong of the plain error analysis. See Walker,
232 Ill. 2d at 124. As elaborated above, the evidence presented at trial overwhelmingly
established that defendant knowingly discharged the firearm “at or into” the damaged houses,
even though defendant might have intended to hit Gonzalez and Perez instead. Defendant
does not dispute the evidence that he discharged the firearm from the road toward the
sidewalk, with houses in the line of fire.
¶ 76 Defendant also urges us to review this issue under the second prong of the plain-error
analysis. The record shows that the trial court used the IPI instructions’ exact language for
the offense. Consistent with IPI Criminal 4th Nos. 18.11 and 18.12, the trial court instructed
the jurors as follows:
“A person commits the offense of aggravated discharge of a firearm when he
knowingly discharges a firearm in the direction of or into a building he knows or
reasonably should know to be occupied and from a place or position outside that
building.
To sustain the charge of aggravated discharge of a firearm, the state must prove
the following propositions:
First proposition: That the defendant knowingly discharged a firearm, and
Second proposition: That the defendant discharged the firearm in the direction
of or into a building and from a place outside that building, and
Third proposition: That when the defendant did so, he knew or reasonably
should have known the building was occupied.”2 (Emphases added.)
¶ 77 The purpose of jury instructions is to provide the jurors with the legal principles that
apply to the evidence so they can reach a correct verdict. Hopp, 209 Ill. 2d at 8. “Jury
instructions should not be misleading or confusing.” People v. Pinkney, 322 Ill. App. 3d 707,
2
When instructing the jury on the elements of aggravated discharge of a firearm within 1,000 feet of
a school, the trial court used modified versions of IPI Criminal 4th Nos. 18.11 and 18.12. The
instruction containing the locality enhancement also used the phrase “in the direction of or into.”
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717 (2000). “[T]here must be sufficient evidence in the record to support an instruction, lest
the jury be confused by issues improperly before it.” Pinkney, 322 Ill. App. 3d at 717.
¶ 78 Rule 451(a) provides that, whenever the IPI instructions contain an applicable instruction
and the court determines that the jury should be instructed on the subject, “the [IPI
instruction] shall be used[ ] unless the court determines that it does not accurately state the
law.” Ill. S. Ct. R. 451(a) (eff. July 1, 2006). Where there is no IPI instruction on a subject on
which the court determines the jury should be instructed, the court has the discretion to give a
nonpattern instruction. People v. Ramey, 151 Ill. 2d 498, 536 (1992). The court’s decision on
whether to use a non-IPI instruction should not be disturbed absent an abuse of that
discretion. People v. Pollock, 202 Ill. 2d 189, 211 (2002). Whether the court has abused its
discretion in giving a particular instruction will depend on whether it was an accurate,
simple, brief, impartial, and nonargumentative statement of the applicable law. Ill. S. Ct. R.
451(a) (eff. July 1, 2006); Pollock, 202 Ill. 2d at 211.
¶ 79 In this case, the trial court used the State’s proposed instructions, which were based on
IPI Criminal 4th Nos. 18.11 and 18.12. The court implicitly determined that the IPI
instructions applied to the evidence and accurately reflected the law; and, in turn, Rule 451(a)
mandated that the applicable pattern instructions be used.
¶ 80 In an argument related to his challenge to the sufficiency of the evidence, defendant
contends that the IPI instructions do not accurately state the law, because the legislature did
not intend “at or into” and “in the direction of or into” to be synonymous under section
24-1.2(a). Defendant contends that shooting “at or into” an object is different from shooting
“in the direction of or into” the same object and that the instructions’ use of the latter phrase
created the risk that the jury found that he acted with a lesser mental state than the law
requires for a finding of guilt. According to defendant, the legislature used precise language
to convey the distinct concepts of (1) firing “at or into” a targeted building and (2) firing “in
the direction of or into” an untargeted person or vehicle caught in the line of fire.
¶ 81 We again acknowledge the general principle that, “by employing certain language in one
instance, and entirely different language in another, the legislature indicate[s] that different
results were intended.” Ousley, 235 Ill. 2d at 313-14. However, we conclude that, in this
situation, the legislature intended the phrases in the respective subsections to operate in the
same way such that “in the direction of or into” has the same meaning as “at or into,” and
therefore the IPI instructions’ use of the phrases interchangeably is not an inaccurate
statement of the law.
¶ 82 As noted, our conclusion is consistent with the relevant dictionary definition of “at,”
which is “used as a function word to indicate that which is the goal of an action or that
toward which an action or motion is directed.” (Emphases added.) Webster’s Third New
International Dictionary 136 (1993). Defendant defines “at” in terms of acting with a goal,
but that implies acting with a mental state that conflicts with the express mental state
requirement of section 24-1.2(a)(1). Consistent with our analysis of the sufficiency of the
evidence, we harmonize IPI Criminal 4th Nos. 18.11 and 18.12 with section 24-1.2(a)(1) by
defining “at” in terms of “directing” an action toward an object. Webster’s Third New
International Dictionary 640 (1993) (“direct” means “to cause to turn, move or point
undeviatingly or to follow a straight course with a particular destination along a fixed path”).
The legislature must have intended this definition of “at or into,” which does not conflict
with the “knowing” mental state required for a finding of guilt. When defendant discharged
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the firearm “at or into” the houses, he was knowingly directing the bullets toward the houses,
even though striking them might not have been his goal. In other words, he discharged the
firearm “in the direction of or into” the houses, which is consistent with the IPI instructions
that the court used. We conclude that the legislature intended the phrases “at or into” and “in
the direction of or into” to have the same meaning, as recognized by the drafters of the IPI
and approved by the supreme court committee on pattern jury instructions in criminal cases.
¶ 83 Defendant’s position is that using the phrase “in the direction of or into” created a risk
that the jury found that he shot in the direction of the buildings but not “at” them, and
therefore the State’s burden of proof was diminished in this case. We disagree. The State
introduced overwhelming evidence that defendant knowingly shot at or into the buildings and
that the bullets actually struck them.
¶ 84 b. Ineffective Assistance
¶ 85 Following a similar rationale, we conclude that defense counsel’s failure to challenge the
State’s instructions did not deny defendant the effective assistance of counsel. Both the
United States and Illinois Constitutions guarantee a defendant the right to effective assistance
of counsel. See U.S. Const., amend. VI; Ill. Const. 1970, art. I, § 8. The purpose of this
guarantee is to ensure that the defendant receives a fair trial. Strickland v. Washington, 466
U.S. 668, 684-85 (1984); People v. Pineda, 373 Ill. App. 3d 113, 117 (2007). The ultimate
focus of the inquiry is on the fundamental fairness of the challenged proceedings. Strickland,
466 U.S. at 696; Pineda, 373 Ill. App. 3d at 117. “However, there is a strong presumption of
outcome reliability, so to prevail, a defendant must show that counsel’s conduct ‘so
undermined the proper functioning of the adversarial process that the trial cannot be relied on
as having produced a just result.’ ” Pineda, 373 Ill. App. 3d at 117 (quoting Strickland, 466
U.S. at 686).
¶ 86 Claims of ineffective assistance of counsel are generally evaluated under the two-part test
set forth in Strickland, 466 U.S. at 687, and adopted by our supreme court in People v.
Albanese, 104 Ill. 2d 504, 525-26 (1984). People v. Harris, 225 Ill. 2d 1, 20 (2007). Under
Strickland, defense counsel was ineffective only if (1) counsel’s performance fell below an
objective standard of reasonableness; and (2) counsel’s error prejudiced the defendant.
Failure to establish either prong is fatal to the claim. Strickland, 466 U.S. at 687; Pineda, 373
Ill. App. 3d at 117.
¶ 87 We assess counsel’s performance by using an objective standard of competence under
prevailing professional norms. People v. Ramsey, 239 Ill. 2d 342, 433 (2010). To establish
deficient performance, the defendant must overcome the strong presumption that counsel’s
action or inaction was the result of sound trial strategy. Ramsey, 239 Ill. 2d at 433. Counsel’s
strategic choices that are made after investigation of the law and the facts are virtually
unassailable. Ramsey, 239 Ill. 2d at 433.
¶ 88 Defense counsel’s decision not to challenge the discrepancy between IPI Criminal 4th
Nos. 18.11 and 18.12 and section 24-1.2(a)(1) did not constitute deficient performance, as the
IPI instructions accurately stated the law and an objection to the instructions would have
lacked merit.
¶ 89 Furthermore, defendant was not prejudiced by the IPI instructions. To establish prejudice,
the defendant must show that “ ‘there is a reasonable probability that, but for counsel’s
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unprofessional errors, the result of the proceeding would have been different.’ ” Pineda, 373
Ill. App. 3d at 117 (quoting Strickland, 466 U.S. at 694). “ ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” Pineda, 373 Ill. App. 3d at
117 (quoting Strickland, 466 U.S. at 694). The prejudice component of Strickland entails
more than an “outcome-determinative test”; rather, the defendant must show that counsel’s
deficient performance rendered the result of the trial unreliable or the proceeding
fundamentally unfair. People v. Richardson, 189 Ill. 2d 401, 411 (2000); Pineda, 373 Ill.
App. 3d at 117. Here, the evidence overwhelmingly established that defendant knowingly
discharged the firearm “at or into” the damaged houses, and even though the IPI instructions
deviated from the language of section 24-1.2(a)(1), the court did not err in using the
instructions because they conveyed the same meaning as the statute. In the absence of any
error, counsel did not render ineffective assistance, and therefore defendant is not entitled to
a new trial on the charges of aggravated discharge of a firearm.
¶ 90 III. CONCLUSION
¶ 91 We hold that (1) the State proved beyond a reasonable doubt that defendant knowingly
committed felony criminal damage to property, which formed the basis of the armed violence
convictions, when he discharged the firearm and struck the two vehicles; (2) the State proved
beyond a reasonable doubt that defendant knowingly discharged the firearm “at or into” the
houses that were struck and that defendant knew or should have known that they were
occupied; (3) the State proved beyond a reasonable doubt that Brady Elementary was
operating as a school on the date of the offense and that defendant discharged the firearm
within 1,000 feet of the school; and (4) the trial court did not err in using IPI Criminal 4th
Nos. 18.11 and 18.12, which instructed the jury that a person commits aggravated discharge
of a firearm by firing “in the direction of or into” a building. Accordingly, the judgment of
the circuit court of Kane County is affirmed.
¶ 92 Affirmed.
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