In re Nasie M. ( 2016 )

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Appellate Court Date: 2016.02.17 13:39:36
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In re Nasie M., 2015 IL App (1st) 151678
Appellate Court In re NASIE M., a Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Nasie M., a Minor, Respondent-Appellant).
District & No. First District, Second Division
Docket No. 1-15-1678
Filed December 1, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 15-JD-68; the
Review Hon. William G. Gamboney, Judge, presiding.
Judgment Reversed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Kristen E. Mueller, all of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary P. Needham, and Lisa Sterba, Assistant State’s Attorneys, of
counsel), for the People.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Neville and Simon concurred in the judgment and opinion.
OPINION
¶1 The State contends Nasie M., a minor, accidently shot himself twice in the foot, for
which it charged him with reckless discharge of a firearm, two counts of aggravated unlawful
use of a weapon, and unlawful possession of a firearm. The State’s case rests on a police
officer who testified that Nasie told him he was holding a gun and shot himself while running
away from two men he thought were going to rob him. Nasie, however, denies admitting he
shot himself and maintains that one or both of the men shot him. The trial court found the
State’s theory more believable and convicted Nasie on three of the four charges. The trial
court committed Nasie to the Department of Juvenile Justice (DJJ) for an indeterminate term.
¶2 Nasie contends his conviction should be reversed because the State presented no evidence
he possessed a firearm when he was shot in the foot. Alternatively, Nasie asserts the trial
court violated his statutory and due process rights by sentencing him without a parent present
and by failing to comply with the requirements of section 5-750(1) of the Juvenile Court Act
of 1987 (705 ILCS 405/5-750(1) (West 2012)) when committing him to the DJJ for an
indeterminate term.
¶3 We conclude that the State failed to prove beyond a reasonable doubt that Nasie
possessed a firearm and, thus, could not prove he committed the offenses of reckless
discharge of a firearm, aggravated unlawful use of a weapon, or unlawful possession of a
firearm. Because we reverse, we need not address Nasie’s sentencing arguments.
¶4 BACKGROUND
¶5 On September 30, 2014, Nasie sustained gunshot wounds to his foot and was taken to the
hospital. On January 8, 2015, the State filed a petition for adjudication of wardship alleging
that Nasie, who was 17 years old, shot himself in the foot with a firearm and was delinquent
based on the following offenses: one count of reckless discharge of a firearm (720 ILCS
5/24-1.5(a) (West 2012)) (count I), two counts of aggravated unlawful use of a weapon
(AUUW) (720 ILCS 5/24-1.6(a)(3)(C), (a)(3)(I) (West 2012)) (counts II and III), and one
count of unlawful possession of a firearm (720 ILCS 5/24-3.1(a)(1) (West 2012)) (count IV).
¶6 At the adjudicatory hearing, Detective Daniel Berg testified. Detective Berg stated that on
September 30, 2014, at about 8:30 p.m., he went to a vacant lot at 535 North Sawyer Avenue
in Chicago, to investigate a report of a juvenile shot. When he arrived, Detective Berg
learned that Nasie, the victim, was at the hospital for treatment. Detective Berg saw a crime
scene marker in the vacant lot indicating a spent shell casing had been found there. Detective
Berg went to Nasie’s girlfriend’s apartment about a block and a half away. Officers informed
Detective Berg that a .38-caliber revolver had been recovered from the apartment. Detective
Berg and his partner, Detective Connolly, then went to the hospital to speak with Nasie.
¶7 When Detective Berg walked into Nasie’s examination room, he saw Nasie had a gunshot
wound on the top of his foot. He did not see the bottom of his foot. After advising Nasie of
his Miranda rights (Miranda v. Arizona, 384 U.S. 436 (1966)), Detective Berg asked him
what happened. Nasie told Detective Berg that as he was walking past a vacant lot with his
girlfriend, two people approached from behind. He was scared and began to run. He heard
gunshots and felt pain in his foot. Detective Berg told Nasie he could not have been shot on
top of his foot if a shooter had approached him from behind. Detective Berg also told Nasie
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that a gun had been found at his girlfriend’s house and asked if it belonged to him. Nasie
admitted the gun was his. He said he had it for protection because he had recently been
robbed and beaten up on that block. Detective Berg said that Nasie told him that while he and
his girlfriend were walking, he was holding the gun with the sleeve of his sweatshirt pulled
down over it. He said when he heard footsteps, he thought he was going to be robbed and
beaten again, so he started to run and accidentally pulled the trigger and shot himself. He and
his girlfriend ran to her apartment, and she took the gun inside.
¶8 On cross-examination, Detective Berg said he did not examine the shell casing found in
the vacant lot and did not know if it was a .9-millimeter casing. He explained that revolvers
generally do not eject shell casings but pistols do. He stated that when he saw the injury to
the top of Nasie’s foot he had reason to believe Nasie shot himself. He did not know if Nasie
was on pain medication when he questioned him in the emergency room, and he
acknowledged he did not inventory Nasie’s sweatshirt or shoes or send those items out for
gunshot residue testing.
¶9 Officer Tricia Solis went to the location of the shooting at about 8:35 p.m., in response to
a call of a woman with a gun. Solis said when she arrived she saw both Nasie and his
girlfriend, Kavarcia. According to Solis, her partner spoke with Nasie and Kavarcia, while
she looked for the gun and shell casings. Solis found shell casings.
¶ 10 Officer Rojas testified that at about 9 or 9:15 p.m., he went to the first floor apartment of
Kavarcia’s mother to investigate a report of an accidental self-inflicted gunshot. Rojas spoke
to Kavarcia and her mother, the leaseholder. Kavarcia’s mother consented to a search of the
apartment. Rojas found a .38-caliber revolver under a mattress in the first bedroom. Officer
Theodore Delis, an evidence technician, recovered the gun. Delis testified that the cartridge
of the .38-caliber revolver had a live, not a spent, round.
¶ 11 Officer Patrick Bowery arrested Nasie on January 7, 2015. Nasie did not have a Firearm
Owners Identification (FOID) card on him at that time.
¶ 12 After the State rested, defense counsel moved for a directed finding, which was granted
as to count II (AUUW based on carrying a firearm without a valid FOID card) and denied as
to counts I, III, and IV.
¶ 13 Nasie testified that on September 30, 2014, he and his girlfriend, Kavarcia, were walking
in the 500 block of North Sawyer Avenue at about 8:30 p.m. They were listening to music on
one set of headphones, so Nasie had a headphone in one of his ears. Nasie said he heard
rustling coming from the bushes across the street. Nasie turned around and saw two black
men coming out of the bushes and running toward him. Nasie recognized them from school
but did not know their names. Nasie described one of the men as dark skinned and skinny
and wearing a black hoodie and black jeans and holding a revolver. He said the other man
was light skinned and heavy set, with a black hoodie and sky blue pants. The second man
was holding an automatic pistol. Nasie said the men were about 50 feet away and when he
saw that they were running in his direction, he and Kavarcia ran. Nasie then heard seven
gunshots and felt a burning feeling in his right foot.
¶ 14 Nasie said he had two gunshot wounds to the bottom of his foot and one to the top of his
foot. He rated his pain level as 10 on a scale of 1 to 10. At the hospital he was given pain
medication, which helped ease the pain but made him feel high and tired and caused blurry
vision. Nasie was in and out of sleep and did not recall speaking to anyone from the police
department while in the emergency room or later, when he was moved to a different part of
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the hospital. Nasie denied telling the police he was trying to get a gun out of his sleeve and
accidentally shot himself in the foot. Defense counsel showed Nasie photographs of the red
hoodie he was wearing the night he was shot, which did not show any bullet holes in the
sleeves. Defense counsel also showed Nasie photos of his foot, taken on January 16, 2015,
while he was at the Juvenile Temporary Detention Center (JTDC). The pictures showed one
dark spot on the top of Nasie’s foot and two lighter spots on the bottom of his foot.
¶ 15 After closing arguments, the judge found Nasie guilty of reckless discharge of a firearm,
AUUW, and unlawful possession of a firearm. The judge acknowledged the police could
have done more, including inventorying Nasie’s clothing, checking for gunshot residue and
finger prints, and forensic testing of the gun that was recovered. The judge said he was not
“100 percent sold” that the gun was actually used in the shooting but that “I don’t even know
if you need a gun recovered in a case like this.” He found the pictures of Nasie’s foot
unhelpful in determining how Nasie sustained his injuries, because the photos were blurry
and were taken several months after the shooting. The judge also noted that neither side
presented any medical testimony regarding Nasie’s gunshot wounds.
¶ 16 The judge’s decision turned primarily on an assessment of the credibility of the
witnesses. The trial court found Detective Berg’s testimony to be credible and believable and
Nasie’s testimony not to be credible. He said the defense did not provide medical testimony
to support its argument that Nasie’s statement at the hospital was unreliable because he was
under the influence of pain medication. He concluded that Nasie was “alert enough to at least
make up what I believe to be a lie about how he said this happened and then after being
confronted with some problems with his story, he admits shooting himself.”
¶ 17 Nasie’s dispositional hearing began on May 28, 2015. Nasie’s mother, sister, and
stepfather were present. The judge reviewed Nasie’s juvenile record from the social
investigation report, noting that he had four prior referrals to juvenile court, with three
findings of delinquency and one probation violation finding. The social investigation report
indicated Nasie had been in the JTDC 12 times and was twice committed to the Department
of Corrections, in October 2012 and September 2013. The State asked for a “straight
commit” to the DJJ, arguing Nasie was a danger to himself and others, given that he shot
himself in the foot. The State also noted Nasie had a prior adjudication in 2013 for robbery
and AUUW and asked that Nasie be committed on count III, AUUW, the highest classed
offense.
¶ 18 Defense counsel asked the court to consider Nasie’s behavior and accomplishments since
entering the JTDC five months earlier. He noted that Nasie reached the highest level of status
for behavior, regularly attended school, and had no major rule violations. He also earned 11
awards and certificates for leadership, behavior, and academics. Counsel referred to Nasie’s
strong family support and structure, noting that a family member attended every court date,
except when advised that their presence was not necessary. Defense counsel asked that Nasie
be given a “finding to stand, case closed” or alternatively, a “30-day closeout while he
remains in JTDC.”
¶ 19 The judge continued the hearing to permit the parties to research whether the State had
properly notified Nasie that his count III conviction for AUUW would be considered a Class
2 rather than a Class 4 felony based on his prior AUUW conviction. When the hearing
resumed on June 11, 2015, the judge noted that Nasie’s sisters and niece were in court, but
that his mother was absent. The judge ruled that the State’s notice regarding the decision to
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proceed on the AUUW as a Class 2 felony only applied to count II and not count III. Then,
after arguments in aggravation and mitigation and Nasie’s brief statement in allocution, the
judge announced his findings. The judge imposed a straight commitment order on count III
(AUUW) as a Class 4 felony and on count I (reckless discharge) as a Class 4 felony. He
vacated count IV because it merged with count III and gave Nasie 156 days of credit for
presentence incarceration.
¶ 20 ANALYSIS
¶ 21 Nasie argues the State failed to prove beyond a reasonable doubt that he committed the
offenses of reckless discharge of a firearm, AUUW, or unlawful possession of a firearm,
because the State presented no evidence that he actually possessed a firearm. The State
contends both direct and circumstantial evidence supported Nasie’s convictions. Specifically,
Detective Berg’s testimony that Nasie told him he accidentally shot himself with a gun and
the location and nature of Nasie’s wounds led to the reasonable inference the injuries were
self-inflicted.
¶ 22 Juvenile delinquency proceedings have three phases: the findings phase, the adjudicatory
phase, and the dispositional phase. In re Samantha V., 234 Ill. 2d 359, 365 (2009). During the
findings phase, the court holds a trial applying the rules of evidence for a criminal case, and
the State presents proof beyond a reasonable doubt of every necessary fact to find a
respondent delinquent. Id. If a delinquency finding is entered, the matter proceeds to
sentencing. 705 ILCS 405/5-620 (West 2012); Samantha V., 234 Ill. 2d at 365. The
sentencing proceeding includes the adjudication phase, where the court determines whether it
is in the best interests of the minor and the public to make the minor a ward of the court. 705
ILCS 405/5-705(1) (West 2012); Samantha V., 234 Ill. 2d at 365. If the court makes the
minor a ward of the court, the matter proceeds to the dispositional phase where the court
fashions an appropriate sentence that will best serve the minor and the public. Samantha V.,
234 Ill. 2d at 365-66.
¶ 23 When a respondent challenges the sufficiency of the evidence, the relevant question on
review involves whether, after considering the evidence in the light most favorable to the
State, any rational trier of fact could have found proof of the essential elements of the crime
beyond a reasonable doubt. In re W.C., 167 Ill. 2d 307, 336 (1995). Generally, the trier of
fact sits in the best position to assess credibility; it is not the function of a reviewing court to
retry the respondent. People v. Austin M., 2012 IL 111194, ¶ 107. A delinquency finding will
only be reversed when the proof was so improbable, implausible, or unsatisfactory that
reasonable doubt exists as to the respondent’s guilt. In re Keith C., 378 Ill. App. 3d 252, 257
(2007).
¶ 24 Circumstantial evidence that proves the elements of the crime charged beyond a
reasonable doubt suffices to sustain a criminal conviction. People v. Hall, 194 Ill. 2d 305,
330 (2000). “Circumstantial evidence is ‘proof of facts and circumstances from which the
trier of fact may infer other connected facts which reasonably and usually follow according
to common experience.’ ” People v. McPeak, 399 Ill. App. 3d 799, 801 (2010) (quoting
People v. Stokes, 95 Ill. App. 3d 62, 68 (1981)). In determining the reasonableness of an
inference, the trier of fact need not look for all possible explanations consistent with
innocence or “be satisfied beyond a reasonable doubt as to each link in the chain of
circumstances.” (Internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 117
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(2007). Instead, all the evidence as a whole must satisfy the trier of fact that the defendant is
guilty beyond a reasonable doubt. People v. Edwards, 218 Ill. App. 3d 184, 196 (1991).
¶ 25 The offenses of reckless discharge of a firearm and unlawful possession of a firearm
require proof that a defendant actually possessed a firearm. The reckless discharge statute
provides: “A person commits reckless discharge of a firearm by discharging a firearm in a
reckless manner which endangers the bodily safety of an individual.” 720 ILCS 5/24-1.5(a)
(West 2012). The unlawful possession statute provides: “A person commits the offense of
unlawful possession of firearms or firearm ammunition when *** [h]e [or she] is under 18
years of age and has in his possession any firearm of a size which may be concealed upon the
person.” 720 ILCS 5/24-3.1(a) (West 2012). In addition, the AUUW count, as charged, also
requires proof that Nasie possessed a firearm. Under section 24-1.6(a)(3)(I), a person under
the age of 21 commits the offense of AUUW when he or she knowingly possesses a pistol,
revolver, stun gun, or taser or other firearm unless the person is engaged in lawful activities
under the Wildlife Code (520 ILCS 5/1.1 et seq. (West 2012)). 720 ILCS 5/24-1.6(a)(3)(I)
(West 2012).
¶ 26 Thus, the State had to provide evidence showing beyond a reasonable doubt that Nasie
was in possession of a firearm. The crux of the State’s case consists of Detective Berg’s
testimony that at the hospital, although Nasie initially claimed he was shot at while running
away, he changed his story and admitted to accidentally shooting himself when Detective
Berg suggested the shooting could not have occurred the way Nasie claimed. Nasie refuted
this version of events, stating that he was shot in the bottom of his foot while being chased by
two men. He also asserted that he never told Detective Berg he accidentally shot himself. The
defense suggested that if Nasie had told Detective Berg he shot himself that admission was
not reliable because he was under the influence of pain medication.
¶ 27 The State presented no eyewitness testimony that Nasie possessed a gun when shot. The
State did not present any forensic evidence connecting Nasie to the shell casing recovered in
the vacant lot or the shell casing to the gun the police recovered from Nasie’s girlfriend’s
apartment. Indeed, Detective Berg acknowledged that a revolver, like the one the police
recovered at the girlfriend’s apartment, would not have expelled a shell casing, thus severing
any connection between the shell casing found in the parking lot and the gun found at the
apartment. Furthermore, the lack of forensic evidence fails to establish that the gun recovered
even had been fired that day. Officer Delis testified the recovered revolver had a live
.38-caliber round and did not contain any spent cartridges. Moreover, the State failed to
perform any forensic testing on Nasie’s clothes, shoes, or hands to check for gunshot residue.
Thus, no physical evidence shows that Nasie had fired a gun.
¶ 28 Aside from Detective Berg’s testimony, Nasie’s foot wounds provided the only other
evidence that he was shot. Although the State contends Detective Berg’s testimony about his
conversation with Nasie at the hospital supports a finding that Nasie admitted to shooting
himself, Nasie denies ever having that conversation with Detective Berg. Some dispute exists
as to whether Nasie was shot in the top of the foot, as the State contends, or on the bottom of
the foot, as Nasie contends. Medical records and evidence may have helped clarify this
question, but the record does not contain those records or explanatory evidence. Moreover,
one of the State’s witnesses, Officer Solis, testified that her partner spoke with Nasie at the
scene of the shooting, but the State failed to present Solis’s partner as a witness or any
evidence as to what Nasie said at that time. Certainly, Solis’s partner’s testimony about what
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he saw and what Nasie said immediately after the shooting could shed light on what actually
occurred.
¶ 29 To support its argument that the evidence presented established Nasie’s guilt, the State
relies on three cases involving a defendant convicted for possession of a weapon by a felon:
People v. Griham, 399 Ill. App. 3d 1169 (2010), People v. Peete, 318 Ill. App. 3d 961
(2001), and People v. Rasmussen, 233 Ill. App. 3d 352 (1992). But each of these cases,
unlike here, entailed more direct evidence of the defendant’s guilt, namely eyewitness
testimony that the defendant had a firearm or recovery by the police of the firearm. In
Griham, the police arrested the defendant in response to a 911 call reporting a man with a
gun in his car. Griham, 399 Ill. App. 3d at 1170. The State presented the recorded statements
that two eyewitnesses gave to the police on the day of the arrest, stating that they saw
defendant with a gun. Id. One eyewitness said the defendant pointed a handgun at him and
said that if his brother or cousin testified in court against defendant’s friends regarding an
earlier robbery, there “ ‘was gonna be some bloodsheddin’.’ ” Id. The other eyewitness’s
recorded statement recounted seeing defendant pull a handgun on the other eyewitness. Id. At
trial, the eyewitnesses who had been threatened recanted and the other eyewitness testified
that the gun was just a toy gun. Id. The defendant was found guilty of unlawful possession of
a weapon by a felon and, the appellate court affirmed, concluding that “the jury in this case
could have found the prior inconsistent recorded statements of [the witnesses] were more
believable than their testimony at trial.” Id. at 1171.
¶ 30 In Rasmussen, the State presented eyewitness testimony from two police officers who
saw the defendant holding a gun in his hand before throwing it out of sight. Rasmussen, 233
Ill. App. 3d at 356. The police immediately recovered the gun where defendant had thrown it.
The defense presented an eyewitness who testified that the defendant was not holding a gun
and that the gun’s owner was unknown and another witness who claimed the gun was his and
that he had hidden it in the defendant’s apartment without his knowledge. Id. at 357-58. The
appellate court affirmed defendant’s conviction stating that “this issue depends on whether
the jury chose to believe the testimony of the various police officers or the testimony of
defendant and his corroborating witnesses. As such, defendant has a high burden [because]
issues of witness credibility are within the particular province of the jury as the trier of fact.”
Id. at 370.
¶ 31 In Peete, a police officer testified that while chasing the defendant he saw him reaching
for something at his hip. 318 Ill. App. 3d at 963. The police lost sight of the defendant as he
turned the corner at a house. After apprehending and arresting the defendant, the police found
a gun near the house on the corner, where the police had lost sight of the defendant. Id. The
owner of the residence testified that his children played on the porch earlier in the day and
had not seen the gun. Id. at 965-66. The appellate court affirmed defendant’s conviction,
finding that “[b]ased on the circumstantial evidence, a rational trier of fact could have found
defendant guilty beyond a reasonable doubt.” Id. at 966. The court stated that “[w]hile the
testimony is sketchy and confusing, a reasonable jury could have concluded that defendant”
discarded the gun while he “was out of the sight of both [police officers].” Id. at 965.
¶ 32 The State asserts that as in Griham, Peete, and Rasmussen, we should affirm the trial
court’s finding that the police witnesses were more credible than Nasie and sufficient to
support a finding of guilt beyond a reasonable doubt. We disagree. Unlike in Griham and
Rasmussen no eyewitnesses saw Nasie holding a gun or, as in Peete, anything that could
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reasonably be believed to be a gun. Further, although police recovered a gun in Nasie’s
girlfriend’s apartment, that gun turned out to be inconsistent with the shell casing found in
the vacant lot, nor was there evidence that the revolver had been fired, as it contained only
one unspent cartridge. No forensic testing had been conducted on the revolver, the shell
casing, Nasie, or the clothes he wore to establish that the revolver had been recently fired by
him.
¶ 33 Moreover, no evidence established the nature of Nasie’s wound to his foot. Detective
Berg testified that after seeing the injury to the top of Nasie’s foot he surmised the wounds
were self-inflicted. The State presented no medical or expert evidence showing that Nasie
was shot in the top of the foot, which would lend support to the State’s theory that the
gunshot wound was self-inflicted.
¶ 34 The State argued in its brief and at oral argument that when a case boils down to a
credibility determination and a resolution of conflicting testimony, a reviewing court may not
substitute its judgment for that of the trier of fact. People v. Jones, 295 Ill. App. 3d 444, 452
(1998). The State asserts that because the trial judge heard one version of events from
Detective Berg and another version from Nasie and found the former to be credible and the
latter to be not credible, we must defer to the trial court’s judgment. We agree that a
reviewing court in “carefully examin[ing] the evidence” must give “due consideration to the
fact that the court and jury saw and heard the witnesses.” People v. Smith, 185 Ill. 2d 532,
541 (1999). We also acknowledge that the testimony of a single witness can be sufficient to
convict. Id. But, as our supreme court stated in Smith, despite our deference to the trier of
fact on witness credibility, we may reverse a conviction “where the evidence is so
unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s
guilt.” Id. at 542. We find the evidence, or lack of evidence, so unsatisfactory that it creates a
reasonable doubt as to Nasie’s guilt.
¶ 35 First, the State offered no eyewitnesses to the shooting or any evidence that Nasie was in
possession of the gun when he injured his foot. In addition, the State presented testimony that
there was a bullet casing found near where the shooting occurred but no evidence tying it to
Nasie’s wounds. Indeed, at oral argument, the State agreed the casing could have been from a
prior shooting, which begs the question as to why the State presented testimony about it. The
State also offered testimony about the discovery of the revolver at Nasie’s girlfriend’s
apartment. But again, there is no evidence showing that the revolver was fired that night or
was in any way connected to this shooting. Further, as to the issue of witness credibility, the
State argues that we should presume Nasie was credible when he purportedly confessed to
Detective Berg at the hospital but not credible when he testified at trial, without explaining
why. Moreover, the State’s version of events is not necessarily corroborated by the testimony
at trial. Detective Berg testified that he responded to a report of a shooting at approximately
8:30 p.m. He further testified that at the hospital, Nasie told him that after he shot himself in
the foot, he and Kavarcia ran to her apartment and stashed the gun. But, Officer Solis
testified that when she went to the vacant lot at about 8:35 p.m., both Nasie and Kavarcia
were there. She also testified that her partner spoke with Nasie, but the State never presented
the partner as a witness. Thus, according to the testimony presented by the State, after getting
shot in the foot, which the State concedes was a painful injury, Nasie ran or hopped to
Kavarcia’s apartment to get rid of the gun and then returned to the vacant lot to speak to the
police, all within the span of a few minutes, which appears questionable.
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¶ 36 So, we are left with the wounds to Nasie’s foot, which the State asserts came about from
a self-inflicted gunshot. The State notes that Nasie stated on numerous occasions during his
testimony that he still had bullet fragments in his foot, but Nasie, a teenager, hardly qualifies
as a medical expert. The State also pointed to Detective Berg’s testimony that he saw the
wound on the top of Nasie’s foot and determined it was a gunshot wound. But again, as the
State concedes, Detective Berg is not an expert on gunshot wounds. In the absence of
medical or gunshot expert testimony, it is not possible to conclude, beyond a reasonable
doubt, that Nasie’s wounds came from a firearm and were self-inflicted.
¶ 37 Lastly, absent here is evidence of eyewitnesses seeing a defendant holding a gun, as in
Rasmussen, or forensic evidence showing that the defendant fired a gun, or medical evidence
establishing the gunshot wounds were self-inflicted. None of that is the case here. Moreover,
inconsistencies in the testimony of the State’s witnesses cast doubt as to what occurred on the
night of the shooting. Without evidence showing that Nasie possessed a firearm or
circumstantial evidence showing his wounds must have been self-inflicted, the charges
against Nasie, which required evidence of possession of a firearm beyond a reasonable doubt,
cannot stand. Thus, we reverse his conviction.
¶ 38 CONCLUSION
¶ 39 The State has failed to prove beyond a reasonable doubt that Nasie possessed a firearm
when he was shot in the foot and, thus, his convictions for reckless discharge of a firearm,
AUUW, and unlawful possession of a firearm must be reversed. Accordingly, we do not
reach Nasie’s sentencing arguments.
¶ 40 Reversed.
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