People v. Hilson

2023 IL App (5th) 220047NOTICE
Decision filed 06/02/23. The
text of this decision may be NO. 5-22-0047
changed or corrected prior to
the filing of a Peti ion for IN THE
Rehearing or the disposition of
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Champaign County.
)
v. ) No. 20-CF-1145
)
DEMERIO M. HILSON, ) Honorable
) Roger B. Webber,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion.
Justices Welch and Vaughan concurred in the judgment and opinion.
OPINION
¶1 The defendant, Demerio M. Hilson, appeals his conviction and sentence, following a jury
trial in the circuit court of Champaign County, for being an armed habitual criminal. For the
following reasons, we affirm.
¶2 I. BACKGROUND
¶3 We recite only those facts necessary for an understanding of our disposition of this appeal.
On October 8, 2020, the defendant was charged, by information, with one count of attempted first
degree murder, one count of aggravated battery with a firearm, and one count of the offense of
being an armed habitual criminal. Count I alleged that on October 4, 2020, the defendant
committed the offense of attempted first degree murder when he shot Wyatt Blissit in the leg.
Count II alleged that on October 4, 2020, the defendant committed a battery with a firearm against
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Wyatt Blissit. Count III alleged that on October 7, 2020, the defendant committed the offense of
being an armed habitual criminal in that he
“knowingly possessed a firearm, namely a Smith and Wesson 40 caliber pistol, after having
previously been convicted of the offense of Manufacture or Delivery of a Controlled
Substance, a class 1 felony, in Champaign County cause number 06-CF-1836, and of the
offense of Manufacture or Delivery of a Controlled Substance, a class 2 felony, in
Champaign County cause number 08-CF-558.”
¶4 On February 9, 2021, the defendant filed a motion to sever count III, the offense of being
an armed habitual criminal, from counts I and II, the offenses involving Wyatt Blissit. The motion
to sever was granted, count III was tried alone by a jury, and the defendant’s appeal stems from
this charge alone.
¶5 On April 19, 2021, selection of the jury for the defendant’s trial began. Opening statements
were given on April 20, 2021. Immediately after opening statements were presented, the trial court
read the following stipulation to the jury: “That on October 7, 2020, the defendant, Demerio
Hilson, was a convicted felon, having been previously convicted of a combination of two or more
of the enumerated felonies set forth in 720 ILCS 5/24-1.7.”
¶6 Testimony began on April 20, 2021. The first witness to testify at the defendant’s jury trial
was James Hobson. He testified that he was employed by the Champaign Police Department and
had been since 2015. At the time of trial, he was working as a detective with the street crimes task
force, but on October 7, 2020, he was working as a uniformed officer in the patrol division.
¶7 Hobson testified that on October 7, 2020, at approximately 11:41 p.m. he was on duty, and
he observed a black Ford Taurus with its lights off near Northwood Street and McKinley Avenue
in Champaign. He testified that he was aware of an ongoing investigation involving a black Ford
Taurus that matched the vehicle he observed as well as Demerio Hilson. Hobson testified that after
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the Ford Taurus pulled into a private driveway, he pulled in behind it and turned on the emergency
lights on his squad car. He instructed the occupants of the Ford Taurus to stay in the car while he
waited for additional officers to arrive since it was a felony stop. Once additional officers arrived,
Hobson instructed the occupants of the vehicle to exit one at a time. Hobson testified that a female
was in the front passenger seat, was cooperative, and exited the car after being asked to.
¶8 Hobson testified that the defendant was in the driver’s seat of the Ford Taurus. Hobson
identified the defendant in court. Hobson testified that the defendant did not exit the car right away.
He stated:
“We gave him several commands to step out of the vehicle. He was adamant he didn’t want
to get out. He wanted us to approach him, but we didn’t feel that was safe to do so. So after
he refused to get out several times, we ended up calling the female out. And then once she
was out and detained in handcuffs, we then called him out again, and this time he eventually
did comply and get out.”
The defendant was detained after he exited the car, and other officers performed a cursory search
of the vehicle.
¶9 Hobson testified that Officer Nathanael Epling asked him to look under the driver’s seat of
the vehicle. Hobson observed a black handgun directly underneath the driver’s seat, and he
photographed it. Additionally, he photographed the car and the scene. Hobson was shown People’s
exhibits A1 through A14, which he identified as the photographs he took, and he testified that they
fairly and accurately depicted the black Ford Taurus, including the interior and the gun located
inside. The photographs were admitted into evidence, without objection, and published to the jury.
While the photographs were being shown to the jury, Hobson testified as follows regarding the
exhibits. He testified that exhibit A1 showed the black Ford Taurus that he pulled over in the
driveway. The other car that was next to it was already parked in the driveway, and it was
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unoccupied. Exhibits A2, A3, A4, and A5 showed the same car from different angles. Exhibit A6
showed the driver’s seat of the Ford Taurus. Exhibit A7 showed the back row of seats of the Ford
Taurus. Exhibit A8 showed the front passenger seat of the Ford Taurus where the female had been
seated. It also showed the center console, which was a solid piece of plastic, which prevented
access to beneath the driver’s seat from the passenger side. Exhibit A9 showed a close-up of the
driver’s seat and that it was a power seat that used an electric motor and controls to adjust the seat.
Exhibit A10 also showed a close-up of the driver’s seat and controls. It also showed that there is
no access from the rear passenger compartment to the area under the driver’s seat. Exhibit A11
showed the area under the driver’s seat that Hobson described as a “void.” A11 showed the void,
looking from the front of the driver’s seat to the back underneath the seat, and the black handgun.
Hobson testified the handgun had not been moved prior to taking the photograph.
¶ 10 Hobson testified that it was his responsibility to enter the handgun into evidence. He
testified that to enter the handgun into evidence he first photographed it, then he collected it, and
then he processed it for DNA evidence. He testified to process it for DNA he took the following
steps:
“So I use sterile cotton swabs. I use three of them. I have a small container, a plastic
container that contains distilled water. I would wet each of the cotton swabs. And then with
each swab, I would swab a different area of the handgun. Use one swab to swab the butt of
the magazine. I would use a second swab to swab the grip of the handgun. And then the
third swab, I would swab the front and rear sight as well as the slide and the trigger.”
Hobson testified that he put on rubber latex gloves after taking the photographs and then removed
the handgun and “swabbed the gun for DNA at the driver’s side of the vehicle.” He then placed
the swabs into separate cardboard boxes, which then go into paper evidence bags, and then those
are sent off to the state police lab.
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¶ 11 Hobson testified that exhibit A12 showed the handgun that was located under the driver’s
seat and identified it as a Smith & Wesson, SD40, a .40-caliber handgun. He testified that it was
loaded with a round in the chamber and a loaded magazine inserted into it. He was shown exhibit
A13, which showed the cardboard gun box that the handgun was placed into to preserve it and
send it to the lab. Exhibit A14 showed the outside of the cardboard gun box that was used to send
the recovered handgun to the Illinois State Police Forensic Science Laboratory. Hobson was shown
People’s exhibit G, which he identified as the actual box that he sent the handgun in to the state
police lab and the submission sticker with his name on it. He testified that the box looked the same
as the photograph he had viewed. Hobson opened the box, viewed the handgun, and testified that
it was in substantially the same condition at the time of trial as when he located it under the seat
on October 7, 2020. Exhibit G was admitted into evidence, and Hobson showed it to the jury. He
testified that the handgun was under the seat with the handle towards the front of the seat and the
barrel facing away from the steering wheel. Hobson testified this was the extent of his role in the
investigation.
¶ 12 On cross-examination, Hobson testified that he was wearing a body camera on October 7,
2020, and he activated it once he realized it was not turned on. He testified that he believed he
turned on the body camera after the occupants of the vehicle had been detained in handcuffs.
¶ 13 Hobson testified that when he exited his squad car, he drew his duty weapon and had it in
the high ready position, which involves holding the weapon high, but pointed down so that it is
not pointed at anyone. At this time, he was approximately 20 feet from the defendant, and he was
able to talk to him by raising his voice. Hobson wanted the defendant to exit the vehicle, and the
defendant wanted Hobson to come to the car.
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¶ 14 Hobson testified that an Illinois temporary registration was displayed on the rear of the
vehicle. He testified that he ran the registration at some point, but he did not recall who it came
back to as the owner.
¶ 15 The front seat passenger, Tylor Lattimore, exited the vehicle. She was not arrested, and no
one collected her fingerprints or DNA. After speaking to officers, she was released.
¶ 16 Once the defendant was taken into custody, the vehicle was towed to the Champaign Police
Department. Once it was there, the vehicle was further processed for evidence due to its reported
involvement in a separate investigation.
¶ 17 On redirect examination, Hobson testified that the entire incident was recorded by the
camera located in his squad car.
¶ 18 Nathanael Epling was the next witness to testify. He testified that he was a patrol officer
with the Champaign Police Department and had been since 2007. Epling testified that he was on
duty on October 7, 2020, at approximately 11:45 p.m. when he was called to 1205 Paula Drive for
an ongoing investigation. Upon arrival, Epling observed that Hobson had a black vehicle pulled
over in the driveway of the residence at 1205 Paula Drive. He testified that he assisted Hobson
with the removal of the occupants from the vehicle.
¶ 19 After the occupants had exited the vehicle, Epling conducted a quick search of the
passenger compartment of the vehicle. He testified that he began by looking at the driver’s seat
and that he did not locate anything in or above the driver’s seat, but he did see what he thought to
be a handgun under the driver’s seat. He notified Hobson of the handgun.
¶ 20 Epling was shown exhibit A9, which he confirmed was a photograph of the driver’s seat.
He was also shown exhibits A10 and A11, which depicted what he saw under the seat. Epling
testified he was using a flashlight in his left hand when he was looking in the vehicle. He testified
that he did not have to touch anything inside the vehicle to locate the handgun.
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¶ 21 Epling testified that to his knowledge, no one touched the handgun, other than Hobson
when he swabbed the handgun and collected it as evidence. The photographs show how it looked,
and it had not been altered or moved.
¶ 22 The only cross-examination of this witness was inquiring as to whether he wrote a report.
Epling testified that he did not write a report.
¶ 23 Corey Phenicie was the next witness to testify. He testified that he was a detective with the
Champaign Police Department and had been for approximately 13 years. Phenicie testified that he
was aware of Hobson stopping a black Ford Taurus on October 7, 2020, and his role was to
maintain the evidence that was collected as a result of that stop.
¶ 24 He testified that the swabs that were taken at the scene were packaged and kept at the
Champaign Police Department in accordance with evidentiary standards as well as the buccal swab
collected from the defendant. Phenicie testified regarding the process of collecting the buccal swab
from the defendant and then sending it to the crime lab.
¶ 25 He testified that, in this case, he sent to the crime lab the handgun that was placed into the
cardboard gun box, the swabs that were taken from the handgun, and the swabs from the defendant.
¶ 26 On cross-examination, Phenicie testified that he did not collect any DNA samples from
anyone else in this case.
¶ 27 The next witness was Kelly Maciejewski. Maciejewski testified that she is employed as a
forensic scientist for the Illinois State Police Forensic Science Laboratory in Springfield and had
been employed there since 2001. She testified that she specifically worked within the biology and
DNA section.
¶ 28 Maciejewski testified regarding her educational background and training. She has a
bachelor of arts degree in biology and English, a master of science in forensic science, and has
completed an approximately two year training program with the Illinois State Police specific to
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the areas of forensic biology and DNA testing. She testified that she works at the Illinois State
Police Forensic Science Laboratory in Springfield and that it is an accredited lab subject to
examination and accreditation every two years.
¶ 29 Maciejewski was tendered and accepted as an expert in biology and forensic DNA analysis.
Following the expert finding, the trial court read the following stipulation to the jury:
“The parties hereby stipulate as follows: At all times the below referenced exhibits
were handled as is required to maintain the evidentiary and forensic value of the exhibits
and were protected from tampering and contamination. The exhibits were sent to the
Illinois State Police Crime Laboratory to determine the presence or absence of DNA and
the donor of such DNA, if possible.
The duties of forensic scientists employed by the Illinois State Police include the
analysis of items submitted to the Illinois State Police Springfield Forensic Science
Laboratory to determine the presence or absence of DNA material on said items and to
determine, if possible, the donor of said DNA. People’s exhibits referenced below were
analyzed to determine the presence or absence of DNA and to identify the contributor of
that DNA, if possible.
As to People’s Exhibit G, a .40[-]caliber Smith & Wesson handgun, portions of the
gun were swabbed for the possible presence of DNA.
People’s Exhibit L1 is the DNA buccal swab obtained from inside of the
defendant’s mouth by Officer Cory Phenicie on February 11, 2021. This swab was used by
the forensic laboratory to compare with DNA samples recovered from Exhibit G, the
handgun.
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People’s Exhibit L2, a swab of the handgun grip, was tested and the mixture of
human DNA of at least three individuals was extracted by analyzing the sample. One major
male contributor was identified in the sample.
Kelly Maciejewski is a forensic scientist employed by the Illinois State Police. Her
duties include the analysis of items submitted to the Illinois State Police Springfield
Forensic Science Laboratory to determine the presence or absence of DNA material on said
items and to determine, if possible, the donor of said DNA. Based upon her education,
training, and experience, she would be qualified as an expert witness in the field of
Criminal Forensic DNA analysis. All procedures used in her analysis are generally
accepted in her field of expertise. She analyzed the DNA extractions from People’s L1 and
L2 to determine the presence or absence of DNA and to identify the contributor of the
DNA, if possible.
That concludes the stipulation, and you should consider that the same way that you
consider any other evidence admitted in this case.”
Following the stipulation, People’s exhibits L1 and L2 were admitted into evidence without any
objection.
¶ 30 Maciejewski explained DNA to the jury. She testified that
“DNA stands for deoxyribonucleic acid. And it’s essentially the building block of life. It’s
what distinguishes us from other animals. It’s what makes us all human. Most of our DNA
within our bodies is the same as each other; however, there are, of course differences, which
is what makes us unique from one another.”
She testified that DNA is in every cell within the body.
¶ 31 She testified that the lab has a multi-step procedure to analyze DNA. First, the DNA must
be extracted from the swab or item. The second step is quantitation to determine how much DNA
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was recovered. Third is amplification to make exact copies of the recovered DNA. The final step
is “DNA profiling, which is getting you the DNA profiled that you were able to recover from that
sample.” She testified that these processes are well-documented and accepted in the forensic
community.
¶ 32 Maciejewski testified as follows regarding degraded DNA:
“Q. So [DNA] can be found in an almost complete form but also degraded down to
where you can’t even recognize it; is that fair to say?
A. Yes. So DNA—and you may be familiar or not with it’s sort of shaped like a
ladder, like a twisted ladder, and so it’s in a long strand. And basically time, dirt, exposure
to environmental conditions, things like that can break the strand apart. And that just means
kind of chop it into bits, almost. And so the DNA is still there, it’s not changed. It’s just
that it is damaged or broken down.
So we test 23 areas of DNA. If you have a sample that is degraded or broken down
to some extent, you may not get all 23 areas. You may only get a portion of that, and that’s
due to degradation.”
¶ 33 Maciejewski testified that we are constantly shedding DNA because our skin contains cells,
so anytime you touch something, you leave behind DNA. DNA is also contained in our blood and
saliva. She testified that if someone picked up a pen, their DNA would be left behind. The DNA
on the pen could also degrade if dirt, or another person, touched the pen. She testified that if
multiple people have left behind DNA on an object, it can still be extracted and separated.
¶ 34 Maciejewski testified that she was assigned to a case involving the defendant. She testified
that her role was to conduct the DNA profiling between the buccal swab collected from the
defendant’s mouth and the results of the swabs collected from the handgun. She testified that in
this case, she determined that there was a mixture of DNA, from at least three individuals, present
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on the grip of the handgun. She testified that from the grip, there was one contributor that was
higher in concentration, so she was able to separate out that DNA profile for that major contributor
at 8 of the 23 locations. She compared this to the buccal swab and determined the defendant was
included as a possible contributor to that major DNA profile from the grip of the handgun.
Maciejewski testified that for this sample, for the eight-locus major contributor, you would see
that profile in approximately 1 in 450 billion individuals.
¶ 35 On cross-examination, Maciejewski testified that she could only say that the defendant was
included as a potential contributor of the major DNA profile, not specifically that it was his DNA.
On redirect examination, she testified,
“When I say [the defendant is] a possible contributor, I’m just saying that the types that I
have generated for the major profile, [the defendant] is included and has those same types.
I can’t tell you if it’s him or if it could potentially be someone else. The statistics speak for
that.”
¶ 36 Next, Hobson was recalled as a witness. He testified that the encounter with the defendant
was recorded by the camera in his squad car and confirmed that the video, People’s exhibit V1,
fairly and accurately depicted the interaction with the defendant. Exhibit V1 was admitted into
evidence without objection. The jury was then instructed that the video they were going to watch,
exhibit V1, had been edited due to pretrial rulings and that they should not be concerned about
what was not shown and only consider what is in the video. The State then rested its case.
¶ 37 The defendant then testified as a witness on his own behalf. He testified that when he was
stopped by police at the house on Paula Drive that he did not exit the vehicle like they wanted him
to because
“I was on the phone calling my cousin to let him know that I was getting pulled over. And
then the other reason, the female passenger was yelling hysterically about not getting out
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of the car, talking about they were gonna shoot me or—because when they got out, they
had their guns out. So I was a bit nervous myself.”
¶ 38 The defendant testified that his cousin, Caleb Hope, owned the vehicle he was in and that
Hope resided at the house on Paula Drive. The defendant testified that he had borrowed Hope’s
car to pick up his friend and that he was only supposed to have the car for about 20 to 30 minutes,
but he had kept it for a couple of hours.
¶ 39 The defendant testified that he did not inspect the car before driving it and did not know
there was a gun under the seat. He also testified that the gun under the seat was not his.
¶ 40 On cross-examination, the defendant was asked how his DNA was on the gun. He
responded, “I can’t explain. I have no idea.” He testified that he never possessed that gun. He also
stated, “Somehow it got on there. I don’t know if I dropped my phone under the seat—and reached
for it.”
¶ 41 The defendant testified that he borrowed the car to pick up a female friend. He testified
that he had blocked his cousin from calling him because he had kept the car longer than the 20 to
30 minutes he was to have it. He testified that he was just “riding around out in the country.” He
testified that he and his female passenger were drinking inside the car. He again testified he did
not know a gun was in the car.
¶ 42 The defense then rested. The defendant moved for a directed finding of acquittal, which
was denied. A jury instruction conference was then held. There were no objections made to
proposed instructions that are relevant to this appeal. The defendant did not tender any alternative
instructions.
¶ 43 Following closing arguments, the jury retired to deliberate at 2:27 p.m. At 3:07 p.m., the
trial court was back on the record, outside the presence of the jury, because the jury had submitted
the following question: “Are we deciding did he have possession of the gun at the time of arrest
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or any time before this arrest?” The following exchange took place between counsel and the trial
court:
“THE COURT: What are your thoughts? There is an IPI about the specific date,
but I don’t know that that really—
MR. LARSON: I don’t know that IPI off the top of my head, but if it can answer
their question, I think we all want to try to answer it so that we can go home at some point.
***
THE COURT: So 3.01—IPI 3.01 says, ‘The information states that the offense
charged was committed on October 7th, 2020. If you find the offense charged was
committed, the State is not required to prove that it was committed on the particular date
charged.’
MR. LARSON: Well, I would argue that we should give that to them because it
appears to answer their question.
THE COURT: Mr. Dedman?
MR. DEDMAN: It’s so true that it does, but shouldn’t I object? I object.
THE COURT: All right.
MR. DEDMAN: It does answer the question.
THE COURT: Do you want to elaborate on the objection or?
MR. DEDMAN: No. It’s just I feel like I should object because I don’t have—
THE COURT: All right. We’ll prepare that IPI—
MR. DEDMAN: I sense how this is going.
THE COURT:—and that will be the answer that we send back.”
¶ 44 The question was answered, and the jury continued deliberations. The jury thereafter found
the defendant guilty of being an armed habitual criminal.
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¶ 45 On June 17, 2021, the defendant was sentenced to serve 24 years in the Department of
Corrections, followed by 3 years of mandatory supervised release (MSR). The defendant filed his
timely notice of appeal on June 24, 2021.
¶ 46 The defendant filed a pro se motion to reconsider sentence on July 9, 2021. The defendant
was appointed counsel, and his amended motion to reconsider was filed on December 10, 2021.
On January 27, 2022, the amended motion to reconsider the sentence was heard and denied.
¶ 47 II. ANALYSIS
¶ 48 A. Sufficiency of the Evidence
¶ 49 On appeal, the defendant first contends that the evidence adduced at his jury trial was not
sufficient to sustain his conviction of being an armed habitual criminal. To sustain a conviction for
the offense of being an armed habitual criminal, the State must prove that the defendant knowingly
possessed a firearm after having been convicted two or more times of a qualifying offense. 720
ILCS 5/24-1.7 (West 2020). On appeal, the defendant only contests the element of whether he
knowingly possessed a firearm.
¶ 50 When a defendant makes a claim that there was insufficient evidence to sustain his
conviction, this court reviews the evidence presented at trial in the light most favorable to the
prosecution to determine whether any rational trier of fact could have found beyond a reasonable
doubt the essential elements of the crime or crimes of which the defendant was convicted. See,
e.g., People v. Saxon, 374 Ill. App. 3d 409, 416 (2007). We will not reverse a criminal conviction
unless the evidence presented at trial is so improbable or unsatisfactory as to justify a reasonable
doubt as to the guilt of the defendant. Id. We allow all reasonable inferences from the record in
favor of the prosecution, whether the evidence in the case is direct or circumstantial. Id.¶ 51 There is no requirement that this court disregard inferences that flow from the evidence or
that this court search out all possible explanations consistent with innocence and raise them to a
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level of reasonable doubt. Id. at 416-17. We do not retry the defendant, instead leaving it to the
trier of fact to judge the credibility of witnesses, resolve conflicts in the evidence, and draw
reasonable inferences based upon all of the evidence properly before the trier of fact. Id. at 416.
¶ 52 In this case, the defendant posits that the State failed to prove beyond a reasonable doubt
that he “knowingly” possessed the firearm recovered from the vehicle he was driving. He contends,
inter alia, that the gun was concealed beneath the driver’s seat of a car that he did not own. Further,
he argues that none of the police officers testified that the defendant ever had the gun on his person
or saw him place the gun under the seat or make any furtive movements. Defendant alleges that
he never gave any statement indicating that he knew the gun was under the seat. Additionally, the
defendant contends that while the DNA evidence found on the gun could not exclude him as a
possible contributor, he asserts there was no evidence presented of when the DNA was transferred
to the gun. As such, the defendant argues that under these circumstances, no rational trier of fact
could conclude that the State proved that the defendant knowingly possessed the gun.
¶ 53 In its brief on appeal with regard to this issue, the State counters that the defendant was
stopped as part of a separate investigation into both the defendant and the car. The defendant failed
to keep his hands out of the window and in view of the police officer and refused to exit the vehicle
after being instructed to do so. After defendant exited the vehicle, a black handgun was found
under the driver’s seat with the handle of the gun, or grip, facing toward the steering wheel.
Additionally, the location under the driver’s seat where the gun was located was inaccessible from
both the front seat passenger seat and rear passenger compartment. The gun was swabbed for DNA,
and the results from the grip of the gun revealed the defendant was a major contributor of DNA at
8 of 23 locations. The defendant’s DNA profile found at eight locations would only be seen in 1
in 450 billion individuals. The State notes that possession of a firearm may be actual or
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constructive and that in this case there was sufficient evidence to establish both actual possession
and constructive possession.
¶ 54 In his reply brief, the defendant argues that the State did not prove constructive possession
because there was no evidence of control or knowledge. Additionally, he contends that actual
possession was also not established.
¶ 55 As explained above, when reviewing a claim such as that made by the defendant in this
appeal, this court allows all reasonable inferences from the record in favor of the prosecution,
whether the evidence in the case is direct or circumstantial, and will not disregard such reasonable
inferences that flow from the evidence. See, e.g., id. at 416-17. Moreover, we (1) do not retry the
defendant, instead leaving it to the trier of fact to judge the credibility of witnesses, resolve
conflicts in the evidence, and draw reasonable inferences based upon all of the evidence properly
before the trier of fact, and (2) will not search out all possible explanations consistent with
innocence and raise them to a level of reasonable doubt (see id.), both of which are exactly what
the defendant asks us to do in this appeal.
¶ 56 Knowledge is a question of fact for the trier of fact to decide. People v. Monteleone, 2018
IL App (2d) 170150, ¶ 26. “Direct proof of a defendant’s knowledge is unnecessary, and a
defendant’s knowledge can be inferred from the surrounding facts and circumstances.” Id.“Knowledge may be, and ordinarily is, proven circumstantially.” People v. Ortiz, 196 Ill. 2d 236,
260 (2001).
¶ 57 “Circumstantial evidence is proof of facts or circumstances that give rise to reasonable
inferences of other facts that tend to establish guilt or innocence of the defendant.” Saxon, 374 Ill.
App. 3d at 417. It is axiomatic that “[a] defendant can be convicted solely on circumstantial
evidence” and that “[t]he trier of fact does not have to be satisfied beyond a reasonable doubt as
to each link in the chain of circumstantial evidence.” Id.
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¶ 58 Possession of a firearm may be actual or constructive. People v. Ingram, 389 Ill. App. 3d
897, 899 (2009).
“Actual possession is the exercise by the defendant of present personal dominion over the
illicit material [citation] and exists when an individual exercises immediate and exclusive
dominion or control over the illicit material [citation]. Actual possession does not require
present personal touching of the illicit material but, rather, present personal dominion over
it. [Citation.] *** Where possession has been shown, an inference of guilty knowledge can
be drawn from the surrounding facts and circumstances. [Citation.] The fact of possession
must be shown beyond a reasonable doubt. [Citation.]” People v. Schmalz, 194 Ill. 2d 75,
82 (2000).
“Constructive possession exists where there is no actual, personal, present dominion over
contraband, but defendant had knowledge of the presence of the contraband, and had control over
the area where the contraband was found.” People v. Hunter, 2013 IL 114100, ¶ 19.
¶ 59 The evidence that was presented to the jury is described in detail above and speaks for
itself. When viewed in the light most favorable to the prosecution, that evidence was sufficient,
beyond a reasonable doubt, to sustain the conviction on appeal. The gun was found under the
driver’s seat of a vehicle the defendant had been driving for hours while drinking. The gun’s
location made it only accessible to the driver. DNA evidence from the grip of the gun revealed that
the defendant was a major contributor to the DNA mixture at eight locations, and the defendant’s
DNA profile would only be seen in 1 in 450 billion individuals. Viewing this evidence in the light
most favorable to the prosecution, the evidence showed that the defendant exercised immediate
and exclusive dominion and control over the gun. Additionally, the defendant’s actions in refusing
to exit the vehicle when instructed to do so and failing to keep his hands out of the window show
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consciousness of guilt. For all of these reasons, we find there was sufficient evidence to prove
beyond a reasonable doubt that the defendant knowingly possessed the handgun.
¶ 60 B. Jury Instructions
¶ 61 The defendant’s second contention on appeal is that the trial court erred in providing
Illinois Pattern Jury Instructions, Criminal, No. 3.01 (approved Oct. 17, 2014) (hereinafter IPI
Criminal No. 3.01) to answer a question from the jury. The defendant argues that the language of
IPI Criminal No. 3.01 is contrary to the language of the armed habitual criminal statute. The
defendant concedes that this issue was not raised in the posttrial motion and asks this court to
consider the purported error under the plain error rule. Additionally, the defendant alleges defense
counsel was ineffective for failing to preserve this issue for appeal.
¶ 62 In response, the State argues that IPI Criminal No. 3.01 was a correct statement of the law
that answered the jury’s question. Additionally, the State claims the instructions, when taken as a
whole, fairly and fully informed the jury of the relevant law.
¶ 63 In this case, there is no allegation that the jury instructions given prior to the jury beginning
its deliberations were in error. The alleged error stems from the trial court’s answer to a jury
question. The jury asked, “Are we deciding did he have possession of the gun at the time of arrest
or any time before this arrest?”
¶ 64 “[T]he general rule is that the trial court has a duty to provide instruction to the jury where
it has posed an explicit question or requested clarification on a point of law arising from facts about
which there is doubt or confusion.” People v. Childs, 159 Ill. 2d 217, 228-29 (1994). In response
to the question, the trial court provided IPI Criminal No. 3.01 to the jury: “The information states
that the offense charged was committed on October 7, 2020. If you find the offense charged was
committed, the State is not required to prove that it was committed on the particular date charged.”
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¶ 65 The jury was previously instructed that “[a] person commits the offense of being an armed
habitual criminal when he knowingly possesses any firearm after having been convicted of a
combination of two or more felonies set forth in 720 ILCS 5/24-1.7.” Additionally, the issues
instruction stated:
“To sustain the charge of being an armed habitual criminal, the State must prove the
following propositions:
First Proposition: That the defendant possessed any firearm; and
Second Proposition: That the defendant had previously been convicted of a
combination of two or more of the felonies as set forth in 720 ILCS 5/24-1.7.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the defendant
guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the defendant
not guilty.”
¶ 66 The defendant argues that his case is analogous to the recent Illinois Supreme Court case
of People v. Hartfield, 2022 IL 126729. In Hartfield, a mid-deliberation instruction to the jury
conflicted with the previous instructions that had been given. The jury was originally instructed:
“ ‘A person commits the offense of aggravated discharge of a firearm when he knowing[ly]
discharges a firearm in the direction of a person he knows to be a peace officer, while the officer
is engaged in the execution of his official duties.’ ” Id. ¶ 18. The following question was sent out
during deliberations, “ ‘Does suspect need to know there were 4 cops on the scene in the area
where gun was fired [followed here by what appears to be a question mark, perhaps scribbled out]
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to be guilty of all four counts of [aggravated] discharge of firearm?’ ” Id. ¶ 20. The response that
was sent to the jury stated:
“ ‘Question #1
No
Question # 2
You must determine based on the evidence which officer or officers, if any, may
have been in the line of fire when the firearm was discharged.’ ” Id. ¶ 22.
On review, it was determined that the answer was legally incorrect.
¶ 67 Additionally, in Hartfield, the defendant failed to preserve the issue for review, so it was
reviewed for plain error. Our supreme court concluded that the mid-deliberation instruction was
not an accurate statement of the law and held that the error was presumed prejudicial. “[T]wo
directly conflicting instructions on an essential element, one stating the law correctly and the other
erroneously, cannot be cured this way due to the simple fact that we can never know which
instruction the jury was following.” Id. ¶ 59.
¶ 68 Our supreme court also considered a similar issue in an even more recent case in People v.
Woods, 2023 IL 127794. We find the defendant’s case is more analogous to that of Woods. The
Woods court explained: “In line with Hartfield, we conclude that directly conflicting instructions
may be harmless when they do not concern a disputed essential issue in the case so that there is
not a fear that the jury relied on the incorrect instruction.” Id. ¶ 54.
¶ 69 In the present action, the alleged conflicting instructions dealt with the timing of the alleged
offense and whether it was after the requisite prior felony convictions. The defendant stipulated to
the following in this case: “That on October 7, 2020, the defendant, Demerio Hilson, was a
convicted felon, having been previously convicted of a combination of two or more of the
enumerated felonies set forth in 720 ILCS 5/24-1.7.” The trial court took judicial notice of the files
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in the prior cases. The defendant’s predicate felony convictions occurred in 2007 and 2008. As a
result of this stipulation, there is no dispute about whether the defendant had been previously
convicted of a combination of two or more felonies as set forth in section 24-1.7 of the Criminal
Code of 2012 (720 ILCS 5/24-1.7 (West 2020)). Accordingly, the alleged erroneous conflicting
jury instruction would not be presumed prejudicial and may be harmless. Woods, 2023 IL 127794,
¶ 55.
¶ 70 The question of whether the jury instructions accurately conveyed the applicable law to the
jury is reviewed de novo. People v. Pierce, 226 Ill. 2d 470, 475 (2007). Jury instructions are used
to give the jurors the applicable law so they can apply it to the facts and reach a correct conclusion.
People v. Hopp, 209 Ill. 2d 1, 7 (2004). “Jury instructions should not be misleading or confusing
[citation], but their correctness depends upon not whether defense counsel can imagine a
problematic meaning, but whether ordinary persons acting as jurors would fail to understand
them.” People v. Herron, 215 Ill. 2d 167, 187-88 (2005). “The task of a reviewing court is to
determine whether the instructions, considered together, fully and fairly announce the law
applicable to the theories of the State and the defense.” People v. Mohr, 228 Ill. 2d 53, 65 (2008).
“Jury instructions should be construed as a whole, rather than read in isolation.” People v. Parker,
223 Ill. 2d 494, 501 (2006).
¶ 71 In this case, prior to deliberations, the jury was instructed that “[a] person commits the
offense of being an armed habitual criminal when he knowingly possesses any firearm after having
been convicted of a combination of two or more felonies set forth in 720 ILCS 5/24-1.7.” (Emphasis
added.) Additionally, the jury was instructed:
“To sustain the charge of being an armed habitual criminal, the State must prove the
following propositions:
First Proposition: That the defendant possessed any firearm; and
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Second Proposition: That the defendant had previously been convicted of a
combination of two or more of the felonies as set forth in 720 ILCS 5/24-1.7.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the defendant
guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the defendant
not guilty.” (Emphasis added.)
The instruction provided in response to the jury’s question stated: “The information states that the
offense charged was committed on October 7, 2020. If you find the offense charged was committed,
the State is not required to prove that it was committed on the particular date charged.” (Emphasis
added.)
¶ 72 When these instructions are reviewed as a whole, we find that no error occurred. The
response to the jury’s question still required the jury to find that the offense charged was
committed. For the offense charged to have been committed, it was a prerequisite that the
defendant have the two prior felony convictions—a matter that was stipulated to in this trial.
¶ 73 Assuming arguendo, that the response to the jury’s question was in error and in conflict
with the earlier instructions, said error would be harmless. “Instructional errors are reviewed under
a harmless error, not a reasonable doubt, analysis.” People v. Dennis, 181 Ill. 2d 87, 95 (1998).
“An error in a jury instruction is harmless if it is demonstrated that the result of the trial would not
have been different had the jury been properly instructed.” People v. Pomykala, 203 Ill. 2d 198,
210 (2003). “Where the evidence of guilt is clear and convincing, an instructional error may be
deemed harmless.” Dennis, 181 Ill. 2d at 95.
22
¶ 74 In this case, had the jury been instructed by the response to their question, that while the
State was not required to prove that defendant committed the charged offense on October 7, 2020,
so long as the offense charged was committed after defendant’s second felony conviction in 2008,
would the outcome of the trial have been different? We find that the outcome would have been the
same, and as such, the error was harmless. The stipulation agreed to by the defendant established
that the defendant was a convicted felon, having been previously convicted of a combination of
two or more of the enumerated felonies set forth in section 24-1.7 of the Criminal Code of 2012
(720 ILCS 5/24-1.7 (West 2020)). The defendant did not expressly state that he was being tried
for an alleged possession of a firearm prior to 2008, 12 years before the charged offense; however,
that is what his present argument implies, and such is absurd.
¶ 75 As an alternative theory, the defendant contends that if the alleged jury instruction error
was not plain error, we should find that the defendant’s trial counsel was ineffective for failing to
preserve the issue for review. We review a claim of ineffective assistance of counsel de novo.
People v. Hale, 2013 IL 113140, ¶ 15.
¶ 76 Allegations of ineffective assistance of counsel are reviewed pursuant to the standards set
forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Cathey, 2012 IL 111746, ¶ 23.
To prevail on a claim of ineffective assistance of counsel, “[t]he defendant must show that there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Moreover, to succeed on such a claim, a
defendant must demonstrate both that counsel’s performance fell below an objective standard of
reasonableness and that counsel’s deficient performance resulted in prejudice. Id. at 687-88.
¶ 77 “Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010). The defendant’s failure to satisfy either the deficiency prong or the prejudice
23
prong of the Strickland test precludes a finding of ineffective assistance of counsel. Strickland,
466 U.S. at 697. “In order to satisfy the deficient-performance prong of Strickland, a defendant
must show that his counsel’s performance was so inadequate that counsel was not functioning as
the ‘counsel’ guaranteed by the sixth amendment. Counsel’s performance is measured by an
objective standard of competence under prevailing professional norms.” (Internal quotation marks
omitted.) People v. Manning, 241 Ill. 2d 319, 326-27 (2011).
¶ 78 As set forth above, we find that there was no error in the jury instructions that the defendant
is now claiming resulted in ineffective assistance of counsel. Accordingly, the defendant is unable
to establish that his counsel was objectively deficient.
¶ 79 Further, the defendant would be unable to establish the prejudice prong. With respect to
the prejudice prong, “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the judgment.”
Strickland, 466 U.S. at 691. Errors by counsel “come in an infinite variety and are as likely to be
utterly harmless in a particular case as they are to be prejudicial.” Id. at 693. “In assessing prejudice
under Strickland, the question is not whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable doubt might have been established if
counsel acted differently.” Harrington v. Richter, 562 U.S. 86, 111 (2011). Rather, “Strickland
asks whether it is ‘reasonably likely’ the result would have been different.” Id. Like the matter
before us, when “a defendant challenges a conviction, the question is whether there is a reasonable
probability that, absent the errors, the factfinder would have had a reasonable doubt respecting
guilt.” Strickland, 466 U.S. at 695.
¶ 80 As discussed above, if the alleged errors had not occurred, the result would have been the
same. The timing of defendant’s prior felony convictions was not at issue.
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¶ 81 C. Amended MSR Statute
¶ 82 The defendant’s final contention on appeal is that his MSR should be reduced from 3 years
to 18 months due to an amendment to the statute that reduced the MSR term for some Class X
felonies, including the one for which the defendant was convicted, from 3 years to 18 months. Pub.
Act 101-652 (eff. July 1, 2021) (amending 730 ILCS 5/5-8-1(d)(1.5)). The defendant argues that
his sentence was not final because of a pending motion to reconsider sentence.
¶ 83 The State argues that the defendant received a final sentence on June 17, 2021. The State
contends that because the defendant was sentenced prior to the effective date of the amendment, it
does not apply to his MSR.
¶ 84 Whether a statute applies to a defendant is a legal question reviewed de novo. People v.
Cardamone, 232 Ill. 2d 504, 511 (2009). The relevant portions of the amended statute provide as
follows:
“(d) Subject to earlier termination under Section 3-3-8, the parole or mandatory
supervised release term shall be written as part of the sentencing order and shall be as
follows:
***
(1.5) except as provided in paragraph (7) of this subsection (d), for a Class
X felony ***, if committed on or after January 1, 2009, 18 months;
***
(g) Notwithstanding any other provisions of this Act and of Public Act 101-652:
*** (ii) the provisions of paragraphs (1.5) and (2) of subsection (d) are effective on July 1,
2021 and shall apply to all individuals convicted on or after the effective date of paragraphs
(1.5) and (2) of subsection (d).” 730 ILCS 5/5-8-1(d), (g) (West Supp. 2021).
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¶ 85 TheIllinois Supreme Court has adopted the United States Supreme Court’s retroactivity
analysis set forth in Landgraf v. USI Film Products, 511 U.S. 244 (1994). Commonwealth Edison
Co. v. Will County Collector, 196 Ill. 2d 27, 38-39 (2001). “Under the Landgraf test, if the
legislature has clearly indicated what the temporal reach of an amended statute should be, then,
absent a constitutional prohibition, that expression of legislative intent must be given effect.” Id.
at 38. The Illinois Supreme Court later clarified:
“[B]ecause of the existence of section 4 of the Statute on Statutes [citation], application of
the Landgraf test in Illinois would ‘prove uneventful.’ [Citation.] Section 4 is a general
savings clause, which [the Illinois Supreme Court] has interpreted as meaning that
procedural changes to statutes will be applied retroactively, while substantive changes are
prospective only.” People ex rel. Alvarez v. Howard, 2016 IL 120729, ¶ 20.
¶ 86 Section 4 of the Statute on Statutes states as follows:
“No new law shall be construed to repeal a former law, whether such former law is
expressly repealed or not, as to any offense committed against the former law, or as to any
act done, any penalty, forfeiture or punishment incurred, or any right accrued, or claim
arising under the former law, or in any way whatever to affect any such offense or act so
committed or done, or any penalty, forfeiture or punishment so incurred, or any right
accrued, or claim arising before the new law takes effect, save only that the proceedings
thereafter shall conform, so far as practicable, to the laws in force at the time of such
proceeding. If any penalty, forfeiture or punishment be mitigated by any provisions of a
new law, such provision may, by the consent of the party affected, be applied to any
judgment pronounced after the new law takes effect. This section shall extend to all repeals,
either by express words or by implication, whether the repeal is in the act making any new
26
provision upon the same subject or in any other act.” (Emphasis added.) 5 ILCS 70/4 (West
2020).
¶ 87 The portion of section 4 emphasized above is a specific provision regarding the
applicability of new laws that mitigate a penalty or punishment. The Illinois Supreme Court in
People v. Hunter, 2017 IL 121306, ¶¶ 52-54, found that whether statutory changes were “properly
labeled ‘procedural’ or ‘substantive,’ ” the above language from section 4 meant that if the changes
mitigated a punishment, they could not be applied to defendants who were sentenced prior to the
effective date of the statute. This is based on longstanding precedent. In People v. Hansen, 28 Ill.
2d 322 (1963), “the defendant was not entitled to be resentenced under the new criminal code,
which went into effect just 13 days after he was sentenced, because, under section 4, ‘a punishment
mitigated by a new law is applicable only to judgments after the new law takes effect.’ ” Hunter,
2017 IL 121306, ¶ 54 (quoting Hansen, 28 Ill. 2d at 340-41). In People v. Lisle, 390 Ill. 327, 328
(1945), the court found that section 4 “does not give the defendant the right to be sentenced under
a law not in full force and effect at the time of his sentence.”
¶ 88 In this case, the jury found the defendant guilty of being an armed habitual criminal on
April 20, 2021. On June 17, 2021, 13 days prior to the amended statute taking effect, the defendant
was sentenced to serve 24 years in the Department of Corrections, followed by 3 years of MSR.
Defendant filed a pro se motion to reconsider sentence on July 9, 2021. Defendant was appointed
counsel, and his amended motion to reconsider was filed on December 10, 2021. On January 27,
2022, the amended motion to reconsider the sentence was heard and denied.
¶ 89 Like the court in People v. Brown, 2023 IL App (4th) 220400, ¶ 44, we find that supreme
court case authority refutes the defendant’s argument that there was no final judgment until his
posttrial motion was ruled on. The supreme court has “consistently held that ‘ “[t]he final judgment
in a criminal case is the sentence.” ’ ” People v. Walls, 2022 IL 127965, ¶ 23 (quoting People v.
27
Abdullah, 2019 IL 123492, ¶ 19, quoting People v. Caballero, 102 Ill. 2d 23, 51 (1984)). As such,
the date of the defendant’s final judgment in this case was the date he was sentenced, June 17,
2021. Accordingly, he was not entitled to have the new version of the statute applied to his case.
¶ 90 III. CONCLUSION
¶ 91 For the foregoing reasons, we affirm the defendant’s conviction and sentence.
¶ 92 Affirmed.
28
People v. Hilson, 2023 IL App (5th) 220047Decision Under Review: Appeal from the Circuit Court of Champaign County, No. 20-CF-
1145; the Hon. Roger B. Webber, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Emily E. Filpi, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, Edward
for R. Psenicka, and Pamela S. Wells, of State’s Attorneys Appellate
Appellee: Prosecutor’s Office, of counsel), for the People.
29