People v. Clifton, 2019 IL App (1st) 151967 (April). Episode 633 (Duration 7:31)
Lay witness testified about the details of the gun that he saw.Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
Charges & Sentence
Defendant was found guilty of armed robbery and sentenced to 35 years in prison (20 years for the underlying offense and 15 years for the mandatory firearm add-on).
2 men walked up to a group of 4 people (1 man & 3 women) and rob them.
One man said “you know what this is, it’s a robbery” and then pointed a gun at them. The man pointed the gun as close as one inch from one of the victim’s face.
The man took two phones from the victim’s pants pocket. The other man took items from the women. The men then got into a Jeep and drove away.
Armed robbery requires taking “property *** from the person or presence of another by the use of force or by threatening the imminent use of force” and doing so “armed with a firearm.” 720 ILCS 5/18-1(a) (definition of robbery); 720 ILCS 5/18-2(a)(2) (armed robbery).
A violation of subsection (a)(2) carries a mandatory 15-year sentencing enhancement. 720 ILCS 5/18-2(b).
For the purposes of the armed robbery statute, we derive the definition of “firearm” from the FOID Card Act. 720 ILCS 5/2-7.5 (referring to 430 ILCS 65/1.1).
The FOID Card Act defines “firearm” as “any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas” and exempts many types of guns including pneumatic guns, spring guns, paintball guns, BB guns, signal guns, and antique guns. 430 ILCS 65/1.1.
We can rely on the eyewitness testimony of a single witness, but that testimony must provide sufficient facts to allow one to objectively conclude that the object used in the robbery meets the statutory definition of a firearm.
Sufficiency Of The Evidence To Prove Armed Robbery
See People v. Washington, 2012 IL 107993 and People v. Malone, 2012 IL App (1st) 110517.
Before January 1, 2000, the armed robbery statute had one requirement: a defendant commits robbery while he or she carried, or was otherwise armed with, a dangerous weapon. See Pub. Act 91-404, § 5 (eff. Jan. 1, 2000) (amending 720 ILCS 5/18-2). The amendment left the requirement of a dangerous weapon in place but made separate categories allowing for sentencing enhancements when a defendant possesses or uses a “firearm” in the course of a robbery. Pub. Act 91-404, § 5 (eff. Jan. 1, 2000); see also 720 ILCS 5/18- 2(a)(1)-(4) (West 2012). See also People v. Ross, 229 Ill. 2d 255, 277 (2008).
The decisions in Wright and Malone analyze the sufficiency of the evidence to prove armed robbery under the current statute.
A different panel in this division called Ross into question in People v. Fields, 2017 IL App (1st) 110311-B, on which the State relies. We respectfully disagree and find that cases analyzing the preamendment armed robbery statute remain just as precedential after amendment.
Under The Old Armed Robbery
In Ross, our supreme court defined “dangerous weapon” broadly, allowing proof that the weapon used be either
(i) Dangerous per se, as is a loaded gun;
(ii) Not necessarily dangerous but actually used in a dangerous manner; or
(iii) Not necessarily dangerous but capable of use in a dangerous manner.
Under The New Armed Robbery
By amending the armed robbery statute to require the presence of a “firearm,” the General Assembly narrowed the scope of the offense by virtue of the Criminal Code’s crossreference to the FOID Card Act’s stringent definition of firearms.
The State needs to rely on more than the common sense notion that a firearm is dangerous because it is capable of being used dangerously; the State must prove that the object wielded during a robbery “is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012).
The legislature then struck the balance by automatically increasing a defendant’s sentence by 15 years when the State meets its heavy burden of proving the presence of a “firearm.” 720 ILCS 5/18-2(b) (West 2012). So the state has a higher burden but they get more out of it.
Ross and Malone, and other cases interpreting the preamendment armed robbery statute, still apply. What has changed is what the state must prove.
Turning to this case we see this victim was very specific.
He testified that the gun was black, a revolver, and either a .32 or .38 caliber. He had personally observed .32-caliber guns before. And, he testified that the gun was within one inch of his face. This was a high level of specificity like that in Wright. The witness testified about the color of the gun and explained that he had experience firing the exact type of gun he believed was used. Wright, 2017 IL 119561, ¶ 76.
Plus, the witness felt the gun and described “something sharp” being pressed into his back. Id. All of his observations led him to be “100% sure” that the weapon was “an actual firearm.” Id. Looking at the objective evidence provided by the victim in this case compared to the testimony of the victim in Wright, we find sufficient evidence that the nature of the firearm was proven beyond a reasonable doubt.
Do You Need A Gun To Prove The Existence of A Gun?
Illinois courts hold that the State need not present physical evidence of a gun to establish the presence or use of a firearm. People v. Jackson, 2016 IL App (1st) 141448, ¶ 15 (citing Washington, 2012 IL 107993, ¶ 36).
Absent some physical evidence, it seems almost impossible to prove that an item alleged to be a firearm meets the technical statutory definition unless fired. The FOID Card Act’s definition of “firearm” requires the object to expel a projectile “by the action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2012). No lay witness would ever be able to testify to this feature unless the gun was fired or the witness somehow had an opportunity to examine the gun.
As Clifton suggests, the act exempts BB guns and other guns that “expel[ ] a single globular projectile not exceeding .18 inch in diameter.” Id.
Again, no lay witness would be able to confirm that the object brandished met this definition without examining the ammunition or seeing the weapon fired. As the court indicated in McLaurin, and as the facts establish here, armed robberies pose a pernicious possibility that an offender will use a firearm (or even an object that looks like one) to force compliance with the robbery.
Technically No But…
This court sustained the armed robbery without the gun.
But there is a strong suggestion that if the gun evidence is light or whimsical the state may have a problem.
The General Assembly has already accounted for that possibility with the aggravated robbery statute.
Aggravated robbery involves taking property from the person or presence of another, “while indicating verbally or by his or her actions to the victim that he or she is presently armed with a firearm ***. This offense shall be applicable even though it is later determined that he or she had no firearm ***.” 720 ILCS 5/18-1(b)(1) (West 2012).
The General Assembly has addressed concerns like those expressed in McLaurin by creating an offense punishing an offender who attempts to coerce compliance by implying he or she has a firearm. While precedent compels us to affirm defendants’s conviction, it appears the aggravated robbery statute more aptly describes this defendant’s conduct.
The FOID Card Act contains highly technical definitions and exemptions for “firearms.” Those technical definitions have been imported wholesale into the Criminal Code for any offense that punishes the use or possession of a “firearm.” It appears the General Assembly has crafted a careful balance, requiring the State to prove the technical presence of a firearm but allowing a much greater punishment should they be successful.
We are troubled by the cases that allow for proof of a firearm with testimony that does not come close to describing the technical features of a firearm outlined in the FOID Card Act, but our supreme court has expressly approved of that type of testimony. Indeed, our supreme court has condoned convictions for armed robbery with far less specific testimony than is present here.
So we affirm defendant’s conviction.
Episode 634 –People v. McLaurin, 2018 IL App (1st) 170258 (December) (officer testified about seeing a gun from 50 feet away)
People v. McLaurin
Both the majority and concurrence in People v. McLaurin, 2018 IL App (1st) 170258, provide assistance.
In McLaurin, the criminal offense, armed habitual criminal, also requires proof that the defendant possessed a “firearm” as defined in the FOID Card Act. Id. ¶¶ 1, 20-21. The court found the evidence insufficient to prove the defendant’s possession of a “firearm” because the sole witness to see him with the gun, a police officer, testified that she saw what appeared to be a gun but could only provide details about color because all she observed was the handle and the barrel. Id. ¶ 26.
The majority in McLaurin distinguished armed robbery cases on the ground that “the underlying offense is robbery” and, to prove robbery, “there is no requirement to prove that a firearm was used in the taking.” Id. ¶ 24.
The majority, thus, found that use of a firearm during a robbery to be an “aggravating factor” and, as a result, the State had more leeway to prove the presence of a firearm by circumstantial evidence. Id. To the extent the McLaurin majority has implied a different standard of proof applies to a “firearm” in robbery cases as opposed to possession cases, we disagree.
Instead, we adopt the approach of the special concurrence. See id. ¶¶ 33-36 (Mikva, J. specially concurring). The presence of a firearm undoubtedly presents more than an “aggravating factor” under subsection (a)(2) of the armed robbery statute; indeed, the State must prove it beyond a reasonable doubt. Id. ¶ 34; see also Wright, 2017 IL 119561 ¶¶ 70- 71.
While true that the State may be able to prove a firearm by different types of circumstantial evidence in an armed robbery case than in a possession case (McLaurin, 2018 IL App (1st) 170258 ¶ 24; see also id. ¶ 34 (Mikva, J. specially concurring)), the same definition of “firearm” applies in both the robbery and the possession contexts. Again, we find Clifton’s case distinguishable from McLaurin.
The witness in McLaurin could only see the color of the gun and saw it from 50 feet away. Id. ¶ 26 (majority opinion). Smith testified to the color as well as the type of gun and caliber. And, the gun was an inch or so from Smith’s face, giving him a substantially better opportunity to observe the gun up close than the officer in McLaurin.
Long-standing precedent allowing proof of a “firearm” based on the testimony of a single lay witness, coupled with the testimony actually elicited, compel our conclusion.