People v. Brown, 2017 IL App (1st) 150146 (May). Episode 377 (Duration 8:07)
Attempt armed robbery is a per se forcible felony.
Following a bench trial, defendant Dewayne Brown was convicted of the offense of armed habitual criminal. He was sentenced to 8 years’ imprisonment.
Officers are drawn to a parking lot when a car alarm goes off.
In the lot they find defendant and his girlfriend smoking a blunt in their own car. Defendant gets out of his car, but is immediately handcuffed. Inside the car there was a purse. The purse was open, and the handle of a handgun was “sticking out” in “plain view.”
The officer testified that he recovered the weapon, which turned out to be a Highpoint “black 45-caliber semiautomatic handgun.” The gun was loaded and “contained one round in the chamber and seven in the magazine.”
He Fesses Up
Defendant immediately “stated that the weapon was his” and explained that he had put the handgun into Fain’s purse.
On the way to the station, defendant stated that he wanted to apologize to Fain for placing his gun in her purse. Later at the police station defendant explained where and how he purchased the weapon. Defendant had no FOID card.
The State also entered into evidence certified copies of defendant’s prior convictions, including
a 1998 conviction for attempted armed robbery,
a 2006 robbery conviction, and
a 2012 possession of a controlled substance conviction.
Defendant first challenges the sufficiency of the evidence.
Specifically, he argues that the State failed to prove beyond a reasonable doubt that his prior conviction for attempted armed robbery was a forcible felony sufficient to satisfy the elements of the offense of armed habitual criminal.
Accordingly, because the State simply presented certified copies of his convictions and did not detail the circumstances surrounding his attempted armed robbery conviction, defendant argues that there was insufficient evidence that his crime involved the use or threat of force against another individual.
He submits that attempted armed robbery is not inherently a forcible felony and that the State failed to present any specific details pertaining to his attempted armed robbery conviction to establish that the offense “involved any kind of use or threat of physical force or violence,” such that it could be categorized as a forcible felony.
Armed Habitual Criminal
Section 24-1.7 of the Illinois Criminal Code of 2012 (Criminal Code or Code) sets forth the offense of armed habitual criminal and provides, in pertinent part, as follows:
“(a) A person commits the offense of being an armed habitual criminal if he or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2 or more times of any combination of the following offenses: (1) A forcible felony as defined in Section 2-8 of this Code[.]”
“‘Forcible felony’ means treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement and any other felony which involves the use or threat of physical force or violence against any individual.”
The “Residual Clause”
Where, as here, an offense is not one of the specifically delineated offenses set forth in section 2-8 of the Criminal Code, it will only be deemed to constitute a forcible felony if it falls within section 2-8’s “residual clause” in that it involved “the use or threat of physical force or violence against any individual.”
Importantly, the Illinois statute that defines forcible felony does not require the actual infliction of physical injury; instead, the statute requires only the ‘use or threat of physical force or violence.
Accordingly, courts construing this provision have emphasized that it is the contemplation that force or violence against an individual might be involved combined with the implied willingness to use force or violence against an individual that makes a felony a forcible felony under the residual category of section 2-8.
Therefore, here the relevant inquiry is whether the underlying predicate offense is an inherently forcible felony to satisfy the elements of the armed habitual criminal statute.
Pursuant to Illinois law, a person commits the offense of armed robbery when he or she commits the offense of robbery, which is an enumerated forcible felony that entails knowingly taking property from a person or the presence of another by the use of force or by threatening the imminent use of force, and:
“(1) he or she carries on or about his or her person or is otherwise armed with a dangerous weapon other than a firearm; or
(2) he or she carries on or about his or her person or is otherwise armed with a firearm; or
(3) he or she, during the commission of the offense, personally discharges a firearm; or
(4) he or she, during the commission of the offense, personally discharges a firearm that proximately causes great bodily harm, permanent disability, permanent disfigurement, or death to another person.”
Attempt Armed Robbery
A person commits the offense of attempted armed robbery, in turn, when, with the intent to commit armed robbery, he or she takes a substantial step toward the commission of that offense. 720 ILCS 5/8-4(a).
Taking into account these statutory definitions, the offense of attempted armed robbery requires evidence that a defendant possessed the specific intent to knowingly take property from another by threat or use of force while armed with a firearm or other dangerous weapon and took a substantial step to accomplish that objective. 720 ILCS 5/8-4(a), 18-2(a).
Thus, by virtue of his conviction of that offense, defendant necessarily demonstrated the requisite contemplation or willingness to use force by virtue of the fact that he was armed with a firearm or other dangerous weapon and took a substantial step to deprive another person of property by threat or use of force.
The reviewing court then held that the offense of attempted armed robbery qualifies as an inherently forcible felony for purposes of the armed habitual criminal statute.