Criminal Law

Defendant was convicted, after bench trial, of three counts of aggravated discharge of a firearm and two counts of aggravated unlawful use of a weapon ("AUUW"). AAUW statute is not unconstitutional, even in light of U.S. Supreme Court cases of Heller and McDonald, which were specifically limited to holding that D.C. and City of Chicago ordinances prohibiting handgun possession in homes violated Second Amendment, as those cases do not define the fundamental right to bear arms to include activity barred by the AUUW statute. Court's credibility determination was not in error; despite witness's obvious imperfections as a witness, his prior testimony and statements comport with physical evidence, testimony and circumstantial evidence presented at trial. Ample corroborating evidence supports trial court's conclusion, and supports statement, later disavowed by witness, which identified Defendant as a shooter in two incidents. (QUINN and STEELE, concurring.)

(Correcting court designation appearing in 8/30/10 E-Clips.) State failed to establish beyond a reasonable doubt the essential elements of unlawful possession of a weapon by a felon under accountability theory, where no evidence was presented to establish that either of the two principals who had weapons was a convicted felon. Necessity defense requires that the person claiming the defense was without blame in developing the situation, and the person reasonably believed that his conduct was necessary to avoid an injury greater than the injury that might have resulted from his conduct. Defendant did not satisfy second prong of defense, as he had ample opportunities to comply with the law and to depart from the incident. Fifteen-year enhancement for aggravated kidnapping while armed with a firearm violates the proportionate penalties clause of the Illinois Constitution and is unenforceable; thus, remand for resentencing is required. (ZENOFF and HUTCHINSON, concurring.)

Defendant was convicted of unlawful restraint and domestic battery, after bench trial. Court properly found that State proved, beyond a reasonable doubt, that Defendant knowingly detained the victim. Defendant grabbed victim by her throat, causing her to become pale and gasp for air. Victim and her friend were unable to free victim from Defendant's grasp. Defendant testified that he knew that if he continued choking victim that she would die, and that he did not know why he let her go when the couple's five-year old son, who was observing the incident, said something. Restraint need only be performed knowingly; that Defendant may have had another purpose in entering victim's home (to retrieve couple's children because he was angry that victim had begun dating someone) is irrelevant to whether Defendant was proved guilty beyond a reasonable doubt. (O'MALLEY and HUDSON, concurring.)

Court granted motions to suppress evidence obtained as a result of police encounter and identification testimony by a different officer, filed by Defendant charged with unlawful delivery of controlled substance within 1000 feet of a church. Whether individuals depicted in photos resemble one another is only a matter of opinion. Officer's opinion on resemblance, for identification purposes, would not enhance trier of fact's understanding of any nonopinion testimony he might have. Supreme Court Rule 604(a)(1) does not authorize State to appeal from orders that are "unnecessary" or "might lead to confusion", as such request seeks court's review of objection that has not yet been made or ruled upon. (O'MALLEY and SCHOSTOK, concurring.)

Following bench trial, Defendant was found guilty of one count of home repair fraud and one count of insurance fraud. Defendant was an employee of a fire restoration company who, with another employee, met with a homeowner whose home had been significantly damaged by fire the night before. Evidence was insufficient to support convictions; homeowner did not testify as to who told her that the company would start the reconstruction work soon, even before it was paid by her insurance company. Evidence failed to establish that Defendant was working as a public adjuster on the project, and it was unclear what representations he made to the homeowner about the project. State presented no evidence from which to conclude that Defendant was responsible for making a false or fraudulent insurance claim on homeowner's behalf with her insurance company.(GARCIA and LAMPKIN, concurring.)

Defendant was convicted, after bench trial, of possession of less than 15 grams of cocaine. Defendant was improperly assessed $30 for Children's Advocacy Center, as this violated prohibition against ex post facto laws; statutory provision authorizing the fee was not in effect at the time of the offense. Defendant was ordered to give a DNA sample and pay the $200 analysis fee after having given a DNA sample and being assessed the analysis fee in another case. No significant inconvenience or injustice in State collecting a new DNA sample whenever a defendant is convicted of a felony or other qualifying offense, given reasonable bases of having fresh samples, and the ability to subject new samples to new methods of collection, analysis, and categorization as a result of developments in research and technique. (HOFFMAN and THEIS, concurring.)

Defendant was convicted of first-degree murder. Defendant testified that he shot and killed the victim during a robbery attempt by the victim, after he won the struggle over the victim's gun. The State presented evidence that the Defendant shot and killed the victim with a gun the Defendant had concealed on his person. Because the two versions of the incident were diametrically opposed as to the origin of the gun, the Defendant's version was a claim of "perfect self-defense"; the jury would have believed either the Defendant's version or the State's version, and the Defendant's subjective belief was not in issue. Thus, court properly refused to give second-degree murder instruction to jury. No basis to support Defendant's claim that the jury should have been instructed on second-degree murder based on his subjective belief as to the third of three gunshots to the victim, which the Medical Examiner described as immediately incapacitating and was made while the barrel of the gun was touching the victim's skull. (HALL and PATTI, concurring.)