People v. Jackson

2016 IL App (1st) 141448

THIRD DIVISION
September 21, 2016

No. 1-14-1448

IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
) No. 12 CR 920 (02)
JOSHUA JACKSON, )
)
Defendant, Appellant. ) The Honorable
) Thaddeus L. Wilson
) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Mason concurred in the judgment and
opinion.

OPINION

¶1 Following a bench trial, defendant Joshua Jackson was convicted of armed robbery with a

firearm and aggravated battery with a deadly weapon. He was sentenced to 21 years’

imprisonment for armed robbery with a firearm, which included a 15-year enhancement for

possessing a firearm during the offense, and 6 years’ imprisonment for aggravated battery with a

deadly weapon, to be served concurrently. On appeal, defendant asserts that (1) the evidence was

insufficient to show that the object used in the offense was a firearm; (2) he is entitled to a new
No. 1-14-1448

sentencing hearing in light of recent legislation; (3) his sentence was unconstitutional; and (4) the

fines, fees and costs assessed against him must be reduced. We vacate certain fines, and order

that presentence custody credit be applied against others, but affirm the judgment in all other

respects.

¶2 I. BACKGROUND

¶3 On November 22, 2011, two individuals put a gun to Quintin Kimbrough's back, beat him

and absconded with his backpack. Defendant and codefendant Randy McKnight were

subsequently charged with armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)),

armed robbery with a dangerous weapon (720 ILCS 5/18-2(a)(1) (West 2010)), aggravated

battery with a deadly weapon (720 ILCS 5/12-3.05(f)(1) (West 2010)) and aggravated battery on

a public way (720 ILCS 5/12-3.05(c) (West 2010)). Defendant, who was 17 years old at the time

of the offense, was tried as an adult. 1

¶4 At trial, Kimbrough testified that at about 7:30 p.m. on the night in question, he was

walking north on Pulaski when three men approached him. Kimbrough did not recognize them at

the time, but later identified defendant from a photo array and a physical line-up. When they

asked if Kimbrough had any change, he responded that he did not. The three men then crossed

the street, but Kimbrough kept an eye on them as they continued walking on Pulaski. After one

of the men, who was never identified, turned onto a side street, defendant and codefendant

returned to Kimbrough’s side of the street.

¶5 Pulaski was well-lit from streetlights and automobile headlights. As Kimbrough

approached a somewhat darker section of Pulaski, he felt “the long piece of a gun” on his upper

back, just above the top of the backpack he was wearing. Kimbrough acknowledged, however,

1
Codefendant apparently pled guilty to armed robbery with a firearm in exchange for a 10-year
prison term.

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that he had not seen a gun at this point. He quickly said, “You don’t have to do anything. I’ll

give you [sic] it to you.” Defendant and codefendant told Kimbrough to keep walking and

subsequently took his backpack, which contained clothes, an iPod, credit cards and a couple of

dollars. Defendant and codefendant then pushed Kimbrough into a dark area and instructed him

not to look back. Despite this instruction, he looked back and was immediately struck in his right

eye with the handle of a firearm. Furthermore, he recognized the object as a firearm because he

had seen firearms when visiting relatives who hunt.

¶6 When Kimbrough fell to the ground, defendant and codefendant began kicking and

hitting him. After being struck several times, Kimbrough got up and attempted to escape his

attackers but was hit in his left eye and knocked him to the ground again. Eventually, Kimbrough

made his way into the middle of the street, where a bus driver assisted him. Paramedics took

Kimbrough to the hospital, where he received treatment for his badly swollen eyes, bruised arms

and bruised back. He ultimately had surgery on both eyes.

¶7 Officer Deltoro testified that when he responded to the scene, Kimbrough was “badly

battered” and “[h]is face, his eye was swollen, his right eye, bloody, very huge, bad shape.” In

addition, Kimbrough described his attackers as “[t]hree male blacks, young, somewhere between

the ages of 17 to 21 *** but average height, maybe 5-foot-10 to 6 feet, thin.”

¶8 Several witnesses testified on defendant’s behalf. Justin Jackson, defendant’s brother,

testified that defendant was at school on the day in question. Additionally, Justin, Tamara

Boughton and Danisha Cockrell testified that they, as well as defendant, attended basketball

games in the gym until 7 or 8 p.m. Afterward, Justin waited with Cockrell and defendant for a

southbound bus, and Boughton crossed the street to wait for a northbound bus. When the

southbound bus arrived, defendant and Cockrell boarded it. This was the last time Justin and

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Boughton saw defendant that night. Justin testified that at no time did he see defendant with a

firearm or with codefendant. Additionally, Cockrell testified that she rode the bus with defendant

until the Pulaski and Lake stop, where he exited the bus and walked up the stairs to the Green

Line train platform.

¶9 Defendant testified on his own behalf that he neither robbed nor battered Kimbrough, and

was never with codefendant on the day in question. Instead, he spent the day at school and

subsequently attended basketball games with Justin, Cockrell and Boughton. Afterward, he took

the bus home. Although defendant initially told police that he was at wrestling practice after

school that day, the police reminded him that practice had been cancelled, leading defendant to

remember that he had been watching basketball instead.

¶ 10 Following closing arguments, the trial court found defendant guilty of all counts and

entered a special finding of great bodily harm. The court ultimately sentenced defendant to 21

years’ imprisonment for armed robbery with a firearm and 5 years’ imprisonment for aggravated

battery, to be served concurrently. Defendant’s armed robbery sentence included a 15-year

enhancement for possession of a firearm.

¶ 11 II. ANALYSIS

¶ 12 A. Sufficiency of the Evidence

¶ 13 On appeal, defendant first contends that the evidence was insufficient to support the trial

court’s finding that the object used during the offense was a firearm. Specifically, defendant

argues that Kimbrough lacked the opportunity to identify the object that hit him and was unable

to adequately describe it. He also argues that no evidence corroborated Kimbrough’s testimony

that defendant had a firearm. 2

2
Defendant has abandoned his alibi defense on appeal.

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No. 1-14-1448

¶ 14 When a defendant challenges the sufficiency of the evidence, a reviewing court must

determine whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime to have been proven

beyond a reasonable doubt. People v. Belknap, 2014 IL 117094, ¶ 67. We will not overturn a

criminal conviction except in instances where the evidence is so improbable or unsatisfactory as

to warrant a reasonable doubt of the defendant’s guilt. People v. Campbell, 146 Ill. 2d 363, 374

(1992). Because the trial court is better situated to observe the witnesses, that court is entitled to

assess their credibility, resolve conflicts in the evidence and draw reasonable inferences

therefrom. People v. Irvine, 379 Ill. App. 3d 116, 132 (2008). Thus, we will not substitute the

trial court’s credibility assessments with our own. People v. Sutherland, 223 Ill. 2d 187, 242

(2006). Furthermore, this deferential standard equally applies to a trier of fact’s assessment of a

witness’ testimony that the defendant had a firearm, even where the witness was unable to

accurately describe the weapon. See People v. Lee, 376 Ill. App. 3d 951, 956 (2007).

¶ 15 Under section 18-2(a)(2) of the Criminal Code of 1961 (Code), the State must prove that

the defendant committed a robbery (720 ILCS 5/18-1 (West 2010)) while he carried a firearm

“on or about his or her person or [was] otherwise armed with a firearm.” 720 ILCS 5/18-2(a)(2)

(West 2010). In addition, section 2-7.5 of the Code (720 ILCS 5/2-7.5 (West 2010)) has adopted

the definition of “firearm” found in section 1.1 of the Firearm Owners Identification Card Act:

“ ‘Firearm’ means any device, by whatever name known, which is designed to expel a projectile

or projectiles by the action of an explosion, expansion of gas.” 430 ILCS 65/1.1 (West 2010).

The definition excludes certain items, however, such as B-B guns, signaling devices and antique

firearms. Id. Under this broad definition, unequivocal testimony that the defendant held a firearm

constitutes circumstantial evidence sufficient to show the defendant was armed within the

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meaning of the statute. People v. Fields, 2014 IL App (1st) 110311, ¶¶ 36, 37. Similarly, courts

have consistently held that eyewitness testimony that the offender possessed a firearm, combined

with circumstances under which the witness was able to view the weapon, is sufficient to allow a

reasonable inference that the weapon was actually a firearm. People v. Davis, 2015 IL App (1st)

121867, ¶ 12; see People v. Wright, 2015 IL App (1st) 123496, ¶¶ 74, 76 (pet. for leave to appeal

allowed November 25, 2015). Consequently, the State need not present a firearm in order for the

trier of fact to find the defendant possessed one. See People v. Washington, 2012 IL 107993, ¶

36; People v. Clark, 2015 IL App (3d) 140036, ¶ 24 (holding that in the absence of a recovered

firearm, the witnesses’ unequivocal testimony that they observed the defendant carrying a

firearm was sufficient).

¶ 16 Here, the evidence was sufficient for the trial court to find defendant possessed a firearm.

Kimbrough unequivocally testified that when defendant and codefendant approached him from

behind, Kimbrough “felt the long piece of a gun” in his back and was told, “Don’t turn around,

keep walking.” While defendant did not verbally threaten to shoot or kill Kimbrough, the trial

court could find that defendant implicitly threatened him. See People v. Toy, 407 Ill. App. 3d

272, 289 (2011) (finding the evidence sufficient to support aggravated criminal sexual assault

with a firearm and attempted armed robbery where a victim testified that the defendant verbally

threatened to kill her when he pressed what she believed to be a gun against her head). More

importantly, Kimbrough testified that when he turned around to face defendant, “the handle of

the gun hit [him] in the eye.” See Wright, 2015 IL App (1st) 123496, ¶¶ 75-76 (rejecting the

defendant’s argument that because the witnesses only viewed the handle of the firearm, their

testimony was insufficient to show the item was a firearm). Kimbrough’s unequivocal testimony

identifying the object did not reflect speculation or conjecture. Cf. People v. Laubscher, 183 Ill.

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2d 330, 335-36 (1998) (observing that “conjecture and speculation” are insufficient); People v.

Ross, 229 Ill. 2d 255, 277 (2008) (rejecting the subjective approach to determining whether a

weapon was “dangerous” under the prior version of the armed robbery statute). Moreover,

Kimbrough’s identification of the part of the firearm that hit him indicates that he had sufficient

opportunity to observe it. Although the trial court could have found that Kimbrough lacked

sufficient time to identify the object, the court was not required to make that finding.

¶ 17 We also observe that the record does not support defendant’s assertion that Kimbrough

was unable to describe the firearm; rather, neither attorney asked whether he could provide

additional details. In any event, reviewing courts have upheld trial court determinations that the

defendant possessed a firearm even where very little description of the weapon was presented.

See Fields, 2014 IL App (1st) 110311, ¶ 37 (finding evidence was sufficient where the witness

merely described the firearm as black). While reviewing courts have also upheld findings that

defendants had firearms where more detail was provided, those cases do not establish a

minimum requirement for showing a defendant possessed a firearm. See Wright, 2015 IL App

(1st) 123496, ¶¶ 7, 9 (finding evidence sufficient where one witness described the firearm as an

“automatic, black gun” and a second witness described the firearm as a 9-millimeter pistol);

People v. Malone, 2012 IL App (1st) 110517, ¶¶ 4, 52 (finding evidence sufficient where video

surveillance showed the defendant had a gun in his hand, corroborating witness testimony that

the defendant yielded a “black or black and silver” firearm).

¶ 18 Moreover, the trial court could find Kimbrough’s familiarity with his family’s hunting

rifles enhanced his ability to identify the object as a firearm. Although the weapon that hit him

may not have been a rifle, this court has found that testimony supported a trial court’s finding

that the defendant had a firearm even where the witness had no prior experience with any

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firearm. See id. ¶¶ 51-52. Additionally, no evidence suggested that Kimbrough was hit with

anything but a firearm. See Fields, 2014 IL App (1st) 110311, ¶ 37 (finding “[t]here [was] no

evidence suggesting the gun falls within the statutory exception to the general, broad definition

of a firearm in the FOID Act”). Finally, we note that the trial court was well aware that no

weapon was recovered, but implicitly found the lack of physical evidence did not undermine

Kimbrough’s credibility. We cannot substitute the trial court’s credibility determination with our

own.

¶ 19 B. New Juvenile Legislation

¶ 20 1. Juvenile Jurisdiction and Transfer

¶ 21 Next, defendant asserts in a supplemental brief that he is entitled to a new sentencing

hearing in juvenile court in light of Public Act 99-258 (eff. Jan. 1, 2016), which amended the

automatic transfer provision of the Illinois Juvenile Court Act (Juvenile Act) (705 ILCS 405/5-

130 (West 2016)). At the time of the offense, section 5-130 effectively excluded defendants

charged with armed robbery with a firearm from juvenile court proceedings. 705 ILCS 405/5-

130 (West 2010). Following Public Act 99-258, however, armed robbery with a firearm no

longer excludes a defendant from that court. 705 ILCS 405/5-130 (West 2016).

¶ 22 In response, the State contends that Public Act 99-258 does not apply retroactively.

Two divisions of the First District of this court recently reached different conclusions in this

regard. People v. Hunter, 2016 IL App (1st) 141904, ¶ 71; People v. Patterson, 2016 IL App

(1st) 101573, ¶ 15. Even assuming this most recent amendment to section 5-130 applies

retroactively, it would not help this defendant because another factor disqualified him from being

subject to juvenile proceedings: his age at the time of the offense. In reaching this determination,

we begin by considering the impact of Public Act 98-61 (eff. Jan. 1, 2014) on section 5-120.

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Although the parties have failed to address this statute, section 5-130 is a mere exception to

section 5-120.

¶ 23 We review questions of statutory construction de novo. People v. Fiveash, 2015 IL

117660, ¶ 10. In addition, the cardinal rule of statutory construction is to determine the

legislature's intent. Id. ¶ 11. To determine whether a statutory amendment is to be applied

retroactively, however, we must apply the more specific two-step approach set forth in Landgraf

v. USI Film Products, 511 U.S. 244 (1994). Commonwealth Edison Co. v. Will County Collector,

196 Ill. 2d 27, 39 (2001). Pursuant to Landgraf, courts must first determine whether the

legislature has clearly indicated the amended statute's temporal reach; if so, courts must give

such intent effect, absent a constitutional prohibition. People v. J.T. Einoder, Inc., 2015 IL

11793, ¶ 29. If the legislature has not provided the statute's temporal reach, however, courts must

proceed to the second step, which requires determining whether applying the statute would

involve a retroactive impact. Commonwealth Edison Co., 196 Ill. 2d at 38. If retrospective

application would result in a retroactive impact or inequitable consequences, we must presume

that the legislature did not intend such an application. J.T. Einoder, Inc., 2015 IL 11793, ¶ 30.

¶ 24 At the time of the offense, section 5-120, the Juvenile Act's exclusive jurisdiction

provision, stated, in pertinent part, as follows:

"Proceedings may be instituted under the provisions of this Article concerning

any minor who prior to the minor's 17th birthday has violated *** any federal or State

law *** and any minor who prior to his or her 18th birthday has violated *** any federal,

State, county or municipal law or ordinance classified as a misdemeanor offense. ***

Except as provided in Section[] *** 5–130, *** no minor who was under 17 years of age

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at the time of the alleged offense may be prosecuted under the criminal laws of this

State." (Emphases added.) 705 ILCS 405/5-120 (West 2010).

Thus, unless charged with a misdemeanor, a defendant must be under 17 years old at the time of

the offense to be subject to the juvenile court’s jurisdiction. Even if a defendant was under 17

years old at that time, he will not be tried as a juvenile if section 5-130 applies. Under section 5-

130(a)(1), "[t]he definition of delinquent minor under Section 5–120 of this Article shall not

apply to any minor who at the time of an offense was at least 15 years of age and who is charged

with: *** armed robbery when the armed robbery was committed with a firearm.” 705 ILCS

405/5-130(a)(1) (West 2010).

¶ 25 There is no dispute that defendant was charged with felonies, not misdemeanors. At the

time of the offense, defendant was 17 years old, not under 17 years old as required for section 5-

120 to apply. Thus, defendant did not fall within the juvenile court’s jurisdiction, regardless of

section 5-130. Although the exception found in section 5-130 would also have removed him

from the juvenile court due to the crime with which he was charged, we need not consider

whether the exception to the general rule applies where the general rule is itself inapplicable.

¶ 26 We recognize that after defendant committed this offense, the legislature enacted Public

Act 98-61, which amended section 5-120 to include minors who commit felonies before their

18th birthday. 705 ILCS 405/5-120 (West 2014). With that said, the amendment contains a

savings clause. People v. Richardson, 2015 IL 118255, ¶ 3. Specifically, the amendment to

section 5-120 stated, "[t]he changes made to this Section by this amendatory Act of the 98th

General Assembly apply to violations or attempted violations committed on or after the effective

date of this amendatory Act." 705 ILCS 405/5-120 (West 2014). Thus, the legislature has clearly

indicated this amendment's temporal reach: defendants who commit felonies before their 18th

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birthday are subject to juvenile proceedings only if they committed the charged offenses on or

after January 1, 2014, the effective date of Public Act 98-61.

¶ 27 Here, defendant's initial brief conceded that the amendment did not apply to him and that

he did not fall within juvenile jurisdiction under section 5-120. We agree. The offense at hand

occurred well before 2014. Consequently, as a 17-year-old, he was not subject to juvenile

proceedings. Because defendant never fell within the juvenile court’s jurisdiction pursuant to

section 5-120, section 5-130 could not have removed him from that court. Even assuming the

changes that Public Act 99-258 made to section 5-130 apply retroactively, defendant would

nonetheless have been tried as an adult.

¶ 28 2. Juvenile Sentencing

¶ 29 We also reject defendant's contention that he should be resentenced based on the recently

enacted section 5-4.5-105 of the Unified Code of Corrections (730 ILCS 5/5-4.5-105 (West

2016)). Pursuant to Public Act 99-69 (eff. Jan. 1, 2016), and Public Act 99-258 (eff. Jan. 1,

2016)), our legislature has provided that “[o]n or after the effective date of this amendatory Act

of the 99th General Assembly, when a person commits an offense and the person is under 18

years of age at the time of the commission of the offense, the court” must consider specific

sentencing factors applicable to juveniles. 730 ILCS 5/5-4.5-105 (West 2016)). Trial courts also

now have discretion to decline to impose firearm enhancements, such as the enhancement

applied to defendant's sentence. Id.

¶ 30 Even assuming the amendment's prefatory language is not an unambiguous indicator of

its temporal reach, this new statute cannot be applied to defendant. Where the statute at issue is

silent as to temporal reach, section 4 of the Statute on Statutes controls the first step of the

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Landgraf inquiry. Caveney v. Bower, 207 Ill. 2d 82, 91-92 (2003) (good to go). Section 4 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 provision upon the same subject or in any other act." (Emphasis

added.) 5 ILCS 70/4 (West 2010).

Under section 4 of the Statute on Statutes, legislative enactments can constitute a substantive

change or a procedural change or, can mitigate the sentence. People v. Gancarz, 228 Ill. 2d 312,

319, 321-22 (2008). Although this third category of enactments arises less frequently, our

supreme court has found that the language concerning the mitigation of punishment means that a

defendant sentenced before the effective date of the sentencing amendment at issue is not subject

to the amendment. People v. Bradford, 106 Ill. 2d 492, 504 (1985); People v. Hansen, 28 Ill. 2d

322, 340-41 (1963); see also Gancarz, 228 Ill. 2d 312, 318 (2008) (observing that mitigating the

available sentence is not a substantive change).

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¶ 31 As stated, defendant was sentenced well before the effective date of section 5-4.5-105.

Accordingly, section 5-4.5-105 does not entitle defendant to any relief.

¶ 32 C. Unconstitutional Legislation Regarding Juveniles

¶ 33 Defendant further asserted in his initial brief that the Juvenile Act’s jurisdiction

provisions (705 ILCS 405/5-120, 5-130 (West 2010)), as well as the mandatory firearm

enhancement (720 ILCS 5/18-2(b) (West 2010)), and the truth-in-sentencing provision, are

unconstitutional (730 ILCS 5/3-6-3(a)(2)(ii), (iii) (West 2010)). In his reply brief, however,

defendant concedes that his assertion was foreclosed by People v. Patterson, 2014 IL 115102.

He maintains his position solely to preserve this matter for further appeal. In light of his

concession, we need not consider this issue further.

¶ 34 D. Fines and Fees

¶ 35 Finally, defendant asserts, and the State concedes, that the $10 Mental Health charge (55

ILCS 5/5-1101(d-5) (West 2010)), $5 Youth Division charge (55 ILCS 5/5-1101(e) (West

2010)), the $5 Drug Court charge (55 ILCS 5/5-1101(f) (West 2010)), the $30 Children's

Advocacy charge (55 ILCS 5/5-1101(f-5) (West 2010)), the $15 State Police Operations charge

(705 ILCS 105/27.3a(1.5) (West 2010)) and the $50 Court System fee (55 ILCS 5/5-1101(c)

(West 2010)) must be offset by $5-per-day presentence custody credit (725 ILCS 5/110-14(a)

(West 2010)). 3 Although defendant also asserts that the $2 State's Attorney Records Automation

Fee (55 ILCS 5/4-2002.1(c) (West 2010)) constitutes a fine subject to offset, the State disagrees.

We adhere to our prior determination that this charge is not a fine subject to offset. People v.

Reed, 2016 IL App (1st) 140498, ¶ 16; People v. Rogers, 2014 IL App (4th) 121088, ¶ 30.

¶ 36 With that said, the State concedes that the $2 Public Defender Records Automation Fee

(55 ILCS 5/3-4012 (West 2010)) should be vacated because defendant was represented by
3
Defendant was awarded 805 days of presentence custody credit.

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private counsel. In addition, defendant asserts that the court improperly assessed against him the

$25 Violent Crime Victim Assistance (VCVA) fine (725 ILCS 240/10(c)(1) (West 2010)). The

State contends that the $25 fine was miscellaneous, not the VCVA fine, but agrees that the fine

should be vacated. Accordingly, we vacate $27 in assessments and order that $115 in

assessments be offset with presentence custody credit.

¶ 37 III. CONCLUSION

¶ 38 The evidence was sufficient for the trier of fact to find that defendant possessed a firearm

at the time of the offense. In addition, recent legislation does not warrant further proceedings.

We agree, however, that the fines and fees order must be modified consistent with this decision.

¶ 39 For the foregoing reasons, the judgment is affirmed as modified in part and vacated in

part.

¶ 40 Affirmed as modified in part and vacated in part.

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