People v. Cowart

2017 IL App (1st) 113085

SIXTH DIVISION
MAY 12, 2017

No. 1-11-3085

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 09 CR 13763
)
CHARLES COWART, ) Honorable
) Thaddeus L. Wilson,
Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Justices Connors and Delort concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Cook County, defendant Charles Cowart was

convicted of first-degree murder under a theory of accountability. Following a simultaneous

bench trial outside the presence of the jury, defendant was also convicted of being an armed

habitual criminal (AHC). Subsequently, the trial court sentenced him to 51 years of

imprisonment for first-degree murder and a concurrent 20-year sentence for the AHC conviction.

On appeal, this court reversed both the first-degree murder conviction and the AHC conviction.

Our supreme court then issued a supervisory order directing us to reconsider that judgment in

light of its decision in People v. McFadden, 2016 IL 117424. Having done so, we now affirm

the defendant's AHC conviction, reverse the defendant's first-degree murder conviction, and

remand for resentencing.
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¶2 BACKGROUND

¶3 On June 21, 2009, in the late evening, victim Lee Floyd (Lee) was shot and killed at an

outdoor party located at West Van Buren Street and South Keeler Avenue in Chicago, Illinois.

On June 26, 2009, police officers arrested defendant, who was subsequently charged with the

first-degree murder of Lee, the offense of being an AHC, and aggravated discharge of a firearm.

Defendant asserted in his videotaped statement to the police that one of his friends, Keevo, 1

accidentally shot Lee during the party. Prior to trial, on June 20, 2011, the State decided to

proceed with the first-degree murder and AHC charges, but nol-prossed the remaining charges.

¶4 On June 21, 2011, the same day a bench trial commenced on the AHC charge, a jury trial

commenced on the first-degree murder charge. Tytianna Johnson (Tytianna) testified on behalf

of the State that, at about 10:30 p.m. on June 21, 2009, she, Iesha Parker (Iesha), Keyana

Williams (Keyana), and Elaina Riley (Elaina) attended a Father's Day outdoor celebration in the

area of West Van Buren Street and South Keeler Avenue in Chicago. Tytianna estimated that

about 200 people attended the party, including Jasmine Benson (Jasmine) and defendant, whose

nickname was "LC." Tytianna noticed a group of "boys standing around" with defendant,

including an individual nicknamed "Bird," which she described as the "LC crew." Tytianna

noticed that defendant had a gun tucked into his waistband, that he wore a white tee-shirt bearing

a photograph of someone, and that the "[m]ajority of the whole party" wore the same shirt.

Although Tytianna testified at trial that she did not see Bird with a gun, she had previously

informed the grand jury and an assistant State's Attorney that Bird had a gun at the party. At

some point, Jasmine and Ashley Dockery (Ashley) got into a verbal argument, while Tytianna

1
The spelling of this individual's name varies in the record as "Keevo" or "Kevo."

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and Ashley's boyfriend, Tommy, stood nearby. About 7 to 10 minutes later, "a whole crowd of

boys" stood in front of Tytianna, Iesha, Keyana, and Elaina. The group of about 20 boys

included defendant, Bird, "Smooth," and the victim, Lee. Elaina then made a statement, which

caused the "whole party" to get "real rowdy" and to turn against the girls. Smooth then threw a

drink in Iesha's face and defendant slapped Iesha. Elaina then hit defendant, who then hit Elaina

and she fell to the ground. The crowd then started "going crazy" and everyone was "swinging."

Ralph Benson (Ralph), who was the father of Tytianna's children, then physically pulled

Tytianna out of the fight. Moments later, Tytianna heard gunshots and observed "Pooh Bear"

shooting a gun in the air. Tytianna and Ralph then hid under a parked truck on the corner of the

street. During the incident, Tytianna heard a total of about 25 to 30 gunshots fired from four or

five different guns, and heard the boys yell, "[s]hoot them ho's, [s]hoot them ho's." Several days

later, on June 27, 2009, Tytianna cooperated with the police and identified photographs of the

males she saw at the party, including Pooh Bear, Tommy, Bird, and she also identified defendant

in a physical lineup. On cross-examination, Tytianna was impeached with her grand jury

testimony, which stated that "[m]ost of the males" she saw at the party had guns in their

possession.

¶5 Iesha testified that at about 10 p.m. on June 21, 2009, she, Tytianna, Keyana, and Elaina

attended an outdoor party in the playground of an elementary school at West Van Buren Street

and South Keeler Avenue. Iesha estimated about 50 to 100 people in attendance, and partygoers

stood on the sidewalks, yard, and streets. Iesha saw Tommy, Pooh Bear, Keevo, Melissa Meridy

(Melissa), and Jasmine at the party. Jasmine engaged in an altercation with Ashley, after which

Tommy walked to Jasmine and Melissa on the street corner, said something to them, and walked

back toward the elementary school grounds. Elaina then said something to Pooh Bear, which

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caused "all the guys out there" to walk toward the girls who were on the street corner at West

Van Buren Street and South Keeler Avenue at that time. Iesha knew that something was about to

happen and started to leave when Smooth or Suavo threw a drink in her face. Defendant then

struck Iesha in the face, after which Elaina and defendant engaged in a physical altercation.

Iesha described the scene as "[e]veryone just got fighting." When gunshots rang out, Iesha fled

southbound on South Keeler Avenue toward a bridge leading to Harrison Street. As she fled, she

continued to hear about six or seven gunshots, looked back and saw Elaina fall down, and saw

defendant shooting over the bridge at them from the corner of the elementary school. After she

reached Harrison Street, Iesha hid under a porch for about 20 minutes. On June 27, 2009,

Detective Garcia came to Iesha's home and brought her to the police station, where she identified

photographs of Keevo, Bird, Suavo, Tommy, and Pooh Bear. Iesha also identified defendant in a

physical lineup and in a statement to an assistant State's Attorney as the person who had shot at

her.

¶6 Peggy Allen (Peggy) testified that she lived in a first-floor apartment near the intersection

of West Van Buren Street and South Keeler Avenue at 4158 West Congress Parkway. In the

early morning of June 22, 2009, Peggy awoke to the sounds of gunshots close to her apartment.

She looked out the window onto South Keeler Avenue and observed two girls running

southbound toward West Congress Parkway and ducking between cars as a young man followed

and shot at them. A group of people also followed behind the shooter as the shooter followed the

girls. The gunman shot at the girls at least six times—three times before Peggy looked out the

window and three times as she watched the incident unfold. After the shooting, Peggy

discovered bullet holes in her windows, the dining room, and the kitchen. The next day, Peggy

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spoke with the police and showed them the damage to her home. Police officers recovered

bullets and photographed the damage caused by the gunfire to her residence.

¶7 Melissa testified that at about 8 p.m. on June 21, 2009, she and Jasmine attended the

barbecue party in an elementary school yard in the area of West Van Buren Street and South

Keeler Avenue. Defendant, who wore a tee-shirt with a picture on it, was at the party. At some

point during the party, Melissa, who was standing in the middle of the street on West Van Buren

Street, saw a fight on the corner of West Van Buren Street and South Keeler Avenue. Melissa

observed Suavo hit Elaina. Tytianna's boyfriend then picked Tytianna up off the ground at the

corner of West Van Buren Street and South Keeler Avenue. As the fight broke out, Melissa

telephoned a friend. After the telephone call, Melissa approached the corner where the fight was

occurring and heard about nine gunshots. However, she did not see who was firing the shots.

Melissa ducked behind cars as she fled and headed home. On June 28, 2009, Melissa went to the

police station and identified defendant, Pooh Bear, Keevo, Tommy and Suavo in a photographic

array as individuals who were present at the party. Melissa also informed the police that she had

observed Pee Wee flashing a gun before the fight occurred at the party.

¶8 Roceaser Ivy (Roceaser) testified that he met defendant in 2006, and that he came into

contact with defendant again in 2008. At trial, Roceaser initially denied that he was ever in the

area of West Van Buren Street and South Keeler Avenue on the evening of June 21, 2009 or the

early morning hours of June 22, 2009. He denied witnessing defendant's involvement in a

shooting at that location. Although Roceaser was impeached at trial with his prior statements to

the police, the assistant State's Attorney, and the grand jury, in which he said that he had

observed defendant shooting a gun on the night of the party, Roceaser testified at trial that he had

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lied to the authorities and the grand jury because the police had threatened to take his parole

away. 2

¶9 Assistant State's Attorney George Canellis (ASA Canellis) testified that on July 2, 2009,

he met with Roceaser, who informed ASA Canellis of the details of the shooting. ASA Canellis

testified as to Roceaser's testimony before the grand jury, which was published to the jury at

trial: In his grand jury testimony, Roceaser testified that, after midnight on June 22, 2009, he

was walking down South Keeler Avenue near West Van Buren Street and was trying to buy

marijuana. Roceaser estimated that there were about three to four hundred people outside

"celebrating something." As he walked on South Keeler Avenue toward West Van Buren Street,

Roceaser saw defendant fire a gun and saw "fire jump from his hand." When the shooting began,

Roceaser was walking on the east side of South Keeler Avenue and was two sidewalk "squares"

from West Van Buren Street, while defendant was standing diagonally across the street next to

an elementary school on the southwest corner of the intersection. A crowd of people stood

behind defendant. Roceaser informed the grand jury that he had no difficulty observing

defendant at the time of the shooting because lighting from the school building shone on

defendant. Defendant was wearing a white tee-shirt, blue jeans, white tennis shoes, and a white

hat. Roceaser's grand jury testimony stated that he heard no gunshots prior to defendant's firing

the gun; that defendant had extended his arm and was shooting at somebody rather than up in the

air; and that Roceaser initially heard at least five or six shots and fled toward public

transportation at West Van Buren Street and Pulaski Road. Roceaser could still hear gunshots as

he fled, which became quieter as he got farther away. In his grand jury testimony, Roceaser also

2
At the time of trial, Roceaser was in federal custody on an unrelated drug charge and
had previously been convicted of other felony offenses.

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stated that he was treated fairly by the police; that the police did not make any threats or

promises to him in exchange for his statement; and that ASA Canellis never made any promises

to him regarding his parole status.

¶ 10 At the time of trial, the State called former Assistant State's Attorney Jenni Scheck

(Scheck) who testified that on July 1, 2009, she and Detective Garcia met with Roceaser and had

a conversation with him about the details of the shooting, which was then memorialized in a

typewritten statement. At some point during the conversation, Scheck questioned Roceaser

alone in the police interview room, and Roceaser never indicated that either Detective Garcia or

other police officers threatened to revoke his parole unless he agreed to speak with them. Scheck

testified that Roceaser was given the opportunity to make changes and corrections to the

statement and that he attested to the accuracy of the statement by signing the bottom of each

page. During Scheck's trial testimony, the typewritten statement was admitted into evidence and

published before the jury. The typewritten statement of Roceaser stated that after midnight on

June 22, 2009, he was looking to buy some marijuana in the area of South Keeler Avenue and

West Van Buren Street. As Roceaser headed southbound on South Keeler Avenue near West

Van Buren Street, he saw defendant standing across the street near a school at the southwest

corner of the intersection. Defendant, who was wearing white tennis shoes, blue jeans, a white

tee-shirt and baseball hat, stood under a light emanating from the school building. Roceaser

stated that defendant was "with some other people but seemed to be a step ahead of the group."

There were also "groups of 15 to 20 people and a bigger group behind the school." Roceaser

then observed defendant with a gun in his hand and heard two gunshots. Roceaser saw "fire"

come out of defendant's hand as he discharged his weapon "in the direction where other people

[were] standing." Roceaser stated that defendant "definitely shot the gun towards people and not

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up into the air," that he did not hear any gunshots before defendant fired the gun, and that

Roceaser then fled upon seeing defendant shoot his gun. After he started running, Roceaser

heard other gunshots, which grew fainter as he got farther away. Roceaser also stated in the

typewritten statement that he was treated well by the detectives and Scheck; that he was given

food by the police; that he was allowed to use the restroom whenever he needed to; that he was

not handcuffed at any time at the police station; and that no threats or promises had been made to

coerce him to make a statement; that he gave the statement freely and voluntarily; that he was

allowed to make any changes or corrections to his statement; that he put his initials by the

changes or corrections that were made; and that everything contained in the statement was true

and accurate.

¶ 11 Officer Kevin Ebersole (Officer Ebersole) testified that at 12:30 a.m. on June 26, 2009,

several days after the shooting, he and his partner, Officer Suing, were on routine patrol when

they received a radio flash message of a vehicle and occupant who had been involved in an

incident at Lake Street and Homan Avenue. About a minute later, as the officers headed

southbound on Homan Avenue, Officer Ebersole spotted the vehicle matching the description in

the flash message. Once the police stopped the vehicle, the front passenger exited the vehicle

with a "nickel or chrome-plated" handgun in his hand and thereafter placed the gun into his

waistband. At trial, Officer Ebersole identified defendant as the individual he observed exiting

the vehicle. Officer Ebersole testified that defendant exited the vehicle, and fled westbound on

Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer Ebersole

observed defendant throw the handgun onto the roof of a garage near 512 North Trumbull

Avenue. Moments later, Officer Ebersole apprehended defendant. Other police officers then

recovered the handgun from the roof of the garage where defendant had tossed it.

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¶ 12 Officer Nick Beckman (Officer Beckman) testified that on June 26, 2009, he arrived at

the 500 block of North Trumbull Avenue and spoke with police officers who were already at the

location. He was directed by other officers to the roof of a garage at 512 North Trumbull

Avenue, where he recovered a 9-millimeter semiautomatic handgun with a chrome finish. The

handgun's magazine was empty and Officer Beckman inventoried the weapon. Evidence was

presented by the State at trial that subsequent testing of the handgun showed that it matched three

cartridge cases that were recovered from the June 21, 2009 shooting crime scene near 407 South

Keeler Avenue.

¶ 13 Detective Gregory Jones (Detective Jones) testified that he investigated the shooting

death of Lee. On June 26, 2009, Detective Jones interviewed Roceaser, who identified defendant

in a physical lineup as the person who had fired a handgun during the shooting melee on June 21,

2009. On June 27, 2009, Detective Jones also interviewed Iesha, Tytianna, and Keyana.

Tytianna identified defendant in a physical lineup as a person she saw "involved in a fight just

prior to the shooting and also a person she saw with a handgun in his waistband before the

shooting." Tytianna also identified Tommy and Pooh Bear in a photographic array. Iesha

viewed the physical lineup separately and also identified defendant as "the person who had

punched her in her face with his fists and then fired multiple shots at her as she ran." Iesha

further identified Bird, Pooh Bear, Tommy, and Suavo in a photographic array. On June 28,

2009, Detective Jones also interviewed Melissa, who identified Pee Wee, Suavo, Tommy,

Keevo, Pooh Bear, Bird, Elaina, Iesha, Lee, Roceaser, Smooth, Fish, Lil One, Chris Rock

(Rock), D-Mac, and defendant in a photographic array. Melissa informed Detective Jones that

she had seen Pee Wee with a gun prior to the fight, and that Tommy had made threats to shoot

anybody who "touches his girl." On June 29, 2009, Detective Jones and his partner also

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interviewed Ashley, who identified Lee, Melo, Rock, Tommy, Keevo, Pooh Bear, Smooth, Pee

Wee, and defendant as being present at the party at the intersection of West Van Buren Street

and South Keeler Avenue on June 22, 2009. However, Ashley was not present at the time of the

shooting. On July 1, 2009, Detective Jones reinterviewed Roceaser. Detective Jones testified

that Roceaser was not placed under arrest or in handcuffs; that no threats were made to him

regarding his parole status; that an assistant State's Attorney memorialized a statement made by

Roceaser; and that Roceaser testified before the grand jury on July 2, 2009. Detective Jones

testified that, in the course of his investigation, he had evidence that "there were multiple people

shooting" at the street corner of West Van Buren Street and South Keeler Avenue. On July 6,

2009, Detective Jones conducted another physical lineup with Iesha and Tytianna, from which

Iesha identified Tavaris Hightie (Tavaris) as "being at the scene with a gun" and Tytianna

identified Tavaris as "one of the people actually shooting a gun." During Detective Jones'

testimony at trial, defendant's videotaped statement to the police was published to the jury.

¶ 14 In his videotaped statement, defendant stated that he helped organize the Father's Day

celebration for one of his "homies," Boodro, who died eight years earlier. Defendant and many

partygoers wore tee-shirts with Boodro's picture on the front. The party included food, drinks, a

D.J., and a photographer, and was located in a schoolyard at West Van Buren Street and South

Keeler Avenue. The party was going smoothly until some "females" started to get into a fight

with each other, and Bird tried to resolve the dispute by telling a female individual to "get the

[expletive] on." Defendant described what unfolded next. Defendant stated that he slapped the

female at the corner of West Van Buren Street and South Keeler Avenue, because she was

"talking crazy." According to defendant, the "baby daddy" of the woman he had slapped then

"hit [defendant's] homie, Smooth." Defendant did not know the identity of the "baby daddy."

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Defendant stated that when the "baby daddy" hit Smooth, defendant and all of his friends,

including Smooth, Marvin, Lee (the victim), Keevo, and Big Greek surrounded the man.

Defendant stated that when they had "baby daddy" surrounded in a circle, Keevo said, "watch

out, I'm [fittin] to kill this bitch." Defendant then heard the first gunshot, and saw people move

back. At that time, Keevo was facing West Van Buren Street and South Keeler Avenue, while

the victim, Lee, had his back turned toward that intersection and was facing West Congress

Parkway and South Keeler Avenue instead. When the second gunshot sounded, defendant

claimed that he saw Lee "roll over on the ground," but defendant did not know at the time, that

Lee had been shot. Defendant claimed that Keevo accidentally shot Lee when Keevo was trying

to "get this bitch." When a third gunshot sounded, defendant heard "all the bullets *** going

towards the bridge" near West Congress Parkway, in the direction where "two girls" were

running as the shooting began. When asked who was shooting, defendant answered, "Kevo shot

first. [Pooh] Bear shot. Pee Wee shot. *** I had my gun out[,] Bird had his gun out."

However, defendant denied that either he or Bird fired their weapons, but stated that "I had a

nine. Bird had a nine. Basically it was a lot of nine's out there it was a few .357 [revolvers]."

Defendant noted that he had been shot on multiple occasions in the past and, thus, took his gun

out once the shooting began. Defendant stated that "baby daddy" was able to escape by running

away. He noted that "baby daddy" got away because once gunshots were heard, "everyone out

there wasn't focused." Defendant denied walking with the crowd that followed and shot at the

girls who were running toward the bridge. Instead, he claimed that he, Bird, Smooth, and Pee

Wee put Lee into Smooth's car, and Smooth drove Lee to the hospital. Defendant claims that he

ran to Gladys Avenue to get away from West Van Buren Street and South Keeler Avenue

because the police were coming and he still had the gun in his possession. Defendant then gave

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the gun to someone named "Melva." He did not find out that his "homie" Lee had died until the

following morning. Defendant claimed that the handgun that the police recovered from his

person several days after the shooting was a different firearm than the one he had in his

possession during the shooting.

¶ 15 At trial, after defendant's videotaped statement was played for the jury, Detective Jones

testified on cross-examination that, based on his interviews with the witnesses, Lee was standing

on the street near the southwest corner of the intersection of West Van Buren Street and South

Keeler Avenue when he was shot. Detective Jones estimated that, at the time Lee was shot, there

were "several people" directly around him and "a couple hundred people" at the party, and there

were several handguns that had been fired at the time Lee was shot. On redirect, Detective Jones

testified that the police had not recovered any firearms other than the gun that was recovered

from defendant.

¶ 16 Evidence was presented at trial that the police found shell casings and blood at the crime

scene. Evidence technicians located and recovered 26 shell casings, a fired bullet, and a bullet

jacket from the crime scene, which led Tonia Brubaker (Brubaker), a forensic scientist, to

conclude that at least 28 gunshots from six or seven different firearms had been fired at the

scene—including two .38-caliber firearms; four 9-millimeter firearms; and one unknown firearm.

Stephen Balcerzak (Balcerzak), an evidence technician, also testified that revolvers do not expel

shell casings and, thus, would not leave such evidence behind.

¶ 17 The State, outside the presence of the jury, also introduced into evidence two certified

copies of defendant's previous convictions: the first was a certified copy of a January 9, 2007

felony conviction for possession of a controlled substance with intent to deliver, in violation of

section 401 (d)(i) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d)(i) (West

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2006)) (case No. 06 CR 2687101); the second was a certified copy of a February 1, 2002 felony

conviction for aggravated unlawful use of a weapon, in violation of section 24-1.6(a)(1) of the

Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No. 01 CR

1233801).

¶ 18 By stipulation, the parties agreed that Dr. Tera Jones (Dr. Jones) performed the autopsy

of Lee's body. Dr. Jones observed a gunshot entrance wound on his right upper back, and the

exit wound on his right upper chest. The bullet traveled from "back to front slightly right to left

and upward." Examination of the skin around the entrance wound revealed no evidence of close-

range firing, which typically occurs when the firearm is less than 18 inches from the victim. The

parties stipulated that Dr. Jones would testify within a reasonable degree of medical and

scientific certainty that the cause of death was due to a gunshot wound on Lee's back and the

manner of death was homicide.

¶ 19 After the State rested, three witnesses testified on behalf of defendant. Antonio Williams

(Antonio) is defendant's nephew and was about 14 years old at the time of the shooting. Rekia

Williams (Rekia) is Antonio's mother. Tiana Cowart (Tiana) is defendant's wife. Antonio, Rekia

and Tiana testified that they saw defendant fighting with some women when they heard the first

gunshots at the Father's Day party. Antonio testified that once the fight broke out, "everybody

started fighting." Antonio testified that, before the shots were fired, Lee was standing on the

sidewalk by the entrance door of the elementary school, which was about 15 feet away from the

corner of West Van Buren Street and South Keeler Avenue. Antonio did not see Lee get struck

by a bullet, but only saw him fall to the ground. All three witnesses testified that they neither

saw defendant in possession of a gun nor fire a weapon, and that they fled the scene shortly after

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they heard the gunshots. Rekia and Tiana also testified that defendant wore a sling on one of his

arms on the night of the shooting.

¶ 20 During jury deliberations and outside the presence of the jury, the trial court conducted a

simultaneous bench trial and found defendant guilty of being an AHC. Following deliberations,

the jury found defendant guilty of first-degree murder of Lee and found that he personally

discharged a firearm.

¶ 21 On September 23, 2011, the trial court denied defendant's motion for a new trial. The

trial court then sentenced defendant to 51 years of imprisonment, which included a 20-year

firearm enhancement, and the court imposed a concurrent 20-year sentence for the AHC

conviction. On September 30, 2011, the trial court denied defendant's motion to reconsider the

sentence. Defendant then appealed.

¶ 22 On February 9, 2015, this court reversed both of defendant's convictions. People v.

Cowart, 2015 IL App (1st) 113085. In reversing the first-degree murder conviction, we held that

"the State failed to prove beyond a reasonable doubt that there was a common criminal design

between defendant and Lee's killer, so as to establish defendant's intent to promote or facilitate

the crime." Id. at ¶ 38. In reversing the AHC conviction, we held that the State failed to prove

the predicate offenses for AHC because defendant's prior conviction for AUUW was based on a

statute found to be unconstitutional in People v. Aguilar, 2013 IL 112115. Id. at ¶ 47.

¶ 23 In November 2016, our supreme court issued a supervisory order directing us to vacate

our February 9, 2015 order, and to reconsider that judgment in light of its decision in People v.

McFadden, 2016 IL 117424. Both defendant and the State submitted supplemental briefs.

Having reconsidered in accordance with the supreme court's mandate, we now affirm the

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defendant's AHC conviction, reverse the defendant's first-degree murder conviction, and remand

for resentencing.

¶ 24 ANALYSIS

¶ 25 We note that we have jurisdiction as defendant filed a timely notice of appeal following a

final order pursuant to Illinois Supreme Court Rule 606 (eff. Nov. 1, 2016).

¶ 26 We determine the following issues on appeal: (1) whether the State established beyond a

reasonable doubt that defendant committed first-degree murder under a theory of accountability;

(2) whether the State established beyond a reasonable doubt that defendant committed the

offense of AHC in light of McFadden; and (3) whether the trial court erred in imposing a 20-year

firearm enhancement sentence on defendant's first-degree murder conviction.

¶ 27 We first determine whether the State established beyond a reasonable doubt that

defendant committed first-degree murder on a theory of accountability. 3

¶ 28 As a preliminary matter, defendant points out in his reply brief that the State's response

brief makes various references to gang evidence, which had not been presented at trial, and asks

that this court strike or ignore these gang-related references. We agree that the State's original

brief makes gang-related references from portions of the transcript of defendant's videotaped

statement that was not played for the jury. However, in December 2014, this court granted the

State leave to file a corrected brief, which removed from the brief all gang-related references that

were not admitted at trial. The corrected brief did not make any substantive changes to the

3
The issue of first-degree murder in this case is outside the scope of the supreme court's
supervisory order, as the McFadden decision has no bearing on the first-degree murder
conviction. While we are not precluded from reconsidering issues outside the scope of the
mandate, the State does not provide any new arguments in support of a first-degree murder
conviction. See, e.g., People v. Warren, 2016 IL App (1st) 090884-C. Therefore, our analysis on
this issue is unchanged from our February 9, 2015 vacated order.

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State's arguments regarding the issues on appeal. Also, in the interest of judicial economy, this

court will treat defendant's reply brief to the State's original response brief as a reply brief to the

State's corrected brief.

¶ 29 Defendant argues that his conviction should be reversed because the State failed to prove

beyond a reasonable doubt that he committed first-degree murder under a theory of

accountability, where the shooter was unknown and the weapon that was used to kill Lee was

unknown. Even if the State's evidence could be believed, he contends, it only showed that

defendant was shooting at Iesha and her friends, while Lee was nowhere in sight. Defendant

argues that the State failed to present the testimony of any witnesses who saw "anyone else shoot

at [Iesha] before [Lee] was shot," that the State failed to present any facts that connected

defendant's friends to the fatal bullet, and that the physical evidence implicated numerous

unknown potential shooters. He contends that instead of charging defendant for a crime against

Iesha, the State "overcharged" him with the first-degree murder of Lee on a theory of

accountability. Specifically, defendant claims that, even viewing the evidence in the light most

favorable to the State, the evidence was insufficient to prove beyond a reasonable doubt, all of

the elements of the theory of accountability.

¶ 30 The State counters that defendant was proven guilty beyond a reasonable doubt of first-

degree murder under a theory of accountability. Specifically, the State argues that defendant was

properly convicted of the offense because he and his friends participated in a common criminal

design that resulted in Lee's death. The State further argues that other factors, such as

defendant's presence during the commission of the crime, his flight from the scene, his failure to

report the incident, and his continued association with the other offenders after the shooting, all

showed that defendant was accountable for Lee's death.

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¶ 31 When the sufficiency of the evidence is challenged on appeal, we must determine

"'whether, after viewing the evidence in the light most favorable to the [State], any rational trier

of fact could have found the essential elements of the crime beyond the reasonable doubt.' "

(Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to the

trier of fact and does not retry defendant on appeal. People v. Smith, 318 Ill. App. 3d 64, 73

(2000). It is within the province of the trier of fact "to assess the credibility of the witnesses,

determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the

evidence." Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any

possible explanation compatible with defendant's innocence and elevate it to the status of

reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will

not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242

(2006). A reviewing court must allow all reasonable inferences from the record in favor of the

State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be

reversed "unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt

as to defendant's guilt." Graham, 392 Ill. App. 3d at 1009.

¶ 32 A person commits first-degree murder when, in performing the acts which cause the

death of an individual, (1) he either "intends to kill or do great bodily harm to that individual or

another, or knows that such acts will cause death to that individual or another"; or (2) "he knows

that such acts create a strong probability of death or great bodily harm to that individual or

another." 720 ILCS 5/9-1(a)(1), (2) (West 2008); People v. Jones, 376 Ill. App. 3d 372, 383

(2007).

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¶ 33 At trial, the State prosecuted its case against defendant for first-degree murder under a

theory of accountability. A person is legally accountable for the criminal conduct of another

when, "[e]ither before or during the commission of an offense, and with the intent to promote or

facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in

the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 2008).

¶ 34 To prove that a defendant had the intent to promote or facilitate the crime, the State must

present evidence that establishes, beyond a reasonable doubt, "that (1) defendant shared the

criminal intent of the principal or (2) there was a common criminal design." People v. Willis,

2013 IL App (1st) 110233, ¶ 79. In the case at bar, the State does not argue that defendant

shared the criminal intent of the person who shot Lee. Rather, the State advanced its case on the

theory that there was a "common criminal design" by which defendant showed the intent to

promote or facilitate the killing of Lee. The common design rule holds that "where two or more

persons engage in a common criminal design or agreement, any acts in the furtherance of that

common design committed by one party are considered to be the acts of all parties to the design

or agreement and all are equally responsible for the consequences of the further acts." In re

W.C., 167 Ill. 2d 307, 337 (1995). "Words of agreement are not required to prove a common

design or purpose between codefendants; a common design may be inferred from the

circumstances surrounding the crime." Willis, 2013 IL App (1st) 110233, ¶ 79. "Evidence that a

defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its

design supports an inference that he shared the common purpose and will sustain his conviction

for an offense committed by another." In re W.C., 167 Ill. 2d at 338. "A conviction under

accountability does not require proof of a preconceived plan if the evidence indicates

involvement by the accused in the spontaneous acts of the group." People v. Cooper, 194 Ill. 2d

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419, 435 (2000). "In determining a defendant's legal accountability, the trier of fact may

consider defendant's presence during its commission, defendant's continued close association

with other offenders after its commission, defendant's failure to report the crime, and defendant's

flight from the scene." Willis, 2013 IL App (1st) 110233, ¶ 79. Absent other circumstances

indicating a common design, presence at the scene and flight therefrom do not constitute prima

facie evidence of accountability; however, they do constitute circumstantial evidence which may

tend to prove and establish a defendant's guilt. Willis, 2013 IL App (1st) 110223, ¶ 79 (quoting

People v. Foster, 198 Ill. App. 3d 986, 993 (1990)). A defendant may be found guilty under an

accountability theory even though the identity of the principal is unknown. Cooper, 194 Ill. 2d

at 435.

¶ 35 With regard to the intent element of accountability under the facts of this case, we find

that the State failed to establish that there existed a common criminal design between defendant

and the multitude of armed partygoers who participated in the shooting melee that ended in Lee's

death. There was evidence that many men in the crowd, including, but not necessarily limited to,

defendant and his friends, were armed with guns. The scene was described as chaotic once the

shooting started. There is also evidence that Lee was alive when the shooting started. In

defendant's videotaped statement, he claims that Keevo accidentially shot Lee. The State never

embraced that evidence. The State argued instead that Lee's killer was unknown. At trial, the

State presented evidence that defendant and a "whole crowd of boys," engaged in a verbal and

physical altercation with Iesha and her friends, including "baby daddy." Moments later gunfire

erupted. It is unclear where that gunfire originated. The State's evidence revealed that at some

point, defendant shot at Iesha and Elaina as they fled southbound on South Keeler Avenue. It is

unclear from the evidence when Lee was shot. Tytianna testified that she heard about 25 to 30

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gunshots fired from multiple guns during the melee, and observed Pooh Bear shooting a gun in

the air. Trial testimony also established that there were hundreds of people at the party and that

many, if not most of the men, were armed with guns. There was no evidence that the multitude

of armed men were all members of defendant's "crew." There was also evidence that at least 26

shell casings, a fired bullet, and a bullet jacket were found at the scene. However, given the

amount of shooting, it can be inferred that there were revolvers in the mix as well. The State's

evidence technician, Balcerzak, testified that revolvers would not leave behind shell casings after

being fired. In other words, it is impossible to know how many guns were at the party and who

was firing them.

¶ 36 Defendant makes a reasonable argument which the State has not addressed satisfactorily.

Specifically, defendant argues that it is insufficient to show that multiple illegal acts occurred in

the same vicinity without showing the common link between or among the actors. In the case at

bar, a theory of accountability for Lee's murder under these facts, presented significant

evidentiary challenges for the State.

¶ 37 The State has conceded that its theory of accountability is not based on a common

criminal intent between the shooter and defendant. Therefore, the State was required to show

that there was a common criminal design between defendant and the shooter who killed Lee.

The State was required to do so under the facts of this case. Consequently, defendant is able to

make a convincing argument that the State charged him with the wrong crime or "overcharged"

him with the murder of Lee.

¶ 38 It is undisputed that there was evidence that defendant fired shots at Iesha. Yet, that is

not the crime for which the State chose to charge and try defendant. Inexplicably, the State

chose to try defendant for the murder of Lee on a theory of accountability, when the evidence did

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not provide proof of either a shared criminal intent (which is conceded) or a common criminal

design. We note that the State has complete discretion to determine the charge or charges that

will be levied against a defendant. It is also the State's responsibility to ensure that the facts and

the proof required to meet the burden beyond a reasonable doubt, are consistent with the crime

charged. In this case the State has failed to do so. Thus, at most, we find that the State's

evidence showed that an unidentified person killed Lee, but that defendant shot at Iesha and

Elaina. Therefore, in order to establish a "common criminal design," the State must prove

beyond a reasonable doubt that the unknown shooter was a part of defendant's alleged criminal

design to shoot Iesha and her friends, but instead killed Lee while he was acting in furtherance of

the plan that he and defendant had in common. Although defendant claimed in his videotaped

statement that Keevo, Pooh Bear, and Pee Wee fired their guns in retaliation against Iesha and

her friends, those shots were described as being discharged after Lee had already been shot and,

thus, could not be a basis for proving accountability for the shooting. See 720 ILCS 5/5-2(c)

(West 2008) (a person is legally accountable for the criminal conduct of another when, "[e]ither

before or during the commission of an offense, and with the intent to promote or facilitate such

commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning

or commission of the offense"). No evidence was presented by the State that anyone other than

defendant shot at Iesha or Elaina. Although someone in the group of "boys" yelled, "[s]hoot

them ho's, [s]hoot them ho's," that person was never identified and there was no evidence that

any one in that group fired a gun. Aside from defendant, the only other person identified by a

witness at trial as having shot a gun was Pooh Bear, who fired into the air. Thus, we find that the

State could not prove beyond a reasonable doubt that anyone belonging to defendant's group of

"homies," fired gunshots at Iesha and her friends and shot Lee instead.

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¶ 39 Even assuming, arguendo, that the State's evidence did show that other persons

participated in defendant's criminal design to shoot Iesha and her friends, no direct or

circumstantial evidence established that any one of those participants was the shooter who killed

Lee. While it was undisputed that defendant was present at the crime scene, and evidence

showed that defendant and his friends were armed at the party, the evidence was insufficient to

prove that the unidentified shooter was a member of defendant's alleged criminal design to shoot

Iesha and her friends but instead killed Lee unintentionally while acting in furtherance of the

plan. As discussed, hundreds of people attended the party, where most of the men were armed

and not all of them belonged to defendant's "crew," and forensic evidence recovered from the

scene revealed that at least 28 gunshots from seven different firearms had been fired during the

shooting—yielding the possibility of numerous unknown potential shooters who may or may not

have been associated with defendant. The police only recovered one out of the seven firearms

during their investigation. Because the fatal bullet that struck Lee had exited his body, its caliber

remained unknown and it could not be traced to a particular weapon or shooter.

¶ 40 We note that individuals committing crimes in the vicinity of each other cannot

automatically be held accountable for each other's criminal acts. Rather, where there were

multiple shooters at the party, the State must show that Lee's unidentified shooter shared in

defendant's alleged criminal design thereby establishing the "common" link between them. See

Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991) (reversing accountability murder

conviction on the basis that the trial court "assumed," absent any evidence, "that the bullet that

killed [the victim] must have come from a gun fired by one of the [members from defendant's

gang]"). Absent this showing, it is not difficult to imagine other scenarios by which Lee was

shot. For example, someone who had a personal grudge against Lee, could have used the chaos

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and confusion of the brawl and shoot-out at the party as a convenient pretext to shoot him with

minimal risk of detection. See id. at 1159. Based on the evidence, we find that the State has not

established a factual link between the bullet that killed Lee and any shooter in general, let alone

any shooter sharing an alleged common criminal design with defendant to shoot Iesha and her

friends.

¶ 41 The State cites People v. Terry, 99 Ill. 2d 508 (1984) and People v. Kessler, 57 Ill. 2d 493

(1974), in support of its arguments that the evidence was sufficient to convict defendant of

murder on a theory of accountability. However, we find these cases to be distinguishable from

the facts in the case at bar, where neither Terry nor Kessler involved an unknown principal, and

the perpetrator in each of those cases shared in a common criminal design with defendant. See

Terry, 99 Ill. 2d at 517-18 (evidence sufficient to find defendants guilty of murder on a theory of

accountability, where codefendant Myers stabbed the victim while they were committing battery

against him); Kessler, 57 Ill. 2d at 499 (evidence sufficient to convict defendant of attempted

murder, where defendant told two companions where he had seen large sums of money and

remained inside the car while the two companions burglarized the premises and shot the tavern

owner and a police officer during the burglary). Unlike Terry and Kessler, evidence at trial in

the instant case failed to establish that the unidentified shooter was a member of defendant's

alleged criminal design and that he was acting in furtherance of defendant's plan to shoot Iesha

and her friends or anyone else, when he unintentionally shot Lee. Thus, we find that the State

failed to prove beyond a reasonable doubt that there was a common criminal design between

defendant and Lee's killer, so as to establish defendant's intent to promote or facilitate the crime.

See People v. Perez, 189 Ill. 2d 254, 269 (2000) (holding that there was insufficient evidence

that defendant shared gang member/shooter's criminal intent, or that he was engaged in a

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common criminal design, to support a murder conviction on an accountability theory).

Therefore, we hold that the evidence was insufficient to convict defendant of first-degree murder

under an accountability theory.

¶ 42 We note that it is quite possible that defendant could have been successfully prosecuted

for murder under a different theory, such as felony murder predicated upon mob action, or could

have been prosecuted for the attempted murder of Iesha. However, the State chose to charge

defendant with first-degree accountability murder and "must live with the consequences of

having proceeded on a theory that it could not establish with the certitude required in criminal

cases." Fagan, 942 F.2d at 1160. Accordingly, we reverse defendant's first-degree murder

conviction and vacate his sentence on this conviction.

¶ 43 We next determine whether the State offered evidence that could prove beyond a

reasonable doubt that defendant was an AHC in light of McFadden. Specifically, defendant

asserts that the State did not prove the required predicate offenses because his prior AUUW

conviction was void.

¶ 44 Outside the presence of the jury at trial, the State introduced into evidence two certified

copies of defendant's previous convictions: (1) a certified copy of a January 9, 2007 felony

conviction for possession of a controlled substance with intent to deliver, in violation of section

401(d)(1) (720 ILCS 570/401(d)(i) (West 2006)) (case No. 06 CR 2687101); and (2) a certified

copy of a February 1, 2002 felony conviction for aggravated unlawful use of a weapon (AUUW),

in violation of section 24-1.6(a)(1) (720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No. 01 CR

1233801). During jury deliberations, the trial court conducted a simultaneous bench trial and

found defendant guilty of being an AHC. In sentencing defendant for first-degree murder, the

trial court imposed a concurrent 20-year sentence for the AHC conviction.

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¶ 45 We first review the McFadden decision. McFadden concerned a direct appeal from a

UUWF conviction, based on the defendant’s possession of a firearm when he had previously

been convicted of AUUW. McFadden defendant’s prior AUUW conviction was based on the

AUUW statutory provision found to be unconstitutional in Aguilar. See Aguilar, 2013 IL

112116 (concluding that the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1),

(a)(3)(A), (d) (West 2008)) was unconstitutional because it violated the second amendment right

to bear arms). Similar to the defendant's argument regarding the AHC offense in this case, the

defendant in McFadden argued that Aguilar prevented use of the prior AUUW conviction to

serve as a predicate offense for the UUWF charge.

¶ 46 On appeal, this court agreed with the McFadden defendant and vacated his UUWF

conviction. People v. McFadden, 2014 IL App (1st) 102939. However, the supreme court

reversed, reasoning that the defendant’s felon status was unaffected by Aguilar; thus, unless the

prior conviction was vacated, the prior conviction precluded the defendant from legally

possessing a firearm. McFadden, 2016 IL 11724, ¶ 31 (“Although Aguilar may provide a basis

for vacating defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn

that judgment of conviction. Therefore, at the time defendant committed the UUW by a felon

offense, defendant had a judgment of conviction that had not been vacated and that made it

unlawful for him to possess firearms.").

¶ 47 The supreme court in McFadden relied largely on the United States Supreme Court's

holding "that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm

prior felony conviction could be used by the government as the predicate felony." Id. ¶ 22

(citing Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis'

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reasoning in holding that an AUUW conviction subject to vacatur under Aguilar may still serve

as a predicate for a UUWF conviction.

¶ 48 In McFadden, the supreme court recognized that "the fact of a felony conviction without

any intervening vacatur or other affirmative action to nullify the conviction triggers the firearms

disability" (McFadden, 2016 IL 117424, ¶ 24) and applied this reasoning to the UUWF statute,

which prohibited possession of a firearm by any person who " 'has been convicted of a felony

under the laws of this State or any other jurisdiction.' " Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a)

(West 2008)). The supreme court reasoned that the UUWF statute "requires the State to prove

only the defendant's felon status" and did not suggest "any intent to limit the language to only

those persons whose prior felony convictions are not later subject to vacatur." (Internal

quotation marks omitted.) Id.

¶ 49 Defendant's supplemental briefing makes two primary arguments attempting to

distinguish McFadden from his case, which concern the use of the same prior AUUW felony as a

predicate for the AHC offense. The defendant's primary argument is that the AHC statute is

distinguishable from either the UUWF statute at issue in McFadden or the federal statute at issue

in Lewis, such that McFadden should not apply to support an AHC conviction based on the form

of AUUW invalided by Aguilar. The defendant emphasizes that the UUWF offense merely

requires proof of the defendant's felon status, based on any prior felony. See 220 ILCS 5/24-

1.1(a) (West 2012). He argues that this generic "felon status" principle was the basis for

McFadden's holding that a prior unconstitutional AUUW conviction could serve as a predicate

offense for UUWF.

¶ 50 In contrast to the status crime of UUWF, he urges that the AHC statute punishes

particular conduct because it enumerates specific offenses that can serve as the predicate

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felonies. He urges that the AHC statute does not present the sort of broad sweeping firearm

disability imposed by the UUWF statute at issue in McFadden, or the federal statute at issue in

Lewis. Thus, he claims that the reasoning in those decisions does not apply here. Notably,

virtually identical arguments were considered and rejected by this court in People v. Perkins,

2016 IL App (1st) 150889 and People v. Faulkner, 2017 IL App (1st) 132884. Those cases

concluded that McFadden's logic applies to allow a prior AUUW conviction, premised on the

statutory provision held invalid in Aguilar, to serve as a predicate for an AHC conviction. We

reach the same conclusion in this case.

¶ 51 The second argument raised by the defendant opposing the application of McFadden has

also been repeatedly rejected by our court. Specifically, the defendant asserts that United States

Supreme Court precedent, including Montgomery v. Louisiana, 577 U.S. ____, 136 S. Ct. 718

(2016) and Ex parte Siebold, 100 U.S. 371 (1880) precludes the use of a prior conviction,

premised on a statute later held unconstitutional, as a predicate for the AHC offense. He argues

that this precedent undercuts McFadden, which contains no discussion of Montgomery or

Siebold. As we have before in other recent opinions, we reject the defendant's attempt to argue

that McFadden's reasoning cannot apply to an AHC conviction. Faulkner, 2017 IL App (1st)

132884; Perkins, 2016 IL App (1st) 150889.

¶ 52 The defendant asserts that Montgomery and other United States Supreme Court decisions

establish "that States cannot punish citizens, whether directly or collaterally, under a law that is

facially unconstitutional." He asserts that our supreme court's decision in McFadden, and our

court's decision in Perkins, violate this principle by holding that a facially unconstitutional

conviction for AUUW may still be used as a predicate for a separate offense until the prior

conviction is vacated. In essence, he argues that his conduct leading to the prior AUUW

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conviction was legal behavior in light of Aguilar, such that the AUUW conviction was void and

cannot serve as a predicate offense.

¶ 53 This court has rejected the argument (repeated by the defendant in this case) that our

supreme court's decision in McFadden violates the holding in Montgomery:

"Perkins contends that our supreme court 'ignored' the

decision in Montgomery. But as the State points outs, prior to oral

argument in McFadden, counsel sought and was granted leave to

cite Montgomery as additional authority. In that motion, counsel

advanced the same arguments presented here. In response, the

State argued, as it does here, that Montgomery posed no

constitutional impediment to affirmance of defendant's UUWF

conviction given that defendant was not seeking to vacate his prior

conviction ***, but instead was challenging his status as a

convicted felon at the time of his trial. The State argued that in

this context, Lewis v. United States [citation], which held that a

defendant's failure to vacate a prior felony conviction on grounds

that it was unconstitutional was fatal to a challenge to a felon-in-

possession conviction, controlled. We agree with the State.

At the time of Perkins' armed habitual criminal conviction,

he had prior UUWF and AUUW convictions. Because those

convictions had not been vacated at the time Perkins possessed a

firearm ***, they could properly serve as the predicates for his

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armed habitual criminal conviction." Perkins, 2016 IL App (1st)

150889, ¶¶ 9-10.

¶ 54 It is undisputed that, at the time of the defendant's AHC conviction, he had two prior

convictions for qualifying predicate offenses. As those convictions had not been vacated at the

time of the defendant's November 2011 arrest, they could properly serve as predicate convictions

for his AHC conviction. See, e.g., McFadden. We conclude, therefore, that the defendant's

AHC conviction could be based, in part, on a prior AUUW conviction stemming from the

statutory provision held unconstitutional in Aguilar.

¶ 55 As we have reversed the first-degree murder conviction due to insufficient evidence, we

need not reach the merits of defendant's contention that the court erred in adding a 20-year

firearm enhancement to that conviction. We remand for the trial court to resentence defendant on

the AHC conviction only.

¶ 56 CONCLUSION

¶ 57 For the foregoing reasons, we reverse the first-degree murder conviction, affirm the AHC

conviction, and remand for resentencing on the AHC conviction.

¶ 58 Affirmed in part and reversed in part.

¶ 59 Remanded for resentencing.

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