People v. Lee

2018 IL App (1st) 162563

THIRD DIVISION

December 28, 2018

No. 1-16-2563

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 14 CR 11997
)
BILL LEE, ) Honorable
) Matthew E. Coghlan,
Defendant-Appellant. ) Judge Presiding.

JUSTICE HOWSE delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith concurred in the judgment and opinion.
Justice Ellis specially concurred, with opinion.

OPINION

¶ 1. Following a jury trial, the circuit court of Cook County convicted defendant, Bill Lee, of

defacing identification marks of a firearm, aggravated unlawful use of a weapon (AUUW) based

on not having a currently valid license under the Firearm Concealed Carry Act, and aggravated

unlawful use of a weapon based on not having a currently valid firearm owner’s identification

card. At defendant’s trial, the court instructed the jury that the State was required to prove

defendant knowingly possessed the firearm, but over defendant’s objection, the court instructed

the jury the State was not required to prove defendant had knowledge of the defaced serial

number. On appeal, defendant argues the State did not provide sufficient evidence to prove

beyond a reasonable doubt defendant knowingly possessed a firearm with defaced serial number

and the trial court erred when it failed to instruct the jury the State was required to prove

defendant knew the firearm’s serial number was defaced. Alternatively, defendant argues he was

deprived of a fair trial when the court answered a question from the jury and when the State
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introduced prejudicial testimony into evidence. For the reasons that follow we reverse the

judgment of the trial court and remand for a new trial.

¶ 2. BACKGROUND

¶ 3. The State indicted defendant for the offense of defacing identification marks of a firearm

and two counts of aggravated unlawful use of a weapon. Prior to trial, defendant filed a motion

in limine to prevent any reference to defendant being involved in a gang or gang activity, which

the State did not object to. Defendant’s motion also sought to preclude any reference to the

location of defendant’s arrest being a high crime area. The trial court allowed the State to elicit

evidence that officers were in the location of defendant’s arrest to investigate drug sales, but not

to offer a blanket statement that it was a high crime area. After opening arguments, the State

presented its case in chief.

¶ 4. I. Testimony of Officer Ricky Hughes

¶ 5. Officer Ricky Hughes testified that he was conducting surveillance for a controlled drug

buy on the morning of June 15, 2014. Officer Hughes was working with a supervisor, five

additional surveillance officers, and two officers working enforcement. While conducting

surveillance, Officer Hughes saw a black Toyota Camry with tinted windows repeatedly drive

down the block, past a McDonald’s restaurant, without parking. Officer Hughes wrote down the

license plate number of the Camry and saw the same vehicle pass him three times driving in the

same manner of slowing to a near stop in the middle of the block, continuing southbound, and

turning westbound. Officer Hughes radioed his partners to inform them the black Camry was

driving suspiciously. The fourth time the Camry passed by, Officer Hughes saw that it was

followed by a tan Ford 500, and he decided to leave his fixed surveillance and follow the

vehicles. After the cars turned westbound, the rear passenger window of the Camry lowered, and

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a passenger put their arm out of the window and pointed to an area by the curb. The Ford pulled

over and parked where the arm pointed for him to park. The Camry continued westbound and

Officer Hughes followed, passing the parked Ford. Officer Hughes’ partners communicated to

him on the radio that they were set up watching the tan Ford. Eventually the Camry returned to

where the Ford was parked and pulled up alongside it. After a few minutes, the Camry

continued driving and the Ford followed behind. Officer Hughes followed the cars for about one

mile and radioed his team members so that they could maintain mobile surveillance. After a

mile or so, Officer Hughes stopped following and another officer radioed that he was following

the Camry and Ford. When the Camry and Ford stopped, the officers set up fixed surveillance of

the vehicles. Officer Hughes heard over the radio that some men exited the vehicles and two of

the men removed handguns from the trunk, and he began driving toward the parked cars. He

saw two individuals running and followed them in his car. After turning into an alley and exiting

the vehicle, Officer Hughes saw the individuals jump a fence and run back toward the parked

cars. Officer Hughes radioed his team members that the men were running back to the parked

cars. Officer Hughes returned to his vehicle to put on his bulletproof vest when he saw

defendant and another person running toward him in the alley. Officer Hughes drew his weapon

and ordered them to stop, and they complied. Officer Hughes testified that defendant was

wearing a white baseball shirt with blue sleeves. On cross-examination, Officer Hughes testified

that he first observed defendant when defendant was running toward him in the alley, and that he

had not seen defendant in either vehicle. Officer Hughes did not recover any weapons from

defendant and did not see either the Camry or the Ford make any traffic violations.

¶ 6. II. Testimony of Officer Mike Heinzel

¶ 7. On the morning of June 15, 2014, Officer Mike Heinzel was working as an enforcement

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officer on a team conducting narcotics investigation. Officer Heinzel was in an unmarked squad

car, wearing a marked police vest. He heard on the radio that Officer Hughes was following a

black Toyota Camry and tan Ford sedan, and he followed a short distance behind for security.

Eventually Officer Heinzel heard on the radio that two men put guns in their waistbands, and he

drove to where the Camry and Ford were parked. Several men were standing near the parked

vehicles. As Officer Heinzel arrived and opened his door, the men immediately ran away.

Officer Heinzel saw defendant run away, and lost sight of defendant until defendant came back

over a gate near where the vehicles were parked. Defendant and another man were 25 feet away

from Officer Heinzel when he saw them exit the gangway. Officer Heinzel had a full frontal

view of defendant as defendant exited the gangway. Defendant was wearing a white baseball

shirt with blue sleeves, though Officer Heinzel could not remember what kind of pants defendant

was wearing. Defendant had a gun in his hand when he came out of the gangway and saw the

officers before he dropped the gun to his left and ran back away from the officers. The man with

defendant also came to the gate at the gangway, hopped the gate, and threw a gun over the gate.

Officer Heinzel then went to retrieve the guns while his partner, Officer Goins, gave chase.

¶ 8. Officer Heinzel saw a small black revolver where he witnessed defendant toss a gun, and

a silver handgun on the other side of a chain link gate. Officer Santiago arrived on the scene,

and she recovered the black revolver while Officer Heinzel recovered the silver handgun.

Officer Santiago handed the black revolver to Officer Heinzel, who inspected the weapon and

unloaded it. He discovered both guns had been loaded with five live rounds each. Officer

Heinzel then put the guns in separate pockets and the ammo from each gun in separate pockets as

well. He inventoried them when he arrived at the police station later. When inventorying the

weapons, Officer Heinzel saw that the serial number was damaged on both guns.

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¶ 9. III. Testimony of Officer Joseph Serio

¶ 10. Officer Joseph Serio testified that he is an evidence technician working in the Chicago

police department firearms laboratory. Officer Serio inspected the black revolver recovered by

Officer Heinzel. Officer Serio testified that the revolver was a .38 special Smith and Wesson

model 37-2 with five live cartridges. The revolver had scratches and marks along the serial

number at the butt of the weapon “consistent with an attempt to obliterate the serial number

using some type of small punch or hand tool.” Officer Serio was able to fully read the serial

number on the weapon after he cleaned the revolver and used a piece of fine sand paper to

remove the debris caused by the scratches. On cross-examination Officer Serio testified that it is

possible for a handgun to receive abrasions and scratches on the serial number through normal

wear and tear, but that the markings on this revolver were not consistent with general wear and

tear. The markings appeared to be intentional.

¶ 11. Officer Serio testified there were two kinds of ammunition recovered with the revolver:

three full metal jacket bullets and two hollow point bullets. Officer Serio was asked “What is a

hollow point bullet?” and he testified a “hollow point is designed to expand on contact with its

target. *** It’s designed to potentially do more damage to the target. They’re also used for law

enforcement purposes in aircraft type situations where they do not want to penetrate completely

their target.” The prosecutor asked Officer Serio to show the two types of bullets to the jury “so

they can see the difference.” Officer Serio stated: “Hollow points, it’s hollowed on the inside

when it---it’s hollow in the center and when it hits the target, it opens up.” The prosecutor asked

Officer Serio to “describe for the ladies and gentlemen of the jury what that bullet looks like

once it’s opened up?” Officer Serio responded to that question as follows: “Similar to a

mushroom or a flower depending on the target it hits, they’ll be—normally they’re some sharp

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edges. It’s designed to do more damage to its target.” The prosecutor asked Officer Serio to

“compare the circumference of the hollow point bullets once it opens up to something?” He

testified: “The .38 Special is consistent probably with a size of a nickel when it opens up but it’s

not going to be consistently round. It’s going to open up. There’s going to be fragments because

they’re sharp edge.” The prosecutor asked for a moment, and when questioning resumed,

Officer Serio was asked what a full metal jacket bullet does when it hits its target. Officer Serio

testified the full metal jacket generally stays intact and does not expand. The defense did not

object to any of the questions or answers during the State’s direct examination of Officer Serio.

¶ 12. On cross-examination, Officer Serio testified that he did not know what caused the

abrasions on the serial number or how long those abrasions had been there. The weapon had

been produced from approximately 1994 to 2006. He testified that it was possible the marks on

the firearm could have been made by normal wear and tear, although it was his opinion that the

damage was caused by some type of small tool.

¶ 13. IV. Testimony of Officer Ducar

¶ 14. Officer Ducar testified that on the morning of June 15, 2014, he was working as a

surveillance officer for the narcotics division with a team of officers. Based on information he

received from Officer Hughes, Officer Ducar began mobile surveillance of a tan Ford 500.

Officer Ducar was in plainclothes in a covert vehicle with nothing to identify him as a Chicago

police officer. After following the Ford, he saw it park across from a black Toyota Camry. Two

people exited the Ford and three people exited the Camry. As the people exited the Camry, the

trunk of the car popped open. Officer Ducar testified he was parked about 75 feet away when he

saw defendant exit the driver’s seat of the Camry and walk toward the trunk of the car. He saw

defendant reach into the trunk, remove a black firearm, and place the firearm in his waistband.

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Another man reached into the trunk and pulled out a silver handgun. Officer Ducar could not see

inside the trunk of the Camry from his vantage point. When Officer Ducar saw his team

members arrive on the scene, defendant fled with another man. Officer Ducar did not see any of

the people who got out of the vehicles throw anything to the ground while they were running.

Defendant ran in Officer Ducar’s direction before rounding the corner and heading down an alley

when Officer Ducar lost sight of defendant. Officer Ducar did not see anything in defendant’s

hands when he saw defendant running. After pursuing a different person who he couldn’t catch,

Officer Ducar returned to enter the alley where he had lost sight of defendant and saw that

defendant had been detained by other officers.

¶ 15. V. Testimony of Officer Robert Goins

¶ 16. Officer Robert Goins testified that on the morning of June 15, 2014, he was working as

an enforcement officer on a narcotics unit along with Officer Heinkel. Based on information

Officer Ducar relayed on the radio, Officers Goins and Heinkel relocated to where the black

Toyota Camry was parked with five people standing near it. As the officers approached the

Camry and exited their vehicle, four of the five men standing by the Camry fled. Officer Goins

observed defendant was one of the individuals who fled. Officer Goins lost sight of defendant

after defendant turned a corner. He saw defendant again, less than a minute later, exiting a

gangway. At that time, Officer Goins observed “defendant toss a dark colored firearm.” Officer

Goins was about 20 to 30 feet away at the time. Immediately following defendant was another

individual who tossed a silver colored firearm to the ground. Officer Goins gave chase after

seeing the two men toss the weapons. The two were chased into an alley where Officer Hughes

was waiting and defendant and the other man were detained. Defendant was taken to the police

station.

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¶ 17. At the police station, Officer Goins again saw defendant. He and Officer DiFranco spoke

with defendant. Officer Goins advised defendant of his Miranda rights using a preprinted form

from the Fraternal Order of Police. Officer Goins then asked defendant if he had defaced the

firearms. Defendant replied that they had bought the gun already defaced. No audio or video

recording was made of the conversation. Officer Goins memorialized the statement later in his

case report from his own memory. Defendant was not asked to write a statement or sign Officer

Goins’ report.

¶ 18. Officer Goins testified that although he was not working surveillance on June 15, 2014,

he had not received any information regarding defendant or that defendant had anything to do

with any narcotics transactions. Officer Goins did not see defendant remove a firearm from his

waistband; the gun was already in defendant’s hand when Officer Goins saw defendant toss it to

the ground. Officer Goins had no knowledge that the guns had been defaced when he saw

defendant throw the black handgun to the ground. No audio or video recordings were made

during the officers’ surveillance on June 15, 2014.

¶ 19. The State rested its case in chief and defendant made a motion for directed finding, which

was denied. The parties then stipulated that defendant had never been issued a firearm concealed

carry license, and that defendant had never been issued a firearm owner’s identification card.

¶ 20. VI. Jury Instructions

¶ 21. The trial court then held a jury instruction conference. The Criminal Code of 2012

(Criminal Code) defines the offense of defacing identification marks of a firearm as follows:

“(a) Any person who shall knowingly or intentionally change, alter, remove or

obliterate the name of the importer’s or manufacturer’s serial number of any

firearm commits a Class 2 felony.

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(b) A person who possesses any firearm upon which any such importer’s or

manufacturer’s serial number has been changed, altered, removed or obliterated

commits a Class 3 felony.” 720 ILCS 5/24-5 (West 2016).

Defendant objected to the use of IPI Criminal No. 18.24, modified, arguing that the “knowing

possession” must attach not only to the possession of the firearm, but also to the defacement of

the firearm’s serial number. The State argued it only had to prove defendant knowingly

possessed a firearm that was defaced, and Illinois law did not require the State to also prove that

defendant knew that the firearm was defaced. The court found that under People v. Falco, 2014

IL App (1st) 111797, ¶ 18, and People v. Stanley, 397 Ill. App. 3d 598, 609 (2009), the statute

was clear that the State only had to prove defendant knowingly possessed the firearm and that the

firearm’s serial number was altered, obliterated, or removed. Defendant did not object to any

other jury instruction.

¶ 22. VII. Defendant’s Testimony

¶ 23. Defendant testified he had never been arrested before, had never been charged with a

crime before, and had a bachelor’s degree in health and physical education from Oklahoma

Panhandle State University. On the morning of June 15, 2014, defendant was in Chicago driving

a gray Toyota Camry with defendant’s brother in the back seat and another passenger in the front

seat who they were dropping off from staying the night before. Defendant was wearing blue

jeans and a white baseball shirt with blue sleeves. As defendant pulled out of a McDonald’s, he

encountered a tan Ford 500. Defendant pulled back around the block and defendant’s brother

lowered the window and indicated to the people in the Ford to go back and meet up. After

parking, the five people exited the vehicles and were having a conversation for five minutes

before a car came speeding down the block. As the car approached the group, everybody began

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to run.

¶ 24. Defendant testified that he did not handle a firearm while standing outside the cars and

then running. He testified that he did not own a firearm, that he did not possess a firearm on

June 15, 2014, and that he did not throw a firearm. Defendant testified that he did not possess a

valid firearm owner’s identification card and that he did not possess an Illinois concealed carry

license. Defendant stated that he did not feel he needed either because he had no intention of

owning a gun. Defendant testified that he ran away when the car came speeding toward his

group because he did not know what was going on and did not want to stand around while

everyone else ran off. Defendant testified he did not see the other individuals he was with

possess any firearms.

¶ 25. When defendant ran into an alley he saw an officer putting on a bulletproof vest.

Defendant then stopped and was detained by the officer. After defendant was taken to the police

station, defendant was questioned by police. Defendant testified that he was asked if they were

about to conduct a robbery or deal drugs, and defendant told police no. Defendant further

testified that he was never read his Miranda warnings and that no officer asked him about guns.

¶ 26. In closing arguments, defense counsel argued defendant credibly testified he did not

possess a firearm and that the police officers’ testimony was not credible as to seeing defendant

with a firearm because they could not have seen a small firearm from 75 feet away. Counsel also

argued Officer Heinzel could not have seen defendant dropping a gun after jumping a fence due

to the distance between them. Counsel argued it was improbable that police would only ask one

question of defendant and then not ask any follow up questions.

¶ 27. VIII. Jury Deliberation

¶ 28. After closing arguments, the trial court instructed the jury: “the State must prove the

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following proposition: That the defendant knowingly possessed a firearm upon which the serial

number has been changed, altered, removed, or obliterated.” The court also instructed the jury as

to the elements of the charges for aggravated unlawful use of a weapon.

¶ 29. At 2:50 p.m., the jury began deliberations. At 5:13 p.m. a note came from the jury

informing the court that “[they] cannot come to a unanimous decision,” and inquiring what

should be done. The court replied by instructing the jury to continue deliberations. At 5:55 p.m.

the jury sent another note that they still cannot agree and that no one had changed their minds.

The court sent a reply for the jury to keep deliberating. At 6:16 p.m. the jury sent another note

asking: “Does it matter that the defendant actually knows the identification marks are defaced on

a firearm in his possession?” The court stated to the parties that “Under the Falco case and the

Stanley case, the State must prove the knowing possession of the firearm of the defendant but

need not prove the defendant’s knowledge of the character of the firearm.” Defendant renewed

his objection, arguing that knowledge of the defacement was an element of the statute despite the

case law, and that any other reading meant that the offense de facto became a strict liability

offense. The State argued the court should provide a direct answer to the question, and

defendant argued that the jury has the law under their instructions and that no further instructions

were necessary.

¶ 30. The trial court found that the note presented a question of law that the court was obligated

to answer. The court overruled defendant’s objection and sent a note back to the jury stating

“no, the State must prove beyond a reasonable doubt the knowing possession of the firearm.

Proof of knowledge of the defacement is not required.”

¶ 31. At 7:22 p.m. the jury sent another note stating: “We are still at the same point. No one

has changed their mind and we have discussed the evidence thoroughly several times, and the

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count is ten to two.” The trial court replied: “Please continue to deliberate.” At 8:44 p.m. the

court sent the jury home for the evening with an instruction to return by 10:00 a.m. the next day

and resume their deliberations. The next morning the jury began its deliberations at 10:15 a.m.

At 1:25 p.m. the jury returned its verdict finding defendant guilty of aggravated unlawful use of a

weapon based on not having a currently valid license under the Firearm Concealed Carry Act,

guilty of aggravated unlawful use of a weapon based on not having a currently valid firearm

owner’s identification card, and guilty of defacing identification marks of a firearm.

¶ 32. IX. Post-trial Motion and Sentencing

¶ 33. Defendant’s trial counsel filed a posttrial motion for a new trial. Defendant argued that

the knowledge element the crime of defacing identification marks on a firearm applies to

knowledge of the defacement, otherwise the statute would create a strict liability offense.

Defendant also argued it was error for the State to elicit testimony from Officer Serio about the

type of ammunition in the firearm recovered by police. Defendant argued that as a result of these

claimed errors the jury was improperly prejudiced and he was denied a fair trial.

¶ 34. The trial court found “there was sufficient evidence to support the jury’s verdict.” The

court found its answer to the jury question concerning the knowledge of the defacement of a

firearm’s serial number was “an accurate recitation of the law.” The court further found that

there was no objection raised to Officer Serio’s testimony about the ammunition in the firearm,

and that if there was any error then “it was harmless error.” At sentencing, the court entered

judgment on the conviction for defacing identification marks on a firearm and merged the

judgment with the other two counts of aggravated unlawful use of a weapon. The court

sentenced defendant to 30 days in jail, with credit for time defendant already served, 100 hours

of community service, and 24 months’ probation. This appeal followed.

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¶ 35. ANALYSIS

¶ 36. Defendant argues that the State failed to prove each element of the offense of defacing

the identification marks on a firearm beyond a reasonable doubt, and that defendant was

deprived of a fair trial because the court made a mistake of law instructing the jury and allowed

inadmissible prejudicial testimony into evidence. Defendant claims his conviction should be

reversed, or, in the alternative, that we grant a new trial with different jury instructions. The

State contends it proved each element of the offense beyond a reasonable doubt, that the jury

instructions and answer to the jury’s question correctly stated the law, and that no prejudicial

testimony was introduced into evidence.

¶ 37. A. Elements of the Offense of Defacing a Firearm’s Serial Number

¶ 38. Defendant argues the State failed to prove him guilty beyond a reasonable doubt because

the State had to prove knowledge of the defacement and not simply knowledge of possession of a

firearm with defaced identification marks, and the State did not present evidence proving beyond

a reasonable doubt that defendant knew the identification markings were defaced on the firearm

he possessed. The State argues that it was not required to prove defendant knew the firearm was

defaced because the statute and case law require only that defendant knowingly possessed a

firearm and that the firearm’s identification marks were defaced when defendant possessed it.

720 ILCS 5/24-5(b) (West 2016); People v. Falco, 2014 IL App (1st) 111797, ¶ 18; People v.

Stanley, 397 Ill. App. 3d at 609.

¶ 39. We review claims contesting the sufficiency of the evidence to determine whether “any

rational trier of fact could have found the essential elements of the crime beyond a reasonable

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).

“A criminal conviction will not be set aside unless the evidence is so improbable

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or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. ***

When presented with a challenge to the sufficiency of the evidence, it is not the

function of this court to retry the defendant. As the United States Supreme Court

observed in Jackson v. Virginia, ‘the relevant question is 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 beyond a reasonable

doubt.’ The court went on to note that, ‘[o]nce a defendant has been found guilty

of the crime charged, the factfinder’s role as weigher of the evidence is preserved

through a legal conclusion that upon judicial review all of the evidence is to be

considered in the light most favorable to the prosecution.’ “ (Internal citations

omitted.) People v. Collins, 106 Ill. 2d 237, 261 (1985).

¶ 40. We find the State was not required to prove that defendant knew the firearm he possessed

was defaced, and the jury instruction did not misstate the law. Under the Criminal Code, “[a]

person who possesses any firearm upon which any such importer’s or manufacturer’s serial

number has been changed, altered, removed or obliterated commits a Class 3 felony.” 720 ILCS

5/24-5(b) (West 2016). This Court has already addressed the issue raised by defendant in

Stanley, 397 Ill. App. 3d at 609. We found that under section 5/24-5(b) of the Criminal Code,

the State is only required to prove beyond a reasonable doubt that defendant knowingly

possessed a firearm and that the firearm’s serial number was defaced. Id.

“The State, however, need not prove knowledge of the character of the firearm.

Though the defacement unmistakably bears upon the commission of the offense,

it is not an element of the offense. We find support for this interpretation in the

Committee Comments to section 4–9, explaining that: ‘[A] mental-state

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requirement should be implied as an application of the general rule that an offense

consists of an act accompanied by a culpable mental state, as expressed in 4–3.’

[Citation.]” Id.

The Stanley court found possession of the firearm was an element of the offense but not

knowledge of the defaced serial number, and that the mens rea applied to the possession not the

character of the weapon. See id.

¶ 41. The Stanley court also found support for its holding in People v. Ivy, 133 Ill. App. 3d 647,

652 (1985). Ivy was an appeal by a defendant convicted of possession of a sawed-off shotgun.

The defendant argued the State failed to prove its case because the State only showed the

defendant knew she possessed a sawed-off shotgun but did not show the defendant knew the

illegal character of the sawed-off shotgun. Id. at 652. The Ivy court held that “it was not

necessary to the defendant’s conviction that the State prove the defendant knew that possession

of a sawed-off shotgun was illegal.” Id. at 653.

“[B]ecause of the inherently dangerous nature of sawed-off shotguns and their

illegal status per se, we do not believe the legislature intended that the

unlawfulness of the defendant’s possession here should depend upon her

familiarity or lack of familiarity with the characteristics of the gun she possessed.

Rather, it was sufficient for the defendant’s conviction that she have knowledge

that she possessed the gun in question, which, because of its dangerous capacity,

was the subject of legislative enactment.” Id.

The Stanley court found that the chief evil the legislature sought to prevent in section 5/24-5(b)

was the possession of weapons with defaced identification markings.

“In adherence to the rationale of Ivy ***, we determine that the mens rea

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applicable to the charge against defendant is knowledge. Moreover, the

knowledge required applies only to the possessory component of the offense. Our

interpretation is in conformance with the legislature’s recognition of the

dangerousness posed by defaced weapons. Thus, we perceive that the mere

possession of such weapons is the evil sought to be remedied by this offense to,

inter alia, deter the possession of altered weapons.” Stanley, 397 Ill. App. 3d at

608.

¶ 42. This court has had a number of opportunities to revisit our holding in Stanley, and we

have repeatedly reaffirmed Stanley and its reasoning. In Falco, we were again faced with a

defendant contesting a conviction for possession of a firearm with defaced serial number. Falco,

2014 IL App (1st) 111797, ¶ 14. The defendant claimed the jury instruction did not correctly

state the law because the instruction failed to include the mens rea element. Id. Relying on

Stanley, we found

“that although the offense of possession of a defaced firearm does not identify a

mental state, the elements of the offense of possession of a defaced firearm are

knowledge and possession. Proof of knowledge of the defacement was not

required. Therefore, the State must prove the knowing possession of the firearm

by defendant but need not prove defendant’s knowledge of the character of the

firearm.” Id., ¶ 18.

The trial court’s instruction in this case reflects the Falco ruling that the jury must be instructed

that defendant knowingly possessed the firearm which has defaced identification marks.

¶ 43. In addition to following our ruling in Stanley in Falco, the reasoning behind both

decisions has been upheld in analogous cases dealing with knowledge of an element but not

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knowledge of characteristics. See People v. Harris, 2017 IL App (1st) 140777, ¶52.

“Stanley’s analysis, which differentiated between knowledge of the act of gun

possession from knowledge of the character of the gun, is analogous to the

situation here. We distinguish the knowledge of the act of taking a motor vehicle

by force, from the defendant’s knowledge of other circumstances, such as the

victim’s age or disability. To support a conviction for aggravated vehicular

hijacking in this case, the State only had to prove that the defendant knowingly

took the motor vehicle by force or threat of force, and that Carla was a ‘physically

handicapped person.’ 720 ILCS 5/18-4(a)(1) (West 2012). That is, the State was

not required to prove the defendant’s knowledge of Carla’s deafness to support

the aggravated form of the offense under section 18-4(a)(1). Again, we note that

had the legislature intended to impose such a knowledge requirement, it could

easily have done so by amending section 18-4 to specify a mental state for the

circumstances elevating the offense to its aggravated form.” Id.

Defendant contends that despite the prior rulings of this court, decisions by federal courts and

courts of other jurisdictions support defendant’s interpretation. However, “we need not, nor

should we, consider foreign courts’ determinations when there is substantial case law in our own

state to answer the question presented.” People v. Qurash, 2017 IL App (1st) 143412, ¶ 34. As

noted above, this court, and the legislature, has had ample opportunity to consider the issue of

knowledge attaching to the defacement of the firearm as well as its possession. This court has

consistently held that under section 5/24-5(b) the State need only prove knowledge of possession

of a gun that has defaced identification marks, and the legislature has not acted to change the

law. The State needed to prove beyond a reasonable doubt only that defendant knowingly

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possessed a firearm and that the firearm’s identification number was defaced. The court properly

instructed the jury.

¶ 44. B. The Trial Court’s Answer to a Question from the Jury

¶ 45. Defendant contends that even if the trial court provided the correct jury instructions, the

court nevertheless committed reversible error when it answered the jury’s question concerning

whether the State had to prove defendant knew the gun he possessed had a defaced serial

number. During deliberations the jury asked: “Does it matter that the defendant actually knows

the identification marks are defaced on a firearm in his possession?” Defendant argues the

circumstances were not appropriate for the trial court to answer the jury’s question because the

giving of an answer would cause, and did cause, the court to express an opinion that

impermissibly directed a verdict in favor of the State.

“Determining the propriety of the trial court’s response to a jury question

accordingly requires a two-step analysis. First, we must determine whether the

trial court should have answered the jury’s question. We review the trial court’s

decision on this point for abuse of discretion. [Citation.] Second, we must

determine whether the trial court’s response to the question was correct. Because

this is a question of law, we review this issue de novo.” People v. Leach, 2011 IL

App (1st) 090339, ¶ 16.

¶ 46. We first look to the propriety of the trial court answering the jury’s question.

“The general rule when a trial court is faced with a question from the jury is that

the court has a duty to provide instruction to the jury when the jury has posed an

explicit question or requested clarification on a point of law arising from facts

about which there is doubt or confusion. [Citation.] Nevertheless, a trial court

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may exercise its discretion to refrain from answering a jury question under

appropriate circumstances. [Citation.] Appropriate circumstances include when

the instructions are readily understandable and sufficiently explain the relevant

law, where further instructions would serve no useful purpose or would

potentially mislead the jury, when the jury’s inquiry involves a question of fact, or

where the giving of an answer would cause the court to express an opinion that

would likely direct a verdict one way or another. [Citation.] Further, the court

should not submit new charges or new theories to the jury after the jury

commences its deliberations.” People v. Millsap, 189 Ill. 2d 155, 160–61 (2000).

¶ 47. In this case the issue of whether the trial court should have responded to the jury’s

question turns on whether the court had a duty to answer. See also People v. Gray, 346 Ill. App.

3d 989, 992 (2004) (“Generally, a trial court has a duty to answer when a jury raises (1) an

explicit question (2) on a point of law (3) about which the jury indicates doubt or confusion.”).

The jury’s question here was explicit; the jury’s question was a question of law because it dealt

with the mens rea requirement and the construction of its jury instruction (Leach, 2011 IL App

(1st) 090339, ¶ 17 (“the construction of a jury instruction is a question of law”)); and the jury

expressed confusion over what the State was required to prove defendant had knowledge of. We

cannot say the trial court’s decision to answer the jury’s question was arbitrary or unreasonable,

or that no reasonable court would take the view adopted by the trial court here. Therefore, the

trial court did not abuse its discretion deciding to answer the jury’s question.

¶ 48. Turning to the propriety of the trial court’s answer, as noted above, the State was required

to prove beyond a reasonable doubt that defendant knowingly possessed a firearm and that the

firearm had a defaced serial number. Stanley, 397 Ill. App. 3d at 609, Falco, 2014 IL App (1st)

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111797, ¶ 18. Thus, the court’s answer correctly stated the law. Defendant claims the court

erred answering the jury’s question because the court’s answer deprived the jury of any

meaningful role as factfinder. We disagree. The court’s answer to the jury’s question did not

express an opinion on an issue of fact. The court’s answer simply stated that the knowledge

requirement applied to the possession of the weapon and not to the defacement of the weapon’s

serial number. Prior to the defense putting on its case, the court held arguments on which

instructions the jury would receive. Defendant objected to the instruction concerning the charge

of defacement of the identification markings of a firearm and the court ruled against defendant,

finding the State only had to prove defendant had knowledge of possessing the firearm, not

knowledge of the defaced serial number. Defendant was able to present a defense with this

knowledge and the court’s answer to the jury’s question restated the same position the court

articulated to defendant after defendant objected to the jury instruction. The court did not insert

a new matter for the jury that deprived the jury of any meaningful role as factfinder.

¶ 49. Moreover, the record affirmatively refutes that the jury’s verdict was a foregone

conclusion after the trial court’s reply to the jury’s question. After the court answered the jury’s

question, the jury continued to deliberate for about an hour when it sent a note to the court

indicating no juror had changed their vote and they were still deadlocked. That jurors continued

to deliberate for several hours after receiving the court’s answer to its question meant that jurors

still had questions about defendant’s guilt left unresolved by the court’s answer. The court’s

answer to the jury’s question did not express an opinion on whether defendant possessed the

required mental state. The court’s answer informed the jury of what the State was required to

prove beyond a reasonable doubt.

¶ 50. The court did not abuse its discretion choosing to answer the jury’s question and the

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court’s answer did not misstate the law. Stanley, 397 Ill. App. 3d at 609, Falco, 2014 IL App

(1st) 111797, ¶ 18. Therefore, the trial court did not err in providing its answer to the jury’s

question. Leach, 2011 IL App (1st) 090339, ¶ 16.

¶ 51. C. Evidence Defendant Knowingly Possessed a Firearm with Defaced Serial Number

¶ 52. Defendant argues the evidence produced at trial was not sufficient to prove beyond a

reasonable doubt that defendant knowingly possessed a firearm whose identification marks were

defaced. We disagree. The State provided evidence sufficient to prove beyond a reasonable

doubt that defendant knowingly possessed a firearm through the testimonies of Officers Ducar,

Goins, and Heinzel.

¶ 53. Officer Ducar testified that he witnessed, from 75 feet away, defendant put a black

handgun in his waistband. After officers arrived and defendant fled, Officers Heinzel and Goins

testified they witnessed defendant with a black handgun in his hand and saw defendant toss the

handgun to the ground and keep running. Officers Heinzel and Goins were both about 25 feet

away from defendant when they witnessed him holding and tossing the gun. Officer Heinzel

recovered a black revolver where he witnessed defendant toss a black handgun, and Officer Serio

testified that the revolver’s serial number was defaced. The State thus presented eyewitness

testimony that defendant possessed a handgun that had a defaced serial number.

¶ 54. Defendant argues he presented a credible account of what transpired on June 15, 2014,

and that he neither possessed a firearm at that time nor did he previously own a firearm or wish

to own a firearm. Defendant contends that the State’s evidence was improbable and

unsatisfactory, and that there remained reasonable doubt that defendant was not guilty. “[I]t is

not the function of this court to retry the defendant. *** Only where the evidence is so

improbable or unsatisfactory as to create reasonable doubt of the defendant’s guilt will a

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conviction be set aside.” People v. Hall, 194 Ill. 2d 305, 329-30 (2000). The jury heard

defendant’s testimony that he did not possess a firearm, as well as the conflicting testimony of

the police officers who arrested defendant and testified at trial they saw him discard a weapon,

and that defendant stated the weapon was already defaced when he acquired it. After

considering the various testimonies and evidence, the jury concluded that defendant possessed

the firearm and was therefore guilty of the offense of defacing the identification marks of a

firearm. “[T]he jury could properly reject defendant’s theory of innocence. Moreover, the trier

of fact is not required to disregard inferences which flow normally from the evidence and to

search out all possible explanations consistent with innocence and raise them to a level of

reasonable doubt.” Id. at 332. We cannot say that no rational trier of fact would reach the same

conclusion as the jury did here. Therefore, we reject defendant’s challenge to the sufficiency of

the evidence convicting him of defacing identification marks of a firearm. Collins, 106 Ill. 2d at

261.

¶ 55. D. Admission of Prejudicial Testimony

¶ 56. Defendant argues he was deprived of his right to a fair trial because the trial court

allowed the State to elicit prejudicial testimony. Defendant claims the State elicited testimony

from the arresting officers that defendant was arrested in a high crime area known for narcotics

trafficking, in contravention of the motion in limine the trial court granted. Defendant also

claims that Officer Serio’s testimony concerning the dangerous character of the hollow point

bullets found in defendant’s gun was unduly prejudicial. Defendant argues admission of this

evidence was so prejudicial that it deprived defendant of a fair trial and therefore constituted

reversible error. Defendant failed to object to any of the police officers’ testimony that he

complains of now. “[T]he presence of both a trial objection and a written post-trial motion

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raising the issue are necessary to preserve an issue for review.” People v. Enoch, 122 Ill. 2d 176,

186 (1988). A motion in limine does not preserve an issue for appeal where defendant fails to

object at trial. People v. Starks, 2014 IL App (1st) 121169, ¶ 56.

¶ 57. Although defendant failed to object at trial, we may nevertheless review the claims by

determining whether the claimed errors constituted plain error.

“We now reiterate that the plain-error doctrine allows a reviewing court to

consider unpreserved error when (1) a clear or obvious error occurred and the

evidence is so closely balanced that the error alone threatened to tip the scales of

justice against the defendant, regardless of the seriousness of the error, or (2) a

clear or obvious error occurred and that error is so serious that it affected the

fairness of the defendant’s trial and challenged the integrity of the judicial

process, regardless of the closeness of the evidence.” Piatkowski, 225 Ill. 2d at

565.

Defendant argues that plain error exists under the first prong of the plain-error doctrine. The

State contends the evidence at trial was not closely balanced and that the trial court did not err

admitting the testimony. The burden of persuasion is on the defendant trying to establish plain

error. People v. Herron, 215 Ill. 2d 167, 182 (2005). The first step of this analysis is to

determine whether error occurred. Piatkowski, 225 Ill. 2d at 555.

¶ 58. First, we find that defendant’s argument, that the admission of evidence regarding the

“high crime” reputation of the neighborhood where defendant was arrested constitutes plain

error, fails. Defendant contends that evidence introduced by the State at trial and discussed in its

rebuttal and closing arguments was in violation of the trial court’s order excluding any reference

to the area of the crime being a high crime area. Defendant concedes that pursuant to the trial

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court’s pre-trial ruling on his motion in limine, the “prosecutor was permitted to establish why

the team of officers [were] in the area at the time of the incident.” Defendant argues that

testimony concerning the area being known for high volume narcotics sales along with an

explanation of what a controlled buy consists of went beyond establishing why the team of

officers was in the area in violation of the trial court’s order and, as such, constitutes obvious

error. The State argues the complained of testimony was innocuous foundation for the

subsequent events and allowed the jury to understand why the officers happened to be in the

area. We agree with the State.

¶ 59. The State asked Officer Hughes about his assignment on the night of defendant’s arrest.

Officer Hughes testified the officers were “setting up in the 4th District in a location known for

high volume narcotics sales to make a controlled purchase of narcotics.” He then explained what

a controlled buy is. “A controlled buy is an undercover officer, has pre-recorded serial number

money and they go out and they try to buy drugs from someone who is selling dope on the

street.” Officer Hughes said nothing else about the area where defendant was arrested or

narcotics investigations generally. Subsequently, Officer Heinzel testified his assignment that

night was as an enforcement officer, meaning that when police “perform undercover buys, [his]

*** action is to perform the arrest and to remain close by for security.” Officer Heinzel said

nothing more about the officers’ assignment that night or narcotics activity in the area of the

arrest. Officer Ducar testified he was assigned to the narcotics division of the Chicago Police

Department. He testified that on the night of defendant’s arrest he was “surveillance officer for

the narcotics division.” Officer Goins also testified he was assigned to the narcotics unit on the

night of the arrest and that he was also working as an enforcement officer. Officer Goins

testified that he was in the area where they first saw the vehicle defendant was in “as part of a

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team investigating narcotics.”

¶ 60. The officers’ testimony in this case does not amount to other crimes evidence because the

testimony does not imply defendant “had engaged in an uncharged offense, narcotics

trafficking.” People v. Agee, 307 Ill. App. 3d 902, 904 (1999). Agree is distinguishable. In

Agee, an officer testified he was assigned to a special operations unit concentrating on narcotics

and gang weapons activity, and that the area where he encountered the defendant was a high

narcotic activity area. Id. The officer also described his narcotics investigations. Id.

Additionally, in Agee, the officer testified that the defendant and another man made a “hand to

hand transaction” which he testified means “that one of the men handed the other man an

unknown item.” Id. at 903. The officer also testified the defendant approached his police

vehicle, looked inside, then walked away. Id. The Agee court noted that “[e]vidence of crimes

for which defendant is not on trial is inadmissible if relevant merely to establish defendant’s

propensity to commit crimes. [Citation.] The rationale is that such evidence overpersuades the

jury, which is likely to convict defendant because it feels he is a bad person deserving

punishment, rather than on the basis of facts related to the offense on trial. [Citation.]” Id. at

904. The Agee court held the officer’s testimony was inadmissible, and unfairly prejudicial,

because “[a] reasonable possibility exists that the improper testimony implying defendant’s

involvement in narcotics trafficking damaged his credibility and contributed to his conviction.”

Id. at 906.

¶ 61. In Agee, the officer testified that the defendant engaged in what looked like a drug

transaction and implied the defendant approached his vehicle to sell him drugs. On the contrary,

in this case none of the officers testified to anything that would imply defendant engaged in a

drug transaction beyond the coincidence of being in the area where they were conducting their

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investigation. Nothing in the officers’ testimony implied they considered that mere presence

when deciding to follow or stop defendant. Compare In re Mario T., 376 Ill. App. 3d 468, 476­

77 (2007) (rejecting attempt to justify stop and frisk based on officer’s testimony location was a

high crime area). Moreover, the officers’ testimony in this case was brief and limited to why the

team of officers was in the area at the time of the incident. If Officer Heinzel’s testimony stating

the investigation took place in a location known for high volume narcotics sales and describing a

controlled buy was objectionable, we would not find the testimony to be so prejudicial as to have

materially contributed to defendant’s conviction. See generally People v. Walker, 259 Ill. App.

3d 98, 104 (1993). Thus, we find no plain error. See People v. Bean, 137 Ill. 2d 65, 109 (1990).

¶ 62. Turning next to the dangerous nature of the bullets recovered from the gun defendant

allegedly possessed, defendant argues the State elicited unfairly prejudicial testimony when

Officer Serio testified about the character of the bullets. “[O]therwise relevant evidence is

inadmissible ‘if its probative value is outweighed by such dangers as unfair prejudice, jury

confusion, or delay.’ [Citation.]” People v. Walston, 386 Ill. App. 3d 598, 610 (2008).

“Evidence is considered ‘relevant’ if it has any tendency to make the existence of any fact that is

of consequence to the determination of an action more or less probable than it would be without

the evidence.” People v. Illgen, 145 Ill. 2d 353, 365–66 (1991). Evidence is admissible if it is

directly probative of an element of the offense. See People v. Hester, 271 Ill. App. 3d 954, 958

(1995) (“defendant’s prior conviction was properly admitted as evidence directly probative of

that element of the offense, similar to the admission of evidence relevant to any other element of

an offense.”). Evidence is inadmissible, and its admission may be reversible error, if the has

little to no probative value and its only purpose is to stir the emotions of the jury. See People v.

Orange, 168 Ill. 2d 138, 161 (1995); People v. Iniguez, 361 Ill. App. 3d 807, 817 (2005).

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¶ 63. Defendant was charged with aggravated unlawful use of a weapon based on not having a

currently valid license under the Firearm Concealed Carry Act. 720 ILCS 5/24.16(a)(3)(A-5)

(West 2016). A defendant commits this offense if “the pistol, revolver, or handgun possessed

was uncased, loaded, and immediately accessible at the time of the offense and the person

possessing the pistol, revolver, or handgun has not been issued a currently valid license under the

Firearm Concealed Carry Act.” (Emphasis added.) Id. Officer Heinzel testified that the

revolver he recovered from where defendant tossed it was loaded with five bullets. Officer Serio

testified that he examined both the gun and the bullets. Officer Serio testified there were two

types of bullets, full metal jacket and hollow point, and that they were live rounds.

¶ 64. However, the State proceeded to elicit further testimony about the dangerous character of

the hollow point bullets. The character of the bullets is not an element of any of the offenses the

State charged defendant with violating. This testimony provided no probative value while being

highly prejudicial. There is no relationship between defendant’s charges and Officer Serio’s

testimony that hollow point bullets are designed to do more damage to their target by opening up

like a flower and are different from full metal jacket bullets because a full metal jacket bullet will

maintain its shape when fired. As its sole justification for the introduction of this evidence, the

State argues that this testimony was introduced to show motive for defendant to have “bought a

defaced, untraceable gun.” While evidence of motive can be properly introduced, when the State

undertakes to prove facts which the State asserts constitute motive for a crime charged, it must

be shown that the accused knew of those facts. People v. Smith, 141 Ill. 2d 40, 56 (1990). “This

rule seeks to avert the very real danger that through the guise of motive evidence, the State may

present to the jury highly inflammatory matter which, in actuality, is of little or no probative

value.” Id. at 57. The State introduced no facts to show defendant knew two of the bullets in the

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gun at issue were hollow point bullets or that defendant knew the dangerous nature of these

bullets. Thus, the State’s motive argument only serves to confirm the highly prejudicial and

inflammatory nature of the evidence concerning the dangerousness of hollow point bullets. See

Id. at 54-60 (finding error under the first prong plain-error doctrine where the State failed to

prove the accused knew of the facts introduced to establish motive for the crime charged having

little purpose other than to excite a suspicion of guilt in the minds of the jury). The evidence

elicited by the State regarding the dangerous nature of two of the bullets recovered from that gun

has no relevance to any of the charges against defendant, and with no probative value, this

evidence only prejudices, confuses and misleads the jury, thereby constituting clear error.

¶ 65. This finding of clear error does not end our analysis, as the next step under the first prong

plain-error analysis is to “decide whether the defendant has shown that the evidence was so

closely balanced the error alone severely threatened to tip the scales of justice.” People v. Sebby,

2017 IL 119445, ¶ 51. An error is prejudicial because it occurred in a close case where its

impact on the result was potentially dispositive. Id. ¶ 68.

“In determining whether the evidence adduced at trial was close, a reviewing

court must evaluate the totality of the evidence and conduct a qualitative,

commonsense assessment of it within the context of the case. [Citations.] That

standard seems quite simple, but the opposite is true. A reviewing court’s inquiry

involves an assessment of the evidence on the elements of the charged offense or

offenses, along with any evidence regarding the witnesses’ credibility. Id. at ¶ 53

Further, lengthy jury deliberations and jury notes during deliberations indicating that they had

reached an impasse demonstrate the closely balanced nature of the evidence in a case. People v.

Wilmington, 2013 IL 112938, ¶ 35; People v. Lee, 303 Ill. App. 3d 356, 362 (1999) (holding that

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the evidence was closely balanced under the plain error analysis based on the jury being

deadlocked for several hours and on three occasions indicating that it could not reach a

unanimous verdict); People v. Aguire, 291 Ill. App. 3d 1028, 1035 (1997) (finding a close case

under the plain-error doctrine as evidenced by the jury’s note requesting police reports and

witnesses’ statements and by the note stating that the jury was split 10 to 2). The closely

balanced standard errs on the side of fairness and will grant a new trial even where the evidence

could sustain a conviction beyond a reasonable doubt. People v. Cosmano, 2011 IL App (1st)

101196, ¶ 75; Herron, 215 Ill. 2d at 193 (“We deal with probabilities, not certainties; we deal

with risks and threats to the defendant’s rights. When there is error in a close case, we choose to

err on the side of fairness, so as not to convict an innocent person.”).

¶ 66. Defendant argues that the evidence was closely balanced because both parties presented

plausible versions of events that occurred that day. The State argues the evidence was not

closely balanced because the four officers testified credibly and consistently to a coherent

narrative of events, defendant’s testimony was uncorroborated, and defendant failed to reach the

quantum of evidence presented by the State. We reject the State’s argument.

¶ 67. A commonsense assessment of the evidence reveals that it was closely balanced. The

State presented evidence that Officers Hughes, Heinzel, Ducar and Goins testified to a narrative

of events where defendant obtained a firearm from the trunk of his car, placed the gun in his

waistband as observed by one officer, saw police and tried to get away by running through the

neighborhood, and, after seeing officers approaching him, attempted to drop the defaced firearm.

Defendant, on the other hand, contends that he, his brother and friend were leaving McDonald’s

when they ran into friends. After everyone parked, the friends got out and began talking when

another vehicle sped toward them. Defendant testified that he ran away from the vehicle because

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he was following the others in the group, did not know the area and did not want to find out who

was in the vehicle that came speeding toward his group. When defendant saw an officer he

immediately stopped running. Both versions of events are plausible. Defendant’s testimony is

also consistent with the officers’ in several ways. See People v. Stevens, 2018 IL App (4th)

160138, ¶ 73 (“In [People v.] Naylor, 229 Ill. 2d [584,] 606-07 [(2008)], our supreme court

analyzed whether the case was closely balanced because of a ‘contest of credibility.’ In that

case, the court stated the defendant’s testimony was ‘credible in that it [was] consistent with

much of the officers’ testimony and the circumstances of his arrest.’ Naylor, 229 Ill. 2d at 607”).

¶ 68. Thus, the outcome in this case depends on whether the jury found the officers or the

defendant more credible. Defendant’s account of events is no less plausible than the officers’

account, and neither version is supported by corroborating evidence. The closeness of the

evidence in the case at bar is further supported by the jury deliberations. Jury deliberations

began at 2:50 p.m. on June 29, 2014. At 5:13 p.m. the jury sent a note stating that they could not

reach a unanimous decision and requested instruction on what they should do. The jury was

instructed to continue its deliberations. At 5:55 p.m. the jury sent out a similar note indicating

they could not agree. The jury was again instructed to continue deliberating. At 6:16 p.m. a note

was sent asking for clarification as to whether the defendant must know the firearm in his

possession was defaced to which the trial court responded in the negative. The jury continued to

deliberate for another five hours and fifty-three minutes before reaching a verdict. During this

time, at approximately 7:22 p.m., the jury sent another note indicating they were still deadlocked.

The jury was instructed to continue deliberating. The jury was sent home at 8:44 pm and

returned at 10:00 a.m. the following day, June 30, 2014, at which time deliberations continued.

The jury finally reached a verdict at 1:25 p.m. after over nine hours of deliberation. As in Lee,

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the evidence should be viewed as being closely balanced where the jury was deadlock for several

hours and on three occasions indicated it could not reach a unanimous verdict. Lee, 303 Ill. App.

3d at 362.

¶ 69. Viewing the evidence in a commonsense manner in the context of the totality of the

circumstances, we conclude that the evidence in this case was closely balanced. “As our cases

clearly indicate *** prejudice rests not upon the seriousness of the error but upon the closeness

of the evidence. What makes an error prejudicial is the fact that it occurred in a close case where

its impact on the result was potentially dispositive.” Sebby, 2017 IL 119445, ¶ 68. “When there

is error in a close case, we choose to err on the side of fairness, so as not to convict an innocent

person.” Herron, 215 Ill. 2d at 193. Additionally, we find the testimony concerning the

dangerous nature of the bullets designed to inflict greater damage to its target found in the gun

could have affected the weight the jury attributed to defendant’s testimony and caused it to

render a verdict on an improper basis. We find defendant has shown clear error in a closely

balanced case and is therefore entitled to relief under the first prong of the plain-error doctrine.

Sebby, 2017 IL 119445, ¶ 64.

¶ 70. Finally, we have reviewed the evidence at trial and find it was sufficient for a trier of fact

to conclude that defendant was guilty beyond a reasonable doubt of the charges against him. We

therefore find that there is no double jeopardy impediment to a new trial. People v. Porter, 168

Ill. 2d 201, 215 (1995); People v. Taylor, 76 Ill. 2d 289, 309 (1979). We further note that we

have made no finding as to defendant’s guilt that would be binding on retrial. People v. Jones,

175 Ill. 2d 126, 134 (1997); Porter, 168 Ill. 2d at 215. Therefore, defendant’s convictions for

defacing identification markings of a firearm, and two counts of AUUW are reversed and the

cause remanded for a new trial.

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¶ 71. CONCLUSION

¶ 72. For the foregoing reasons the judgment of the circuit court of Cook County is reversed

and the cause remanded.

¶ 73. Reversed and remanded.

¶ 74. JUSTICE ELLIS, specially concurring:

¶ 75. I concur in the judgment to reverse and remand, and I concur in the majority’s reasoning

in all respects but one: I believe that the State is required to prove that the defendant knew that

the firearm he possessed was defaced. The seminal case holding otherwise, People v. Stanley,

397 Ill. App. 3d 598, 607 (2009), was wrong when it was decided and is even more obviously

wrong today, in a world where the mere possession of a firearm, without more, cannot be

constitutionally prohibited. We should say so.

¶ 76. Section 24-5(b) of the Criminal Code provides that “A person who possesses any firearm

upon which any *** serial number has been changed, altered, removed, or obliterated commits a

Class 3 felony.” 720 ILCS 5/24-5(b) (West 2016). As written, the statute thus takes the form of a

“strict” or “absolute” liability offense: It has no explicit mens rea requirement.

¶ 77. The legislature can create absolute liability for a felony, but only if it “clearly indicates”

its intent to do so. 720 ILCS 5/4-9. That intent will not be inferred from the “mere absence” of a

mens rea requirement in the statute. People v. Gean, 143 Ill. 2d 281, 286 (1991). As Stanley, 397

Ill. App. 3d at 607, correctly noted, there is no clear statement of that intent in section 24-5(b).

Thus, we must presume that the legislature did not intend to impose absolute liability for

possessing a defaced firearm.

¶ 78. To avoid absolute liability, a mens rea must be inferred into the statute. For a possessory

offense, we must infer at least a mental state of knowledge. 720 ILCS 5/4-2 (possession must be

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knowing to qualify as voluntary act, as required for criminal liability); see also Gean, 143 Ill. 2d

at 288 (“knowledge is the appropriate mental element” to infer into possessory offense). The

question is which element(s) of the statute the knowledge requirement must govern. I would hold

that the offense requires proof that defendant knew the firearm in his possession was defaced.

¶ 79. In Stanley, and cases following it, we reached the opposite conclusion, holding that

“knowledge of the character of the firearm is not required.” Stanley, 397 Ill. App. 3d at 609.

Under Stanley, it suffices to prove that the defendant knowingly possessed a firearm, and that the

firearm—whether the defendant knew it or not—was defaced. Id.; see also People v. Falco, 2014

IL App (1st) 111797, ¶ 18. A defendant who knowingly possesses a firearm thus takes the

firearm as he finds it: If it turns out to be defaced, he will suffer whatever criminal liability that

fact triggers, whether he was aware of it or not. (And the same goes for any other prohibited

feature the firearm turns out to have—e.g., being a sawed-off shotgun. See People v. Ivy, 133 Ill.

App. 3d 647 (1985)).

¶ 80. Stanley was wrongly decided for at least two reasons. First, its reasoning was

indefensible. It held that knowledge of the defacement is not required because defacement “is not

an element of the offense” in the first place. Stanley, 397 Ill. App. 3d at 609. So if defacement is

not an element, there is only one place to infer the knowledge requirement: with respect to the

mere act of possessing a firearm.

¶ 81. But of course, the defacement is an element of the offense. In the parlance of the

Criminal Code, it is an “attendant circumstance” of an individual’s conduct. See 720 ILCS 5/4­

5(a) (West 2016). If the defacement were not an element, the State wouldn’t have to prove it at

all. It could prove possession of a defaced firearm simply by proving possession of any firearm,

defaced or not. That would be absurd. And we cannot avoid that absurdity by purporting to

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distinguish, as Stanley did, between an element and a fact that “unmistakably bears upon the

commission of the offense.” Stanley, 397 Ill. App. 3d at 609. It “unmistakably bears upon” the

crime, but it’s not an element—it’s not something the State has to prove? It’s just an interesting

detail? That phrase is just a muddled, evasive way to refer to an element of the offense, which, in

plainer terms, is simply a fact for which the statute requires proof beyond a reasonable doubt.

¶ 82. Second, as Stanley construed the defacement statute, it still imposes absolute liability,

even though that is precisely the result that Stanley (correctly) set out to avoid.

¶ 83. As written, the defacement statute has two elements: possession and defacement of a

firearm. Possession of a firearm, by itself, is not a crime. Nor is knowing possession of a firearm.

Indeed, any statute that criminalized the knowing possession of a firearm—full stop, without

more—would clearly violate the Second Amendment, as interpreted in McDonald v. City of

Chicago, 561 U.S. 742 (2010), and District of Columbia v. Heller, 554 U.S. 570 (2008).

¶ 84. To define a constitutionally permissible offense, another element is necessary—some fact

about the firearm or the circumstances of its possession that the Second Amendment does not

protect. Defacement is one example of such an additional fact. Thus, in the statute we are

considering, the defacement is more than just an element, on par with any other; it is the element

that allows the legislature to enact this offense in the first place without being blatantly

unconstitutional. The additional fact of defacement is the only thing in this statute that validly

makes the firearm possession a crime.

¶ 85. Which means that, to avoid imposing absolute liability, the statute must be construed to

require proof that the defendant knew the firearm was defaced. If the statute did not require

knowledge of the defacement, the defendant’s otherwise innocent conduct (knowingly

possessing a firearm) would be transformed into a felony by a circumstance (the defacement) of

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which he was unaware. And if a person can be made to wander into felony liability unwittingly,

just by engaging in otherwise innocent conduct, then the felony liability imposed by the statute is

“absolute” or “strict,” indeed.

¶ 86. That is the lesson of Gean, 143 Ill. 2d 281. There, the supreme court construed a “chop

shop” statute aimed at prohibiting the receipt of stolen vehicles. Id. at 289. In technical terms, at

issue were two different Class 4 felony provisions: (1) prohibiting the possession “without

authority” of certain vehicle items (such as certificates of title or salvage certificates) and (2)

prohibiting the possession of these same items “without complete assignment.” Id. at 283-84; see

Ill. Rev. Stat. 1987, ch. 95½, par. 4-104(a)-(b).

¶ 87. Like the defacement statute, the provisions at issue in Gean did not include any explicit

mens rea requirement. Because the legislature did not clearly express an intent to create absolute

liability for this felony possession offense, a mens rea of knowledge had to be inferred. Gean,

143 Ill. 2d at 286-88. The question was which elements required such knowledge—did the

defendant merely have to know he was possessing the vehicle title or similar item, or did the

state have to prove that the defendant knew that his possession of the item was “without

authority” (in the one subsection) or that the items he possessed were “without complete

assignment” (in the other subsection)?

¶ 88. The supreme court inferred a knowledge requirement into the latter elements of each

subsection; the state had to prove that the defendant knew that his possession of the certificate

was “without authority” as for the first subsection, and that the defendant knew that the

certificates he possessed were “without complete assignment” in the second. Id. at 288.

¶ 89. Why? Because, as the supreme court explained, “[k]knowledge generally refers to an

awareness of the existence of facts which make an individual’s conduct unlawful.” (Emphasis

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added.) Id. Possessing a car title, alone, is not unlawful; if it were, every car owner in Illinois

would be a criminal. It was the knowledge that the car was stolen—that the defendant knew his

possession of the certificate or other item was “without authority,” or that he knew the item had

not been validly “assigned”—that differentiated innocent conduct from criminal conduct.

¶ 90. The same holds true here. We have perfectly innocent conduct (possession of a firearm,

without more) combined with an attendant circumstance that transforms that conduct from legal

to illegal—the fact that the firearm is defaced. If we don’t infer a knowledge requirement into the

part of the statute that renders the actor a criminal, we are imposing absolute liability for a Class

3 felony, without the requisite clear indication that the legislature attempted to do so.

¶ 91. To put this point in its proper context, contrast the defacement statute with the aggravated

vehicular hijacking statute, cited here by the State. A person commits vehicular hijacking if he

knowingly takes a motor vehicle by force or threat of force. 720 ILCS 5/18-3(a) (West 2016). A

person commits aggravated vehicular hijacking if he commits vehicular hijacking under section

18-3(a) and an aggravating factor is present—for example, a victim is under 16 years old, over

60, or physically disabled. 720 ILCS 5/18-4(a)(1)-(2) (West 2016).

¶ 92. The statute does not require knowledge that an aggravating factor is present; there is no

explicit mens rea requirement with respect to the circumstances that aggravate the offense. See

id. And we have refused to infer one. People v. Harris, 2017 IL App (1st) 140777, ¶ 52.

¶ 93. But that’s different. The aggravated vehicular hijacking statute does not transform legal

conduct into illegal conduct without the actor’s knowledge. The actor has already committed

vehicular hijacking—that is, he has already knowingly taken a car by force or threat. The

aggravated vehicular hijacking statute just aggravates the offense based on the character of the

victim. The legislature could rationally decide that a carjacker takes his victims as he finds them,

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regardless of whether he knew they were minors, elders, or disabled. No absolute liability there,

however, because the knowledge requirement applies to the action that makes it criminal—the

theft of the car in the first place.

¶ 94. Taking your carjacking victims as you find them is very different than taking your

firearms as you find them. The law made the vehicular hijacker take his chances with his victims,

but only because he knowingly committed a criminal act in the first place. The law did not make

him wander inadvertently into a felony—due to circumstances beyond his knowledge—while he

was doing something that was otherwise legal. But that is exactly what the law does to those who

possess firearms, at least as Stanley construed the defacement statute. And Gean tells us that

result is wrong.

¶ 95. To be fair, Stanley was decided before McDonald incorporated the rule of Heller against

the states. So perhaps it was not so easy to say, at the time Stanley was decided, that knowingly

possessing a firearm, full stop, is not and cannot be a crime under Illinois law. But that is no

reason for us to continue to follow Stanley. At a minimum, it cannot be good law in a post-Heller

world. If Gean wasn’t the controlling precedent on this question before Heller and McDonald, it

most certainly is now.

¶ 96. We should apply the principles of Gean to the defacement statute and hold, for the

reasons explained by our supreme court, that it requires proof that the defendant knew the

firearm in his possession was defaced. We should stop following Stanley, no matter how many

other courts have adhered to it.

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