People v. Schultz

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2019.06.27
15:55:03 -05'00'

People v. Schultz, 2019 IL App (1st) 163182

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption ROBERT SCHULTZ, Defendant-Appellant.

District & No. First District, Sixth Division
Docket No. 1-16-3182

Filed March 29, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 15-CR-20308; the
Review Hon. Thaddeus L. Wilson, Judge, presiding.

Judgment Affirmed.

Counsel on James E. Chadd, Patricia Mysza, and Yasaman Hannah Navai, of
Appeal State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Noah Montague, and James Murphy, Assistant State’s Attorneys, of
counsel), for the People.

Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Delort and Justice Connors concurred in the
judgment and opinion.
 OPINION

¶1 The defendant-appellant, Robert Schultz, seeks a reduction of his Class 2 conviction for
unlawful use or possession of a weapon by a felon (UUWF) to a Class 3 offense, because he
claims that the State did not prove that he had a prior conviction for a “forcible felony.” For the
following reasons, we reject the defendant’s argument and affirm the judgment of the circuit
court of Cook County.

¶2 BACKGROUND
¶3 In December 2015, the defendant was charged by indictment with seven counts, including
two counts of UUWF (counts I and II) and five counts of aggravated unlawful use of a weapon
(counts III through V). With respect to count I, which is the only relevant count in this appeal,
the indictment alleged that the defendant “committed the offense of unlawful use or possession
of a weapon by a felon in that he knowingly possessed on or about his person any firearm, after
having been previously convicted of the felony offense of felony firearm under case number
12-009438 (Wayne County, Michigan), in violation of Chapter 720 Act 4 Section 24-1.1(a) of
the Illinois Compiled Statutes ***.” The indictment also specified that “The State shall seek to
sentence him as a Class 2 offender in that he has been previously convicted of felony firearm
under case number 12-009438 (Wayne County, Michigan).”
¶4 The circuit court conducted a bench trial on October 6, 2016. The State first called a
witness from the Illinois State Police Firearm Services Bureau, who testified that there was no
record of the defendant ever having a Firearm Owner Identification Card or concealed carry
license. The State then called the defendant’s arresting officer, Michael Power. Officer Power
testified that he was driving an unmarked police vehicle when he noticed a number of
individuals, including the defendant, loitering near a van. When Officer Power approached the
van to conduct a field interview, the defendant removed a handgun from his waistband and
“tossed it underneath the car onto the ground.” Officer Power arrested the defendant and
recovered the handgun at the scene.
¶5 In addition to this testimony, the State also offered into evidence the following stipulation:
“It is hereby stipulated by and through the parties, the defendant, Robert Schultz, has prior
felony convictions for the offenses of assault with a dangerous weapon and carrying a firearm
while committing or attempting to commit a felony in Wayne County, Michigan, under Case
12-009438.” Defense counsel agreed that this was “So stipulated.” The State rested following
the stipulation.
¶6 The defendant called a single witness, Ronnie Burnett, who testified that he was with the
defendant at the time of his arrest but denied seeing the defendant with a gun. The defendant
elected not to testify.
¶7 After closing arguments, the trial court found the defendant guilty of all counts. The court
ordered a presentencing investigation report (PSI report) and scheduled posttrial motions and
sentencing.
¶8 The defendant’s PSI report reflected a prior conviction in Michigan for “Assault With a
Dangerous Weapon” under case No. 1200943801. Attached to the PSI report is a “Criminal
History Record” from Michigan, reflecting that in January 2013 defendant was convicted of

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 felony “assault with a dangerous weapon” under section 750.82 of the Michigan Penal Code.
Mich. Comp. Laws § 750.82 (1994).
¶9 On November 18, 2016, the court denied the defendant’s motion for new trial and
proceeded to sentencing. In aggravation, the State referenced the two prior Michigan
convictions in the trial stipulation but did not offer specific evidence about the circumstances
of either conviction. The State requested a sentence in the range of three to seven years.
¶ 10 After hearing evidence in mitigation, the court determined that all counts merged into
count I for UUWF and sentenced the defendant on that count to four years in the Illinois
Department of Corrections, plus two years of mandatory supervised release. The transcript
does not reflect that the court orally stated whether it found that the offense was a Class 2 or
Class 3 felony. However, the court’s written sentencing order specified a Class 2 conviction
for UUWF.
¶ 11 After the defendant’s motion to reconsider sentence was denied, defendant filed a timely
notice of appeal. Accordingly, we have jurisdiction. Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014).

¶ 12 ANALYSIS
¶ 13 On appeal, the defendant does not dispute that he possessed a firearm on the date of his
arrest. Rather, he raises a single sentencing issue. He asserts that his Class 2 UUWF conviction
should be reduced to a Class 3 conviction, because the State failed to prove that either of the
prior Michigan convictions referenced in the trial stipulation constituted a “forcible felony.”
See 720 ILCS 5/24-1.1(e) (West 2016) (violation of the UUWF statute by a person “who has
been convicted of a forcible felony” is a Class 2 felony, rather than a Class 3 offense).
¶ 14 The defendant acknowledges the trial stipulation referencing two prior Michigan
convictions, but he argues that the State failed to prove that either of the stipulated convictions
was a “forcible felony” as that term is defined by section 2-8 of the Criminal Code of 2012
(Code) (id. § 2-8). He claims that because neither of the prior Michigan offenses is explicitly
named as a “forcible felony” in section 2-8, the State was required to offer additional evidence
regarding the circumstances of the prior crimes, to prove that either fell within the so-called
“residual clause” of section 2-8 of the Code. See id. (extending the definition of a forcible
felony to “any other felony which involves the use or threat of physical force or violence
against any individual”). The defendant thus argues that the State failed to meet its burden to
prove a prior “forcible felony,” as necessary to warrant a Class 2 UUWF conviction.
¶ 15 The defendant acknowledges that this issue was forfeited, as he did not raise this argument
in the trial court. Nonetheless, he urges that we should consider it under the plain-error rule,
which “bypasses normal forfeiture principles and allows a reviewing court to consider
unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d 598,
613 (2010). The defendant relies on the second prong of the plain-error doctrine, which applies
if “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.” (Internal quotation
marks omitted.) Id.
¶ 16 The State responds that there was no error and thus no plain error. See id. (“The first step of
plain-error review is determining whether any error occurred.”). The State urges that the trial
stipulation was sufficient to support his Class 2 UUWF conviction, even without evidence of
the specific facts underlying the prior Michigan convictions, because both Michigan

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 convictions were “inherently forcible felonies.” That is, the State contends that either of the
prior Michigan offenses fell within the residual clause of section 2-8 and, thus, both were
forcible felonies supporting enhancement to a Class 2 conviction.
¶ 17 The sentencing provision of the UUWF statute states:
“Violation of this Section by a person not confined in a penal institution shall be a Class
3 felony for which the person shall be sentenced to no less than 2 years and no more
than 10 years ***. Violation of this Section by a person not confined in a penal
institution who has been convicted of a forcible felony *** is a Class 2 felony for which
the person shall be sentenced to not less than 3 years and not more than 14 years.”
(Emphasis added.) 720 ILCS 5/24-1.1(e) (West 2016).
In other words, “the offense of unlawful use of a weapon by a felon is enhanced from a Class 3
felony to a Class 2 felony when the defendant has previously been convicted of a forcible
felony. [Citation.]” People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003).
¶ 18 The term “forcible felony” is defined by section 2-8 of the Code. See 720 ILCS 5/2-8
(West 2016). Section 2-8 of the Code first sets forth a list of certain enumerated offenses that
constitute forcible felonies,1 which is followed by a residual clause that encompasses “any
other felony which involves the use or threat of physical force or violence against any
individual.” Id.
¶ 19 The parties agree that neither of the Michigan convictions referenced in the stipulation at
defendant’s trial is included in section 2-8’s list of enumerated offenses. Thus, the crux of this
appeal is whether either of those prior Michigan convictions falls within the residual clause of
section 2-8. “Interpretation of the forcible felony statute is an issue of law, which we review
de novo.” People v. Sanderson, 2016 IL App (1st) 141381, ¶ 5 (citing People v. Belk, 203 Ill.
2d 187, 192 (2003)).
¶ 20 “An unenumerated felony falls within the residual clause if the defendant ‘contemplated
that the use of force or violence against an individual might be involved and [was] willing to
use such force or violence.’ (Emphasis in original.) [Belk, 203 Ill. 2d at 196.] But the defendant
need not actually inflict physical injury. [Citation.]” Id.
¶ 21 “[C]rimes fall under the residual clause in one of two ways. First, where one of a crime’s
elements is ‘a specific intent’ to carry out a violent act, every instance of that crime
‘necessarily qualifies’ as a forcible felony.” Id. ¶ 6 (quoting People v. Thomas, 407 Ill. App. 3d
136, 139-40 (2011)). Thus, certain crimes, by definition, are necessarily considered forcible
felonies, even absent specific evidence of the circumstances of the prior offense. For example,
in Thomas, the defendant challenged his conviction under the armed habitual criminal statute
(which required two predicate forcible felonies) on the grounds that “proof of his previous
conviction for attempted murder did not prove that he committed a forcible felony.” 407 Ill.
App. 3d at 138-39. Our court thus “review[ed] de novo the question of law as to whether
evidence that a defendant had a prior conviction for attempted murder, without any details

1
The enumerated offenses are “treason, first degree murder, second degree murder, predatory
criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery,
burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated
battery resulting in great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8 (West
2016).

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 about the crime, proves that he committed a forcible felony.” Id. at 139. We held that attempted
murder is necessarily a forcible felony:
“Because every attempted murder involves a specific intent to cause death, the trier of
fact who finds a person guilty of attempted murder must find that the guilty person
contemplated the use of sufficient force to cause very serious injury, injury that can
lead to death. Accordingly, we hold that every attempted murder qualifies as a forcible
felony for purposes of the armed habitual criminal statute ***.” Id. at 140.
¶ 22 Thus, to determine if a crime is inherently a forcible felony, we perform “an analysis of the
elements of the underlying offense to determine whether proof of those elements necessarily
entails the use or threat of force or violence against an individual.” Sanderson, 2016 IL App
(1st) 141381, ¶ 6. Under that approach, we have held that attempted armed robbery is an
“inherently forcible felony” because it “requires evidence that a defendant possessed the
specific intent to knowingly take property from another by threat or use of force while armed
with a firearm.” People v. Brown, 2017 IL App (1st) 150146, ¶¶ 19-22. We have also held that
vehicular hijacking is an inherently forcible felony, because “the act of taking a motor vehicle
from a person by the use of force or by threatening the imminent use of force necessarily
involves at least the contemplation that violence might be necessary to carry out the crime.”
People v. Wooden, 2014 IL App (1st) 130907, ¶ 20.
¶ 23 “The second way a felony can qualify as a forcible felony, even if a crime does not have
violent intent as an element, is if the State proves that ‘under the particular facts of this case,’
the defendant contemplated the use of force and was willing to use it.” Sanderson, 2016 IL
App (1st) 141381, ¶ 7 (quoting Belk, 203 Ill. 2d at 195). Our supreme court’s decision in Belk
illustrates this principle. The Belk defendant stole a vehicle and fled from police before
crashing the vehicle, resulting in two deaths. 203 Ill. 2d at 189. The defendant was convicted of
felony murder, based on the predicate felony of aggravated possession of a stolen motor
vehicle. Id. at 191. The defendant argued that the predicate offense was not a forcible felony, as
required to implicate the felony-murder statute. Id.
¶ 24 Because aggravated possession of a stolen motor vehicle was not one of the specifically
enumerated felonies in section 2-8 of the Code, our supreme court framed the issue as
“whether, under the facts of this case, Belk’s aggravated possession of a stolen motor vehicle
involved the use or threat of physical force or violence against any individual.” Id. at 193. Our
supreme court discussed whether there was “any evidence which would give rise to an
inference that at some point during his attempt to elude the police [defendant] contemplated
that escape might involve the use of force or violence against an individual.” Id. at 195. The
court answered in the negative, finding that, although Belk may have “acted recklessly,” the
evidence “does not support an inference that Belk contemplated that the use of force or
violence against an individual might be necessary in order for him to accomplish his escape.”
(Emphasis in original.) Id. Thus, our supreme court held that there was not a forcible felony
supporting a felony murder conviction. Id. at 197-98.
¶ 25 In addition to Belk, defendant relies on more recent decisions of our court holding that, if a
prior conviction was not inherently a forcible felony, then the State must offer specific
evidence to show that the prior crime involved the use or threat of force. Thus, in Sanderson,
2016 IL App (1st) 141381, our court reversed a conviction for the offense of being an armed
habitual criminal, to the extent it was premised upon a prior conviction for attempted
residential burglary. We held that the attempted burglary was “not inherently a forcible felony,

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 since its elements do not include a specific intent to carry out a violent act.” Id. ¶ 9.
Furthermore, the State offered “no evidence that, under the particular facts of this case,
Sanderson contemplated the use of force.” Id. ¶ 11. Without such evidence, the State could not
prove the defendant’s “willingness to use violence against another, which would be necessary
for his conviction to constitute a forcible felony.” Id. ¶ 12.
¶ 26 The defendant also directs us to Carmichael, 343 Ill. App. 3d 855. Similar to the instant
appeal, Carmichael concerned whether a prior stipulated conviction was a forcible felony that
supported enhancement of a UUWF conviction to a Class 2 felony. Id. at 857-58. The
Carmichael defendant’s trial counsel stipulated that defendant had a prior conviction for
armed violence, but the State did not introduce evidence regarding the circumstances of that
prior offense. Id. at 858. We reasoned that, since the “record [was] silent as to the
circumstances surrounding the defendant’s armed violence conviction,” we could not assess
whether the defendant “contemplated that the use or threat of force or violence might be
necessary to carry out” the prior crime. Id. at 861. We further determined that armed violence
was not an “inherently violent” offense, as it could be “committed by merely possessing a
firearm” during the commission of a nonviolent felony. Id.2 Thus, we concluded that the trial
court erred in enhancing the UUWF conviction to a Class 2 felony. Id.
¶ 27 The defendant’s opening brief relies on Carmichael and Sanderson to urge that the State
was required to offer proof of the particular facts and circumstances of the prior Michigan
convictions, beyond the trial stipulation, to prove that either offense was a forcible felony.
However, the defendant’s argument ignores our precedent holding that such particularized
proof is not necessary, if a defendant’s prior conviction was for an inherently forcible felony.
Indeed, the Sanderson decision explicitly recognizes that “crimes fall under the residual clause
[of section 2-8] in one of two ways”; either the elements are such that “every instance of that
crime necessarily qualifies as a forcible felony,” or the State can prove that “under the
particular facts of this case, the defendant contemplated the use of force and was willing to use
it.” (Internal quotation marks omitted.) Sanderson, 2016 IL App (1st) 141381, ¶¶ 6-7.
¶ 28 The State urges that either of the two prior Michigan convictions referenced in the trial
stipulation inherently constitutes a forcible felony. First, to the extent the stipulation referred to
the defendant’s prior felony conviction for “assault with a dangerous weapon,” the State
argues that this stipulation (as well as the PSI report and other documents in the record) prove
that he was convicted under Michigan’s felonious assault statute, section 750.82 of the
Michigan Penal Code (Mich. Comp. Laws § 750.82 (1994)). The State urges that the language
of that statute, as well as Michigan case law defining “assault,” establishes that this conviction
necessarily qualifies as a forcible felony.
¶ 29 In response, the defendant’s reply brief first argues that the State cannot rely on any
Michigan statute because “the prosecutor did not refer to the Michigan statutes [the defendant]
violated” at trial or during sentencing. The defendant does not dispute that the PSI report and
other record documents reflect that he was, in fact, convicted under section 750.82. However,
he argues that “[b]ecause the criminal history report was not introduced at trial and the
prosecutor never referred to the particular [Michigan] statutes *** at sentencing, it is improper

Further, the parties in Carmichael agreed on appeal that the armed violence conviction was “based
2

upon [defendant’s] commission of the predicate felony of possession of a controlled substance.”
Carmichael, 343 Ill. App. 3d at 860.

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 for the State to rely on them” in this appeal. The defendant essentially argues that, since the
trial stipulation did not cite a specific statute, the State cannot refer to any statute in its
argument before our court.
¶ 30 We disagree. At trial, the defendant stipulated that he was convicted in Michigan of two
felonies, including “assault with a dangerous weapon.” We recognize that the State was
somewhat careless in crafting the wording of the stipulation, to the extent that it failed to
include a citation to the precise Michigan statute underlying that prior conviction. We certainly
do not mean to encourage that practice, and we admonish the State to be more precise in such
stipulations, especially when referencing prior out-of-state convictions. Nonetheless, we do
not find that this omission leads to reversible error in this case, as the defendant does not cite
(and we are not aware of) any authority that would preclude the trial court from taking notice
of the Michigan legal authorities that define the stipulated offense. As discussed below, those
authorities make clear that a felony for “assault with a dangerous” weapon in Michigan would
be premised under section 750.82. Further, the defendant does not dispute that the trial
stipulation referred to his prior conviction under section 750.82.3
¶ 31 The defendant’s reply otherwise suggests that it is improper for our court to consider
whether an out-of-state statute describes a “forcible felony” for purposes of the Code section
2-8’s residual clause. He acknowledges that “Illinois courts have evaluated Illinois statutes” to
determine if an offense is inherently a forcible felony under section 2-8 but points out that “the
State cites no cases where out of state statutes were examined.” We reject the defendant’s
suggestion. Our precedent indicates that we may conduct “an analysis of the elements of the
underlying offense to determine whether proof of those elements necessarily entails the use or
threat of force or violence.” Sanderson, 2016 IL App (1st) 141381, ¶ 6. The defendant does not
cite any authority suggesting that we are precluded from applying that same analysis to crimes
committed in other jurisdictions. Moreover, nothing in section 2-8 of the Code suggests that
only a prior conviction under Illinois law may constitute a “felony which involves the use or
threat of physical force or violence against any individual.” 720 ILCS 5/2-8 (West 2016).
Similarly, the UUWF statute does not suggest that only Illinois forcible felonies may support a
sentencing enhancement to a Class 2 offense. See id. § 24-1.1(e).
¶ 32 We thus reach the question of whether the defendant’s prior Michigan conviction for
“assault with a dangerous weapon” constituted a forcible felony. The defendant urges that,
even assuming that he was “found guilty of felonious assault pursuant to [section 750.82 of the
Michigan Penal Code], this offense does not inherently constitute a forcible felony.” As set
forth below, we disagree.
¶ 33 Section 750.82 of the Michigan Penal Code is entitled “Felonious assault; violation in a
weapon free school zone” and provides, in relevant part:
3
We note that other record documents make clear that the defendant was, in fact, convicted under
section 750.82 of the Michigan Penal Code. The PSI report references a conviction for “Assault with a
Dangerous Weapon” in case No. 1200943801; the Michigan criminal history records state (under the
same case number) that he was convicted of “Assault With [a] Dangerous Weapon,” explicitly
referencing “750.82” as the statutory basis for that conviction. The defendant does not dispute the
accuracy of these records. We recognize that these sentencing documents could not be relied upon by
the trial court as evidence that the prior conviction was for a violation of section 750.82; nonetheless,
they undermine any suggestion that the stipulated conviction at issue could have referred to some other
offense.

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 “Except as provided in subsection (2),[4] a person who assaults another person with a
gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon
without intending to commit murder or to inflict great bodily harm less than murder is
guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not
more than $2,000.00, or both.” Mich. Comp. Laws § 750.82 (1994).
¶ 34 We first note, as recognized by the parties, that Michigan lacks a statutory definition for the
crime of simple “assault.” However, in People v. Gardner, 265 N.W.2d 1 (Mich. 1978), the
Michigan Supreme Court approved of three separate definitions of criminal assault, derived
from three different treatises. First, the Michigan Supreme Court stated: “We adopt what
Perkins on Criminal Law *** says is the majority rule, namely a simple criminal assault is
made out from either an attempt to commit a battery or an unlawful act which places another in
reasonable apprehension of receiving an immediate battery.” (Internal quotation marks
omitted). Id. at 7. The Gardner court further approved definitions from two additional
treatises. See id. (“We also hold that either the Cyclopedia or the Bishop definition *** is an
adequate definition of a form of assault and that both forms are actionable in the criminal
law.”). Thus, the Michigan Supreme Court also approved two other definitions: (1) “[a]n
assault is any attempt or offer with force or violence to do a corporal hurt to another, whether
from malice or wantonness, with such circumstances as denote at the time an intention to do it,
coupled with a present ability to carry such intention into effect” and (2) “[a]n assault is any
unlawful physical force *** creating a reasonable apprehension of immediate injury to a
human being.” (Internal quotation marks omitted.) Id. at 6.
¶ 35 The State notes that two of the three definitions of assault approved in Gardner include the
term “force” and thus argues: “The fact that ‘force’ is a defined element of assault shows that
some measure of violence was not only contemplated but carried out by defendant.” The State
thus suggests that Gardner establishes that any assault is necessarily a forcible felony.
¶ 36 The defendant’s reply brief emphasizes the remaining definition approved by Gardner,
i.e., that “a simple criminal assault is made out from either an attempt to commit a battery or an
unlawful act which places another in reasonable apprehension of receiving an immediate
battery.” (Internal quotation marks omitted.) Id. at 7. The defendant argues that, because this
definition does not “include either the use or threat of force” as an element, Gardner
establishes “that a Michigan felonious assault conviction does not inherently constitute a
forcible felony in Illinois.”
¶ 37 We disagree. First, we are not convinced that the Gardner definition relied upon by
defendant does not describe an inherently forcible act. That definition states that a simple
criminal assault is an “either an attempt to commit a battery or an unlawful act which places
another in reasonable apprehension of receiving an immediate battery.” (Internal quotation
marks omitted.) Id. We recognize that this definition does not use the precise terms “threat” or
“force.” Yet, even under this definition, we fail to see how one can attempt to commit a battery,
or place another in reasonable apprehension of receiving an immediate battery, without
contemplating or threatening the use of force. Notably, defendant does not even attempt to
argue how one could commit an assault under this definition without contemplating or
threatening force or violence.

Subsection (2) refers to a violation of subsection (1) “in a weapon free school zone.” Mich. Comp.
4

Laws § 750.82 (1994).

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¶ 38 More importantly, whereas Gardner concerned the common-law definition of simple
assault, in this case, defendant stipulated to a Michigan felony conviction for “assault with a
dangerous weapon.” As discussed, the record makes clear that this referred to defendant’s
conviction under Michigan’s “felonious assault” statute (Mich. Comp. Laws § 750.82
(1994)). 5 Michigan authorities make clear that a conviction under this statute requires
additional elements beyond the commission of the “simple assault” defined in Gardner.
¶ 39 Significantly, in a decision just one year after Gardner, the Michigan Supreme Court held
that, in prosecutions for felonious assault under section 750.82, “the jury should be instructed
that there must be either an intent to injure or an intent to put the victim in reasonable fear or
apprehension of an immediate battery.” People v. Johnson, 284 N.W.2d 718, 718-19 (Mich.
1979). Thus, Michigan courts now recognize that “[t]o perpetrate a felonious assault, a
defendant must commit ‘(1) an assault, (2) with a dangerous weapon, and (3) with the intent to
injure or place the victim in reasonable apprehension of an immediate battery.’ [Citation.]”
People v. Nix, 836 N.W.2d 224, 230 (Mich. Ct. App. 2013); see also People v. Bosca, 871
N.W.2d 307, 325 (Mich. Ct. App. 2015) (“ ‘The elements of [assault with a dangerous
weapon] are (1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or
place the victim in reasonable apprehension of an immediate battery. [Citation.]”).
¶ 40 We note that this case law precedent refutes the argument in the defendant’s reply brief that
relies upon the portion of the felonious assault statute specifying that it is committed “without
intending to commit murder or to inflict great bodily harm less than murder.” (Emphasis
added.) Mich. Comp. Laws Ann. § 750.82 (West 1994). The defendant suggests that “it cannot
be said that a felonious assault conviction is inherently violent *** where an element of
felonious assault is that the defendant lack an intent to inflict severe bodily harm.” The
defendant’s argument is without merit, as it confuses the lack of intent to kill or inflict serious
bodily harm as equivalent to the lack of any intent to use or threaten force. However, the
Michigan case law precedent clarifies that a conviction under section 750.82 requires a finding
that defendant intended to injure or place the victim in reasonable apprehension of an
immediate battery.
¶ 41 Under this precedent, it is apparent that defendant’s stipulated Michigan conviction for
assault with a dangerous weapon included findings that defendant had made “either an attempt
to commit a battery or an unlawful act which place[d] another in reasonable apprehension of
receiving an immediate battery,” that he did so with a dangerous weapon, and that he acted
with “either an intent to injure or an intent to put the victim in reasonable fear or apprehension
of an immediate battery.” Johnson, 284 N.W.2d at 718-19; Mich. Comp. Laws § 750.82
(1994). Especially considering the requisite intent for this offense, we cannot see, and the
defendant does not attempt to articulate, how one could violate section 750.82 of the Michigan
Penal Code without “the use or threat of physical force or violence,” within the meaning of
section 2-8 of the Code (720 ILCS 5/2-8 (West 2016)). Thus, upon considering relevant
Michigan authorities, we hold that defendant’s prior conviction for violation of section 750.82
of the Michigan Penal Code was inherently a forcible felony pursuant to section 2-8 of the
Code.

5
Michigan courts refer to this statutory offense as either “assault with a dangerous weapon” or
“felonious assault.” See, e.g., People v. Bosca, 871 N.W.2d 307 (Mich. Ct. App. 2015) (using both
terms to refer to violations of section 750.82 of the Michigan Penal Code).

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¶ 42 As the State points out, it needed only to prove that one of the two stipulated prior
Michigan convictions was a forcible felony, in order to support the enhancement of the
defendant’s UUWF conviction to a Class 2 offense. See id. § 24-1.1(e). As we have
determined that the defendant’s stipulated conviction for “assault with a dangerous weapon”
constituted a forcible felony, we need not address the parties’ arguments regarding the other
prior Michigan conviction referenced in the trial stipulation, for “carrying a firearm while
committing or attempting to commit a felony.”
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 44 Affirmed.

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