dissenting:
I respectfully dissent and would reverse and remand.
The State’s consistent theory in this case was that defendant transferred the gun to Gilmer on the night of the Lounge incident. The State’s evidence at trial centered on that incident. In fact, the State conceded during its closing argument that “Heather Jenkins had no connection with this case around the incident that happened on March 9th.” The jury, on its own, came up with the theory that defendant could be convicted based on a prior, uneventful possession in the apartment. The State’s suggestion that the trial court answer the jury’s question in this case with IPI Criminal 4th No. 3.01 adopts a completely different approach taken after the close of evidence. It appears the jury convicted defendant based on the uneventful possession in the apartment at some indefinite time before the shooting, and then the court sentenced defendant based on the violent circumstances surrounding providing Gilmer with a firearm to be used in a bar fight.
The State is not required to prove that a crime was committed on a particular date. In this case, it makes no difference whether the crime was committed during the late evening hours of March 8 or the early morning hours of March 9. However, giving IPI Criminal 4th No. 3.01 may result in reversible error “where [the] inconsistencies between the date charged in the indictment and the evidence presented at trial are so great that the defendant is misled in presenting his defense.” Suter, 292 Ill. App. 3d at 364, 685 N.E.2d at 1028. If defendant had known he would have to defend against something other than the Lounge incident, perhaps he could have brought in witnesses to establish that the firearm in the apartment in January or Februaty was not his. Other than his on-the-spot denial that the gun was his, defendant was unable to prepare a defense against the accusation of possession of a gun in the weeks and months prior to the Lounge incident.
“Due process requires that an indictment or information apprise defendant of the precise offense charged with sufficient specificity to enable him to prepare his defense and allow the pleading of the judgment as a bar to future prosecution of the same conduct.” People v. Rhoden, 253 Ill. App. 3d 805, 810, 625 N.E.2d 940, 944 (1993). If defendant had been acquitted of possession of a weapon at the Lounge on March 8 or 9, could he have been later charged with possession at some other time and place? It seems clear that he could have been. Defendant’s rights were violated in this case when the trial court allowed the jury to ignore the charge which had been filed.