People v. Ames

2020 IL App (2d) 160722, 174 N.E.3d 958, 447 Ill. Dec. 592

• Court: Appellate Court of Illinois
• Decided: July 17, 2020
• Docket: 2-16-0722
• Status: Published

Opinion

2020 IL App (2d) 160722 No. 2-16-0722 Opinion filed July 17, 2020 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Du Page County. ) Plaintiff-Appellee, ) ) v. ) No. 14-CF-1144 ) TROYAN D. AMES, ) Honorable ) Robert A. Miller, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Hudson concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant, Troyan D. Ames, was convicted of unlawful possession of a

firearm by a street gang member and aggravated unlawful use of a weapon. He received concurrent

prison terms of six and nine years. His appeal presents the following issues for review: (1) whether

the State’s evidence established that defendant was a member of a street gang and (2) whether the

trial court improperly enhanced the sentence for aggravated unlawful use of a weapon. For the

reasons that follow, we vacate defendant’s conviction of and sentence for unlawful possession of

a firearm by a street gang member and reduce his sentence for aggravated unlawful use of a weapon

from nine to seven years.

¶2 I. BACKGROUND 2020 IL App (2d) 160722

¶3 In July 2014, defendant and his two young children were passengers in a car driven by his

wife when they were pulled over for a seat belt violation. The Carol Stream police officer who

stopped the car called for backup because he purportedly smelled cannabis and his Law

Enforcement Agencies Data System (LEADS) check indicated that defendant was a “criminal

gang member.” The police searched the car and discovered a loaded handgun in an inner pocket

of a diaper bag.

¶4 According to the officers, defendant admitted that the gun was his and that he did not have

a valid Firearm Owner’s Identification (FOID) Card. Defendant told the officers that he carried

the gun for his family’s protection, as he was a former gang member and had recently been

attacked. His wife told the officers that defendant had been a Four Corner Hustler and had ceased

his involvement with the gang a few years prior, when she agreed to marry him.

¶5 Defendant was arrested and charged by complaint with two counts of unlawful possession

of a weapon by a felon and ticketed for a seat belt violation. The complaint was superseded by a

two-count indictment charging defendant with unlawful possession of a firearm by a street gang

member (UPF) (720 ILCS 5/24-1.8(a)(1) (West 2014)) and aggravated unlawful use of a weapon

(AUUW) (id. § 24-1.6).

¶6 A three-day jury trial commenced in January 2016. The trial court admitted a certified

record from the Illinois State Police indicating that defendant did not have a FOID card at the time

of his arrest, and counsel for both parties stipulated that as of that time defendant was a convicted

felon. Other evidence adduced at trial related primarily to whether defendant was a street gang

member at the time of his arrest.

¶7 Du Page County Police Detective Patrick O’Neil was qualified as a gang expert by the

court. O’Neil testified that the Four Corner Hustlers is a street gang faction that originated in

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Chicago in the late 1950s or early 1960s and had “currently active” members throughout Cook and

Du Page Counties, including in Chicago, Bellwood, and Maywood. When asked about the type

of “criminal conduct of the Four Corner Hustlers,” the “type of crimes or course of criminal

conduct,” O’Neil answered that he was personally aware of “prior investigations with the Four

Corner Hustlers on possession of firearms, narcotics offenses to include heroin, and then

aggravated batteries.”

¶8 Based on the totality of the evidence he reviewed, O’Neil opined that defendant was a

member of the Four Corner Hustlers at the time of the incident. That evidence included

screenshots of photos posted on defendant’s Facebook page that depicted images “indicative of

gang lifestyle”—for example, money, a gangster character from a movie, and the words “Hustler

Spirit”―photos of defendant’s tattoos, which, O’Neil testified, were consistent with symbols used

by members of the Four Corner Hustlers and street gang members generally; information compiled

by the Bellwood and Carol Stream Police Departments that indicated that defendant was a member

of the Four Corner Hustlers as recently as June 2012; and photos of graffiti found in the jail cell

defendant occupied from July 2014 to July 2015 that depicted symbols and language used by

members of the Four Corner Hustlers to represent their street gang and establish their “turf.”

¶9 On cross-examination, O’Neil admitted that he did not know when any of the photos on

defendant’s Facebook page had been taken or posted, when defendant’s tattoos were applied, who

vandalized the jail cell or when, or whether defendant had taken the necessary steps to leave a

street gang. James Buckardt, the sheriff’s deputy who found and photographed the jail cell graffiti

one year after defendant had occupied the cell, also testified that he had “no idea whether or not

the graffiti in the cell was there prior to defendant being moved into that cell” and agreed that it

was “possible” that the graffiti predated defendant’s assignment to that cell.

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¶ 10 The jury found defendant guilty of both offenses, and the trial court denied defendant’s

posttrial motion. At sentencing, the presentence investigation report (PSI) revealed that defendant

was convicted of conspiracy to commit first-degree murder in 2004 and UPF in 2010, both

classified as Class 2 felonies when they were committed. The trial court imposed the mandatory

minimum prison term of six years for defendant’s current UPF offense and a concurrent term of

nine years for the AUUW offense. The court used the conspiracy-to-commit-first-degree-murder

conviction both to classify defendant as a Class X offender and to elevate the sentence, apparently

believing that it could avoid the prohibition against double enhancement by considering the

specific “nature of the offense” to be “especially aggravating.” Defendant did not file a

postsentencing motion.

¶ 11 This appeal ensued. On May 13, 2019, we held the appeal in abeyance pending our

supreme court’s decision in People v. Murray, 2019 IL 123289. The supreme court entered its

decision on October 18, 2019, and we requested supplemental briefing addressing the decision’s

impact on this case.

¶ 12 II. ANALYSIS

¶ 13 A. Unlawful Possession of a Firearm by a Street Gang Member

¶ 14 Defendant argues that the State failed to prove him guilty UPF), because it presented

insufficient evidence that the Four Corner Hustlers was a “street gang” as defined in section 10 of

the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) (740 ILCS 147/10 (West 2012)).

Our review is governed by the following principles:

“Where a criminal conviction is challenged based on insufficient evidence, a

reviewing court, considering all of the evidence in the light most favorable to the

prosecution, must determine whether any rational trier of fact could have found beyond a

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reasonable doubt the essential elements of the crime. [Citations].” Murray, 2019 IL

123289, ¶ 19

“The right to due process, as guaranteed by the United States and Illinois

Constitutions (U.S. Const., amend. XIV; Ill. Const. 1970, art. I, § 2), safeguards an accused

from conviction except upon proof beyond a reasonable doubt of every fact necessary to

prove each element that constitutes the crime charged. [Citations.] An essential element

of proof to sustain a conviction cannot be inferred but must be established. [Citation.] It

is axiomatic that the State carries the burden of proving each element of a charged offense

beyond a reasonable doubt. [Citation.]” Id. ¶ 28.

¶ 15 Defendant was charged with violating section 24-1.8(a)(1) of the Criminal Code of 2012

(Code). As we recently explained in People v. Figueroa, 2020 IL App (2d) 160650, ¶¶ 70-71,

section 24-1.8(a)(1) provides:

“(a) A person commits unlawful possession of a firearm by a street gang member

when he or she knowingly:

(1) possesses, carries, or conceals on or about his or her person a firearm

and firearm ammunition while on any street, road, alley, gangway, sidewalk, or any

other lands, except when inside his or her own abode or inside his or her fixed place

of business, and has not been issued a currently valid Firearm Owner’s

Identification Card and is a member of a street gang[.]” 720 ILCS 5/24-1.8(a)(1)

(West 2014).

The statute indicates that the term “street gang” has the meaning ascribed to it in section 10 of the

Act. Id. § 24-1.8(c). Section 10 of the Act defines “streetgang” as

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“any combination *** of 3 or more persons with an established hierarchy that, through its

membership or through the agency of any member engages in a course or pattern of

criminal activity.” 740 ILCS 147/10 (West 2014).

“Course or pattern of criminal activity,” in turn, means:

“2 or more gang-related criminal offenses committed in whole or in part within this State

when:

(1) at least one such offense was committed after [January 1, 1993];

(2) both offenses were committed within 5 years of each other; and

(3) at least one offense involved the solicitation to commit, conspiracy to

commit, attempt to commit, or commission of any offense defined as a felony or

forcible felony under the Criminal Code of 1961 or the Criminal Code of 2012.

‘Course or pattern of criminal activity’ also means one or more acts of criminal

defacement of property under Section 21-1.3 of the Criminal Code of 1961 or the Criminal

Code of 2012, if the defacement includes a sign or other symbol intended to identify the

streetgang.” Id.

According to defendant, although O’Neil, as the State’s expert, testified that the Four Corner

Hustlers was a street gang, the State failed to establish that the Four Corner Hustlers engaged in a

“course or pattern of criminal activity.”

¶ 16 While this appeal was pending, our supreme court decided Murray, 2019 IL 123289. In

reversing a decision of this court, a majority of the Murray justices agreed that expert testimony

alone is insufficient to establish that an entity is a street gang; rather, an organization’s “course or

pattern of criminal activity” is an element of the offense that the State must prove. Id. ¶¶ 24, 53

(opinion of Neville, J., joined by Burke, J.); see also id. ¶ 63 (Kilbride, J., specially concurring,

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joined by Karmeier, C.J.). In the absence of evidence of a course or pattern of criminal activity,

these four justices agreed to reverse and vacate the defendant’s conviction of unlawful possession

of a firearm by a street gang member. Id. ¶ 53 (opinion of Neville, J., joined by Burke, J.); see

also id. ¶ 68 (Kilbride, J., specially concurring, joined by Karmeier, C.J).

¶ 17 The State contends that the evidence presented regarding the defacement of defendant’s

jail cell with “Four Corner Hustlers graffiti” was sufficient to overcome its burden of showing that

the Four Corner Hustlers engaged in a “course or pattern of criminal activity” and, therefore, met

the legislatively mandated prerequisites for a “street gang.”

¶ 18 According to Buckardt’s testimony, he “found some graffiti” identifying the Four Corner

Hustlers from the Bellwood area during a shakedown of the jail cell defendant occupied for about

a year before his trial. Buckardt admitted, however, that he had “no idea whether nor not the

graffiti in the cell was there prior to [defendant’s] being moved into that cell” and acknowledged

that it was “possible” that the graffiti was present prior to defendant’s assignment to that cell. No

witness testified as to “who created the graffiti or when it was created.” See id. ¶ 51 (opinion of

Neville, J., joined by Burke, J.). The State nevertheless asserts that the evidence was “sufficient

for the jury to infer that defendant created the graffiti that was found in his cell.”

¶ 19 In Murray, the supreme court explicitly rejected the same inference argument:

“The State did not prove ‘one or more acts of criminal defacement of property’ when it

failed to present a witness who testified as to who created the graffiti or when it was created.

When the State’s witnesses failed to testify that they were present when the property was

defaced, the jury had no evidence from which it could infer that the defendant defaced the

property. In addition, because a ‘course or pattern of criminal activity’ is an element of

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the offense, which must be established and cannot be proved by inference [citation], the

evidence was insufficient to prove defendant guilty of the offense.” Id.

¶ 20 We conclude that the State failed to prove that the Four Corner Hustlers engaged in a

“course or pattern of criminal activity” and, therefore, failed to prove that defendant was a member

of a “streetgang” under the Act at the time of his arrest. Accordingly, the State failed to prove

beyond a reasonable doubt that defendant was guilty of UPF.

¶ 21 The State contends that defendant’s conviction of UPF should be vacated without prejudice

to retrial as to that offense. According to the State, a previous decision of this court, People v.

Jamesson, 329 Ill. App. 3d 446, 460-61 (2002), was in effect at the time of defendant’s trial and

held that expert opinion was sufficient to demonstrate that an organization qualified as a “street

gang,” without testimony as to specific dates or instances of criminal activity. Although the

supreme court overruled Jamesson in Murray, 2019 IL 123289, ¶ 42, the State maintains, without

citing authority, that its “ability to retry defendant for his UPF offense should not be compromised

by their [sic] adherence to existing precedent.” The relevant authority, however, indicates

otherwise: “Generally, when a court issues an opinion, its decision is presumed to apply both

retroactively and prospectively.” Tzakis v. Berger Excavating Contractors, Inc., 2019 IL App (1st)

170859, ¶ 32 (setting forth exceptions to this presumption, none of which is applicable here (citing

Tosado v. Miller, 188 Ill. 2d 186, 196 (1999))); see also People v. Allard, 2018 IL App (2d)

160927, ¶ 54 (with two exceptions not applicable here, a judicial decision that establishes a new

rule applies to all criminal cases pending on direct review (citing People v. Smith, 2015 IL 116572,

¶ 24)).

¶ 22 The State further maintains that the prohibition against double jeopardy would not bar a

retrial, because the expert opinion in this case “lacks the proper foundation” and, therefore, was

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“improperly admitted.” The State cites generally, and erroneously, to Murray for this proposition.

See Murray, 2019 IL 123289, ¶ 59 (Kilbride, J., specially concurring, joined by Karmeier, C.J.)

(“The critical question here is not the propriety of admitting the expert testimony but whether that

testimony is sufficient to establish part of the State’s prima facie case.”) Under Murray, therefore,

O’Neil’s testimony was properly admitted but insufficient to prove the “course or pattern of

criminal activity” element of the UPF offense. We determine that jeopardy has attached and that

defendant may not be retried on this charge.

¶ 23 B. Double Enhancement: Aggravated Unlawful Use of a Weapon

¶ 24 Defendant argues that his nine-year sentence for aggravated unlawful use of a weapon

“reflects an impermissible double enhancement” because the trial court used one of his previous

Class 2 felonies to both elevate his AUUW conviction from a Class 4 offense to a Class 2 offense

under section 24-1.6(d)(3) of the Code (720 ILCS 5/24-1.6(d)(3) (West 2014)) and to subject him

to Class X sentencing under section 5-5-3(c)(2)(F) of the Unified Code of Corrections (730 ILCS

5/5-5-3(c)(2)(F) (West 2014)). See People v. Gonzalez, 151 Ill. 2d 79, 84-85 (1992) (“There is a

general prohibition against the use of a single factor both as an element of a defendant’s crime and

as an aggravating factor justifying the imposition of a harsher sentence than might otherwise have

been imposed.” (Emphasis in original.)). We review de novo an allegation of a double

enhancement. People v. Phelps, 211 Ill. 2d 1, 12 (2004).

¶ 25 Defendant recognizes that this error has been forfeited because it was not raised below.

Defendant argues, and the State agrees, that an issue of double enhancement is reviewable under

the second prong of the doctrine of plain error. People v. Owens, 377 Ill. App. 3d 302, 304 (2007).

The State also agrees with defendant that this case is nearly identical to Owens, where the court

held that the circuit court had committed second-prong plain error by using the same Class 2 felony

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twice to subject an AUUW defendant to Class X sentencing. Id. at 304-06. Finally, the State

concedes that defendant’s sentence for AUUW should be reduced to seven years.

¶ 26 We agree that the analysis in Owens is applicable and persuasive. Accordingly, pursuant

to our powers under Illinois Supreme Court Rule 615, we reduce defendant’s AUUW sentence

from nine to seven years. See Ill. S. Ct. R. 615(b)(4) (eff. Jan. 1, 1967) (reviewing court may

reduce punishment imposed by trial court).

¶ 27 III. CONCLUSION

¶ 28 For the reasons stated, we vacate defendant’s conviction of and sentence for UPF and

reduce his sentence for aggravated unlawful use of a weapon AUUW from nine to seven years.

¶ 29 Vacated in part, sentence reduced.

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No. 2-16-0722

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 14-CF- 1144; the Hon. Robert A. Miller, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and April D. Kentala, of for State Appellate Defender’s Office, of Elgin, for appellant. Appellant:

Attorneys Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne for Hoffman and Edward R. Psenicka, Assistant State’s Attorneys, Appellee: of counsel), for the People.

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