People v. Calhoun

2021 IL App (1st) 180111-U

Opinion

2021 IL App (1st) 180111-U No. 1-18-0111 Order filed June 30, 2021 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County ) v. ) No. 11 CR 2889 ) DIONTAE CALHOUN, ) Honorable ) William H. Hooks, Defendant-Appellant. ) Judge presiding.

JUSTICE BURKE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction for first-degree murder where there was sufficient evidence to convict him of the offense and the trial court did not abuse its discretion in precluding him from presenting evidence of the violent character of his victim as well as three individuals involved in the case. We also affirm defendant’s 65-year sentence where the trial court did not excessively sentence him, but we modify his mittimus to reflect only one conviction for first-degree murder and a three-year term of mandatory supervised release. No. 1-18-0111

¶2 Following a jury trial, the jury found defendant Diontae Calhoun guilty of first-degree

murder and that, during the commission of the offense, he personally discharged a firearm that

proximately caused death. The trial court subsequently sentenced him to 40 years’ imprisonment

for the first-degree murder and then imposed the mandatory 25-year enhancement for personally

discharging a firearm that caused death for a total sentence of 65 years’ imprisonment. On appeal,

defendant contends that: (1) the State failed to sufficiently prove his guilt for first-degree murder;

(2) the trial court erred in barring evidence of the violent character of the victim as well as three

individuals involved in the case; (3) his 65-year sentence was excessive; and (4) his mittimus must

be corrected to reflect that he was convicted and sentenced on only one count of first-degree

murder and to reflect the statutorily authorized term of three years of mandatory supervised release.

For the reasons that follow, we affirm defendant’s conviction and sentence, but amend his

mittimus, as requested.

¶3 I. BACKGROUND

¶4 A grand jury indicted defendant with six counts of first-degree murder for the January 10,

2011, shooting death of Eric Thompson. Relevant here is Count V, which alleged that defendant,

without lawful justification, intentionally or knowingly shot and killed Thompson while armed

with a firearm, and during the commission of the offense, he personally discharged a firearm that

proximately caused death.

¶5 A. Lynch Motion

¶6 In defendant’s answer to the State’s motion for discovery, he asserted that he may raise

self-defense at trial and that he may call various witnesses to testify about the violent character of

Thompson and other people present at the scene of the shooting. Defendant subsequently filed a

motion to admit evidence pursuant to People v. Lynch, 104 Ill. 2d 194 (1984) and Illinois Rules of

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Evidence 404(a)(2) and 405(b)(2) (eff. Jan. 1, 2011). In the motion, defendant claimed the

evidence indicated that he was being confronted by various people in an apartment building

hallway, including Thompson, Michael Craig, Edward Bibbs, Jr., and Shensky Berry, when the

shooting occurred. As such, defendant sought to present evidence regarding the violent and

aggressive nature of these four men.1

¶7 Concerning Thompson, defendant sought to introduce evidence that Thompson punched a

man in the mouth in October 2006, and the police arrested him for the incident. Concerning Craig,

defendant sought to introduce testimony from a woman who he allegedly battered in August 2003

as well as testimony from the police officers who arrested him for the incident, a certified copy of

disposition for murder from a 1988 case, testimony from a woman who Craig allegedly raped in

February 1986 as well as testimony from the police officer who arrested Craig for the incident,

and a certified copy of disposition for rape from a 1981 case. Concerning Edward, defendant

sought to introduce testimony from a man who alleged that Edward threatened to beat him in

August 2009 as well as the police officer who arrested Edward for the incident, testimony from a

woman who alleged that Edward threatened to kill her during a verbal altercation in April 2006,

testimony from a woman who alleged that he beat her and threatened to kill her in September 2003

and hit her again in December 2005, as well as the police officers who arrested Edward for these

incidents, in addition to various other instances of Edward being allegedly violent.

¶8 Concerning Berry, defendant sought to introduce testimony from Berry’s mother that he

battered her in May 2013 and the police officer who arrested Berry for the incident, a certified

copy of disposition for domestic battery from a 2013 case—presumably the incident involving

1 Edward Bibbs, Jr., will be referred to as Edward because he shares the same last name as multiple people in this case.

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Berry’s mother—evidence of multiple instances where Berry was violent with the same woman in

March 2012 and August 2001, including testimony from the police officers who arrested him for

these incidents, a certified copy of disposition for domestic violence from a case in 2011, a certified

copy of disposition for domestic assault from a case in 2009, evidence of multiple instances where

Berry allegedly became violent with a woman he knew was pregnant with his child in 2007, and

various other instances of Berry being allegedly violent. In total, defendant sought to introduce

approximately 50 witnesses to testify about various incidents involving Thompson, Craig, Edward

and Berry, some postdating the shooting death of Thompson by two years and some as far back as

30 years before his death. With the exception of Craig’s murder conviction, defendant argued all

the other actions of Thompson, Craig, Edward and Berry were admissible to support his version

of the facts where there were conflicting accounts of what occurred on the night of January 10,

2011. The State responded and objected to defendant’s request to admit the character evidence of

Thompson, Craig, Edward and Berry.

¶9 In a written order, the trial court observed that Thompson was the victim in the case, while

Craig, Edward and Berry were allegedly present at the scene at the time of the shooting. The court

observed the two prongs of Lynch, one being to show the defendant’s knowledge of his victim’s

violent tendencies and two, to support the defendant’s version of events where there were

conflicting accounts of what happened. The court noted that all of the proffered evidence fell into

the second prong except for the evidence of Craig’s murder conviction. Concerning the evidence

that Thompson allegedly punched a man in October 2006, the court found the incident too remote

temporally and that the act did not involve anyone related to defendant’s case. Therefore, the court

denied defendant’s request to introduce evidence of Thompson’s alleged battery at trial.

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¶ 10 Concerning the character evidence of Craig, Edward and Berry, the trial court relied on

People v. Figueroa, 381 Ill. App. 3d 828 (2008), and concluded that Lynch did not apply because

the three men were not defendant’s victims. Furthermore, regarding Craig’s murder conviction,

beyond whether Lynch applied to nonvictims, the court remarked that defendant did not know

Craig, so it was impossible for defendant to have knowledge of Craig’s murder conviction and

alleged violent tendencies. Additionally, beyond these flaws, the court insinuated that many, if not

all, of the character evidence of the three men were too remote to be admissible. With regard to

Craig and Edward, the court highlighted that some of their prior acts of violence were quite old.

And with regard to Berry, the court noted that his prior acts of violence were “almost entirely

domestic in nature” and “range[d] from 15 years prior to the incident to postdating the incident.”

According to the court, “[a] remoteness factor is clearly relevant here” concerning the prior violent

acts of Craig, Edward and Berry. Consequently, the court denied defendant’s Lynch motion in all

respects.

¶ 11 B. Trial

¶ 12 1. State’s Case

¶ 13 The case proceeded to a jury trial, where, in the State’s case, Tiffany Bibbs testified that

she had a son with defendant and that in January 2011, they had an on-again and off-again

relationship. 2 On January 8, 2011, Tiffany had a birthday party for her daughter that defendant

appeared at uninvited. At the party, Tiffany and defendant had a brief argument about her paying

for his phone bill, which she had refused to do. Afterward, defendant left the party.

2 Witnesses will be referred to by their first name when they share a last name with someone else involved in the case.

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¶ 14 In the evening of January 10, 2011, Tiffany went to a party at a four-story multi-unit

apartment building located on the 4100 block of West Wilcox Street in Chicago. Various members

of Tiffany’s family lived in the building, including her sister, Theresa Bibbs, on the second floor

and her niece, Cheree Span, on the first floor as well as some cousins, Ricky Clay and Cornelius

Clay, who also lived on the first floor next to Span’s apartment. When Tiffany arrived at the

building, she dropped off the son she shared with defendant with Theresa, who lived with her

boyfriend, Michael Craig. Tiffany then went downstairs to Span’s apartment, where people were

hanging out and drinking. In Span’s apartment at various points in the night were Tiffany’s sister,

Veronica Bibbs, Tiffany’s niece, Bianca Bibbs, Tiffany’s cousin, Natasha Clark, Tiffany’s

nephew, Eric Thompson, Craig, Shensky Berry, a family friend, and other family members.

¶ 15 At some point in the night, Tiffany learned that defendant had shown up uninvited. When

she learned this detail, she went upstairs to Theresa’s apartment to check on her son, who was

sleeping. However, Tiffany observed defendant along with Craig. Defendant began grabbing her,

asking her if she missed him and telling her that she was his “b*** forever.” Tiffany told defendant

to let her go and leave her alone. She then went downstairs to the first floor where she saw Scott

Hicks, who worked as a contractor for Dish Network. Hicks, who had a felony conviction for theft,

was often at the building for work and became friends with some of the tenants, including Tiffany.

¶ 16 Shortly after Tiffany ran into Hicks, defendant appeared and began angrily asking if

Tiffany and Hicks were intimate together. After Tiffany responded no, defendant grabbed her,

pulled on her hair and again told her she was his “b***.” When Tiffany told him they were broken

up and to leave her alone, defendant poured liquor on her head. Hicks corroborated Tiffany’s

account and observed defendant pull Tiffany’s hair and pour liquor on her face. Other members of

Tiffany’s family witnessed defendant’s actions, including Span, who observed defendant “choke

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her, pull her hair, push her to the wall and thr[o]w alcohol in her face.” Similarly, Clark, who had

a felony drug conviction and had given the police aliases various times over the years, saw

defendant grab Tiffany’s hair, grab her by the back, throw her against a wall and pour liquor on

her face. When this occurred, a couple children, including Tiffany’s 10-year-old son, came out

into the hall with broomsticks, but Hicks told them to stay inside. Other adults came into the

hallway, too, but no one intervened except for Hicks, who only did so verbally and told defendant

to stop. This made defendant angry, but ultimately caused him to stop. According to Tiffany, as

defendant was leaving, he said he would be back with a gun, though, at trial, she acknowledged

not telling the police this detail. However, Hicks also heard defendant say that he was going to get

his gun. Additionally, Span heard defendant tell Tiffany that he was going to be back and “kill

her,” though, at trial, Span acknowledged not telling the police this detail. Clark similarly heard

defendant say he would be back and observed that he left on his own accord, with no one forcing

him out physically.

¶ 17 Once defendant left, Hicks became immediately shaken by defendant’s threat and called

the police. According to Hicks, the police arrived, but because defendant was not there, they left.

Hicks likewise left the apartment building. As he left in his vehicle, he observed defendant walking

down a nearby street toward the apartment building. They made eye contact, but Hicks continued

on his way home.

¶ 18 After the altercation with defendant, Tiffany went back into Span’s first-floor apartment.

About an hour later, Clark told Tiffany that defendant was back. Tiffany did not want to see him,

so she stayed in the apartment. Shortly thereafter, Berry, who had been previously convicted of

felony domestic battery, knocked on Span’s door looking for Tiffany. When Tiffany cracked

opened the door to see Berry, she observed defendant walk behind him. Defendant then raised his

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shirt and revealed part of a firearm. Tiffany shut the door and told her family that defendant was

trying to scare her with a firearm. Tiffany thought the firearm was fake because, in the past,

defendant had told her he used a fake gun to rob people. A little while later, according to Span,

Thompson, who had been hanging out in her apartment, left and went to smoke marijuana with

some other family members. At trial, Clark denied going to smoke with Thompson, explaining

that she only smoked cigarettes.

¶ 19 A little later, according to Craig and Berry, Thompson and defendant became involved in

an argument in the hallway of the second floor. Berry observed that Thompson was upset that

defendant had “touch[ed]” Tiffany, his aunt. Berry joined in and began arguing with defendant,

too. But, during the argument, defendant pulled out a sawed-off, double-barrel shotgun, causing

Berry to leave and go down to the first floor. Around this time, Craig also left the second floor and

walked with Thompson back toward Span’s first-floor apartment. As they were walking, Craig did

not see anything in Thompson’s hands, and Craig himself did not have anything in his hands.

Defendant followed Thompson, and they began arguing again in the hallway of the first floor.

¶ 20 From Span’s apartment, Tiffany, Span and Clark could hear arguing outside in the hallway

and then a knock on the front door. Span heard defendant scream and yell “[f]*** you” while Clark

heard him yell “[f] this, I don’t have to take this.” Veronica also heard the arguing, and at trial, she

denied that she had witnessed the earlier argument between defendant and Thompson. According

to Berry, who was in the first-floor hallway, Thompson told defendant that he “ain’t going to do

none of that.” When Clark opened the front door, she, Veronica and Tiffany could see Thompson.

For a few seconds, Tiffany could see that Thompson and defendant were still arguing. According

to Tiffany, defendant then said “no, f*** you,” walked up behind Thompson, took out a sawed-

off double-barrel shotgun and shot Thompson in the head. The gunshot caused Thompson to fall

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flat on his head into the door frame. The shooting was also witnessed by Clark, Craig, Berry, Span

and Veronica. Clark observed that, when defendant appeared behind Thompson, Thompson turned

his head slightly over his shoulder and then was shot. Though, at trial, Clark acknowledged not

telling the police this detail. Craig, who was approximately 10 feet away, did not observe anyone

near defendant. Berry was down the hallway when the shooting happened, and from what he could

remember, no one was touching defendant when he shot Thompson. Berry, though, could not

remember who was in the hallway when the shooting occurred. Tiffany, Veronica and Clark

likewise did not see anyone near defendant when he shot Thompson. From Span’s vantage point,

she did not see anyone around defendant or fighting with him when he shot Thompson. Craig

observed defendant leave the building, and at trial, denied chasing after him. Someone then called

the police.

¶ 21 Chicago Police Detective Brian Drees arrived at the apartment building after the shooting

and found that the building had four security cameras, three on the exterior and one in the foyer.

In reviewing the video from these cameras, Detective Drees observed a subject that appeared to

be defendant enter the building at 9:29 p.m. and leave the building 10 minutes later. Additionally,

Detective Drees observed a subject that appeared to be defendant enter the building again at 11:13

p.m. and then, a little bit later, running out of the building carrying what appeared to be a shotgun.

The next day, Monica Tate, who lived about a block and a half away from the apartment building,

found a firearm that looked like a small rifle in her garbage bin. She called the police, who

responded and recovered the firearm. Ultimately, on January 25, 2011, officers with the Waukegan

Police Department arrested defendant in Waukegan, Illinois.

¶ 22 A forensic investigator with the Chicago Police Department took biological swabs from

the firearm Tate discovered, which were then sent to the Illinois State Police for further testing and

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analysis. A forensic scientist with the Illinois State Police determined that DNA recovered from

the shotgun matched the known sample of defendant. The shotgun itself was analyzed by Kurt

Murray, a forensic scientist with the Illinois State Police and expert in the field of firearms and

toolmarks examination. At trial, Murray described the firearm as a 100-year-old sawed-off double-

barrel shotgun that had epoxy added to the action frame that prevented him from examining the

firearm internally. Murray stated that the shotgun required a single action to shoot from either

barrel, meaning someone would have to manually cock the hammer and then pull the trigger to

shoot the weapon. Murray added that the shotgun was not meant to fire modern ammunition, but

rather only black powder cartridges. When he test fired the shotgun, he found that the right trigger

performed as he would have expected, but the left trigger needed less force to fire and it was

possible to fire from the left barrel without cocking the hammer if more force was used, in part,

because the left side did not have an additional safety notch. During his testimony, Murray noted

several safety concerns with the shotgun, including the potential for an accidental discharge

because the hammer of the shotgun could strike the firing pin without a pull of the trigger.

Moreover, Murray concluded that the shotgun could have accidentally discharged either with or

without the hammer cocked, the latter if enough force was applied to the hammer itself or directly

to the firing pain.

¶ 23 The medical examiner ruled that Thompson’s cause of death was a shotgun wound to the

head and the manner of death was a homicide. The medical examiner concluded that the wound

was to Thompson’s left side and the “wound course” was from front to back. The toxicology report

indicated that Thompson tested positive for ethanol, but negative for benzoylecgonine and

opiates—the only substances for which he was tested.

¶ 24 2. Defense’s Case

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¶ 25 In the defense’s case, Ricky Clay testified that, on January 10, 2011, he lived in the

apartment building located on the 4100 block of West Wilcox Street, specifically on the first floor,

where he also was employed as a maintenance worker. Clay lived directly next to Span’s apartment

and had a brother and cousins who lived in the building on various floors, including Theresa. Clay

and Thompson were also cousins. On the night of January 10, Clay was in his apartment along

with his brother, Cornelius, and a friend nicknamed L.B. While the three of them were eating, Clay

heard the loud voices of Thompson, Edward Bibbs, Jr., another one of Clay’s cousins, and Craig.

Clay looked through his peephole and observed Edward, Craig and defendant, who was just

standing outside Clay’s door and not really doing anything. Clay also heard Edward and Craig

attempting to “kill” the confrontation. Then, Clay observed someone, who he believed was

Thompson, point his finger at defendant and poke defendant in the forehead, but he could not see

the person because his view outside into the hallway was partially obstructed by a column. Clay

then heard Thompson call defendant a “punk-a** mother***” and then threaten to kill him if he

tried to “touch” Tiffany again. Clay did not see anyone move, but shortly thereafter, he heard a

loud noise and later learned that Thompson had been shot.

¶ 26 Defendant testified that, in January 2011, he worked in construction and had been in an on-

again, off-again relationship with Tiffany, with whom he shared a son. During this time, defendant

owned a sawed-off shotgun that he had purchased a year earlier on the street for protection after

he had been robbed. When he bought it, the firearm was already loaded, and he did not make any

modifications to it. Defendant had never shot it before January 2011, and it had never accidentally

discharged in the year he had owned the weapon.

¶ 27 On January 10, 2011, defendant went to the apartment building on the 4100 block of West

Wilcox Street to visit his son and had the shotgun with him, as he carried it all of the time. When

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defendant arrived, he observed there was a party going on with about 20 family members and

friends of Tiffany’s. At some point after arriving, he became involved in argument with Tiffany

because she was talking to Hicks, someone defendant did not know. Eventually, during the

argument, defendant threw liquor on her. After Tiffany pushed him, defendant pushed her off of

him and left the apartment building. At trial, he denied ever physically touching Tiffany any other

time during their argument, denied saying that he would be back with a firearm and denied saying

that he was going to kill someone. After leaving the building, he walked a couple blocks away and

smoked a cigar.

¶ 28 Later, defendant returned to the apartment building so that he could see his son. When he

arrived, he was on the first floor and observed five or six people, some of whom he recognized,

including Clark. Defendant asked her if she would get Tiffany for him because he wanted to talk

to her about their son. Clark went to an apartment on the first floor, and after Tiffany opened the

door, she immediately shut it. At trial, defendant denied flashing a firearm at her. Next, defendant

went up the second floor to see his son, but he was unable to because he was approached by

Thompson and Berry, who asked why defendant was “f***ing” with Tiffany. One of them had a

metal object, but defendant could not tell what it was, so he pulled out his shotgun and told

Thompson and Berry “to get back.” Both Thompson and Berry walked past defendant and left the

second floor. Defendant was “afraid” so he tried to leave the apartment building and went down

the stairs but encountered five or six people, including Edward, Craig, Berry and Thompson.

Thompson began “poking” defendant in the forehead and threatening to kill him. In response,

defendant again took out his shotgun to scare Thompson, but suddenly, the group attacked him,

punched him in the mouth and tried to grab the shotgun. According to defendant, some members

of the group had knives and someone had a bat. During the tussle, defendant claimed the shotgun

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accidentally discharged. Defendant had no clue if someone had been shot, but wanted to get away

from the apartment building, so he ran and thew the shotgun in a garbage bin a couple blocks away.

Defendant learned the next day that Thompson had been shot and killed. At trial, defendant denied

intentionally pulling the trigger and asserted that he had no idea what caused the firearm to

discharge.

¶ 29 About two weeks later, defendant was arrested by the police in Waukegan, but, at trial, he

could not recall talking to them about the night of the shooting, though he acknowledged watching

a videotaped conversation with the police about that night. However, at trial, defendant stated he

watched the video a long time ago and could not remember anything he said. Defendant did not

go the police on his own because he was scared of being incarcerated. During the trial, the trial

court allowed the defense over the State’s objection to play defendant’s complete statement to the

police under the rule of completeness. In the videotaped statement, defendant acknowledged that

he had an argument with Tiffany about Hicks and threw liquor on her. However, he claimed that,

later, Tiffany’s cousins surrounded him and attacked him, which caused the shotgun to discharge.

Defendant told the police that he was afraid of Tiffany’s family because they had previously

attacked him and another time, her family attacked a person so badly that the person was

unrecognizable afterward.

¶ 30 The defense’s last witness was Matthew Noedel, an expert in firearm examination and

crime scene reconstruction. Noedel testified extensively about defendant’s shotgun and

immediately noted that, when a firearm had been modified, there was the potential for accidental

discharges. Additionally, due to the age of the firearm, he observed there had been epoxy and non-

original screws put into the firearm that were “holding it together.” Due to the modifications of

the firearm, Noedel determined that the shotgun was essentially “two guns fused together” with

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independent firing mechanisms on both sides. Neither side had an external safety, and although

both sides had a “rebound” safety, the left side’s rebound safety was not operational. Given the

shotgun’s age and modifications, Noedel concluded that it could accidentally discharge, which

meant that the shotgun could discharge without anyone pulling the trigger or the hammers being

cocked. Noedel tested this by, in part, taking an eight ounce plastic mallet and lightly hitting the

uncocked hammer of the shotgun in various places. Noedel was able to get both barrels to

¶ 31 The parties stipulated that Craig told a detective that, after the shooting, he chased

defendant outside the building, but could not catch him. They further stipulated that Clark told a

detective that she had smoked a “blunt” the night of the shooting. The parties also stipulated that

Veronica told a detective that she witnessed defendant and Thompson arguing and tried to break

up their fight. Lastly, they stipulated that Tiffany never told the police, a state’s attorney or testified

to during her grand jury appearance that, before defendant shot Thompson, he said “[f]*** you.”

¶ 32 C. Jury Instructions, Closing Arguments and Verdict

¶ 33 Following the defense’s case, the parties discussed the jury instructions, and the trial court

allowed the jury to be instructed on the defense’s theories of self-defense, second-degree murder

and involuntary manslaughter.

¶ 34 In the State’s closing argument, it asserted that defendant was angry with Tiffany,

highlighting the evidence of her refusal to pay his phone bill and then seeing her speaking with

Hicks on the night of the shooting. Defendant’s anger, according to the State, led him to become

violent with Tiffany and ultimately pour liquor on her. Once confronted verbally by Hicks,

defendant left and remarked that he would return with a firearm. The State noted that, when

defendant returned, he tried to see Tiffany again, but she rebuffed him. Then, defendant got into a

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verbal confrontation with Berry and Thompson. The State pointed out that its witnesses

consistently testified that no one was around defendant or physically fighting with him before he

shot Thompson in the head from point-blank range. The State concluded that the evidence pointed

only to defendant committing first-degree murder.

¶ 35 In the defense’s closing argument, defendant argued that Thompson’s death was an

“unintended accident.” Defendant highlighted his trial testimony, which was consistent with his

videotaped statements to the police, that he was confronted and attacked by multiple members of

Tiffany’s family, including Thompson, who threatened to kill him—a threat corroborated by Clay.

In response, defendant took out his shotgun in self-defense and during the struggle, the shotgun

accidentally discharged. Defendant observed that both experts concluded the gun could have

accidentally discharged due to its age and modifications. Defendant further highlighted that the

gunshot’s wound course was from Thompson’s front to back, which corroborated his theory that

Thompson had been in his face when the shotgun discharged and contradicted the State’s witnesses

who claimed that defendant shot Thompson from behind. Defendant also noted many alleged

discrepancies and incredible aspects of the testimony of the State’s witnesses as well as their biases

being related to, and friends with, Tiffany and Thompson. Defendant concluded that the State

failed to prove that he committed first-degree murder and remarked that if his actions constituted

anything that night, it was involuntary manslaughter for recklessly waving the shotgun.

¶ 36 Following closing arguments, the jury found defendant guilty of first-degree murder and

that, during the commission of the offense, he personally discharged a firearm that proximately

caused death.

¶ 37 D. Posttrial and Sentencing

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¶ 38 Defendant filed a motion for new trial, in part, arguing that the trial court erred in denying

his pretrial Lynch motion. The court, however, denied the motion, and the case proceeded to

sentencing. Defendant’s presentence investigative report revealed that he was 24 years old at the

time of the shooting and had been previously convicted of multiple nonviolent offenses. Defendant

reported that he consumed alcohol once a week and regularly used marijuana. He also had received

disability benefits for a learning disability since he was 8 years old and had been hospitalized for

mental health issues when he was 15 years old.

¶ 39 At defendant’s sentencing hearing, the trial court observed that the sentencing range for

first-degree murder, including a 25-year enhancement based on defendant’s personal discharge of

a firearm proximately causing death, was between 45 and 85 years’ imprisonment. The State

presented Joseph Danzl, a deputy director with the Cook County Sheriff’s Office, who testified

that defendant had “exposed” himself in jail and had picked up two additional charges in jail: one

for aggravated battery to a corrections officer and another for possessing contraband in jail. The

defense tendered various character letters from defendant’s family and friends, which highlighted

the various difficulties he had growing up and indicated that he helped support his children.

¶ 40 The State argued that, based on defendant’s actions of January 10, 2011, as well as his

subsequent actions in jail, he was a “petulant child” who did “horrible things” when he did not get

his way. The State highlighted that, when defendant did not get his way with Tiffany, he poured

liquor on her and “ruffed her up.” The State noted that, when defendant returned that night with

the shotgun, he shot Thompson in the head for merely standing up for Tiffany. The State concluded

by requesting a sentence that “honor[ed]” Thompson, who “stood up” to defendant.

¶ 41 Defense counsel initially read two of the character letters in support of defendant: one from

Antoine McFadden, defendant’s uncle, and another from Alfrieda Shepard, a Chicago Public

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Schools employee who knew defendant. McFadden’s letter detailed defendant’s difficult

upbringing, including that his father and best friend had both been murdered. McFadden’s letter

also noted that defendant himself was robbed and pistol whipped in 2009, which prompted him to

carry the shotgun for protection. McFadden believed that these tragic events led defendant “into a

state of fear every time he left home.” In Shepard’s letter, she described defendant as a “kind

hearted, generous, helpful” and “amazing person.” She observed that defendant’s shooting of

Thompson was out of character and an unfortunate “byproduct of his environment.” She believed

that defendant had accepted responsibility for his actions, had significant rehabilitative potential

and was currently working toward a better life in jail.

¶ 42 Based on the letters and presentence investigative report, defense counsel observed that

defendant had a learning disability and had to deal with many challenges in his life. Counsel noted

that, prior to his incarceration, defendant had been working in construction to help provide for his

children. However, the trial court interjected and asked counsel about the details of his

employment and proof of income from it. Counsel replied that she did not have any paystubs to

provide to the court. The court continued and asked to see proof that defendant “materially

supported” his children. Counsel replied that part of his monthly disability check went to support

his children and so did his earnings from his construction work. In closing, counsel highlighted

that, even a minimum sentence was significant, and requested that the court consider all aspects of

defendant before imposing a sentence. Additionally, defendant spoke in allocution. He apologized

to Thompson’s family, thanked his family for its support and thanked the trial court for a fair trial.

Defendant asserted that the shooting was an “accident,” and he did not intend to kill anyone.

¶ 43 The trial court initially remarked that it was not going to consider the alleged actions of

defendant while in jail. The court observed that defendant’s sentence was based on his murder of

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Thompson plus his use of a firearm, but highlighted the firearm was not a handgun, but rather “a

God awful [jerry]-rigged shotgun.” The court highlighted the brutal manner in which Thompson

died by being shot in the head and discussed its own experience in the military and in civil litigation

and the unfortunate requirement to view:

“pictures with respect to airline crashes, large airplanes crashes, and been involved

in litigation that shows horrific scenes where planes crash. Horrific scenes where

the Beirut Marines suffered, because the Marines had not set up the right perimeter

for what should have been a fortified area; and a truck bomb came in, and injured,

and killed, and disfigured a number of United States Marines who were victimized

by terrorists.”

The court concluded that, despite these experiences, the photographs in the instant case were “as

graphic or more graphic.”

¶ 44 The trial court highlighted defendant’s theory at trial of self-defense, but rejected it and

found that his actions were “no accident,” “not a defense of anything” and “not the defense of any

principle whatsoever, other than I want to take you out and show you how tough I am.” Instead,

the court asserted this was a shooting at close range with no “caring at all about the consequences.”

The court further highlighted defendant’s character letters from family and friends, and observed

that, in Shepard’s letter, she claimed that defendant had taken responsibility for his actions.

However, the court found that defendant had not accepted responsibility in any fashion until the

day he was to be sentenced. The court added that, while defendant had a learning disability and a

difficult upbringing, there were many similar children to defendant that did not grow up and

“become murderers.” The court then pondered aloud about “the proper relief for a community

that’s besieged with violence” and the type of message that needed to be sent to the next person

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like defendant. The court remarked that it had to consider the impact of the murder on Thompson’s

family, whether defendant was a “safety risk” to the community, the horrific nature of the crime

and the time it would take defendant to rehabilitate. In light of these factors and “the graphic and

vicious nature of the murder itself,” the court sentenced defendant to 40 years’ imprisonment for

the first-degree murder itself and then imposed the mandatory additional 25-year enhancement for

personally discharging a firearm that caused death for a total sentence of 65 years’ imprisonment.

¶ 45 Defendant filed a motion to reconsider his sentence. The record on appeal only contains

the cover sheet for the motion, but during the trial court’s discussion of it, the court observed that

defendant had raised an excessive sentencing challenge due to his “background” and “the nature

and his participation in the offense.” However, the court denied the motion, and defendant

subsequently appealed.

¶ 46 II. ANALYSIS

¶ 47 A. Sufficiency of the Evidence

¶ 48 Defendant first contends that his conviction should be reduced from first-degree murder to

involuntary manslaughter where no credible evidence established that he acted with the intent to

kill or knowledge the shotgun would go off but rather the credible evidence showed that he acted

recklessly when he pulled out and waved the antique shotgun at a group of men surrounding him

and threatening him.

¶ 49 When a defendant challenges the sufficiency of the evidence, the reviewing court must

determine if, after viewing the evidence in the light most favorable to the State, any rational trier

of fact could have found the elements of the offense proven beyond a reasonable doubt. People v.

Gray, 2017 IL 120958, ¶ 35. All reasonable inferences from the evidence must be made in the

State’s favor. People v. Hardman, 2017 IL 121453, ¶ 37. Under this standard of review, it is not

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the reviewing court’s role to retry the defendant. Gray, 2017 IL 120958, ¶ 35. And the reviewing

court will not substitute its judgment for that of the trier of fact on issues involving the credibility

of witnesses, the weight to be afforded to the trial evidence, the drawing of reasonable inferences

from the evidence and the resolution of conflicts within the evidence. Id. We may only reverse a

conviction if “the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a

reasonable doubt of the defendant’s guilt.” Id.

¶ 50 To prove that defendant committed first-degree murder in this case, the State had to prove

that he (1) performed the acts that caused Thompson’s death; (2) he intended to kill Thompson or

do great bodily harm to him, or knew that such acts would cause his death; and (3) he was not

justified in using the force he used. 720 ILCS 5/9-1(a)(1) (West 2010). Conversely, involuntary

manslaughter occurs when a person unintentionally causes the death of another person without

lawful justification by acts that are performed recklessly and are likely to cause death or great

bodily harm. 720 ILCS 5/9-3(a) (West 2010). “A person is reckless or acts recklessly, when he

consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result

will follow, described by the statute defining the offense; and such disregard constitutes a gross

deviation from the standard of care which a reasonable person would exercise in the situation.”

720 ILCS 5/4-6 (West 2010).

¶ 51 “The difference between involuntary manslaughter and first degree murder lies in the

mental state that accompanies the conduct resulting in the victim’s death.” People v. Robinson,

232 Ill. 2d 98, 105 (2008). The defendant’s mental state frequently must be inferred from

circumstantial evidence. People v. Eubanks, 2019 IL 123525, ¶ 77. Specifically, a defendant’s

intent to kill may be inferred from “the character of the defendant’s acts and the circumstances

surrounding the commission of the offense [citation], including the character of the assault, the

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nature and seriousness of the injury [citation], and the use of a deadly weapon [citation].” In re

T.G., 285 Ill. App. 3d 838, 843 (1996). The trier of fact may infer a specific intent to kill if

surrounding circumstances demonstrate that the defendant “intended the willfully committed act,

‘the direct and natural tendency of which is to destroy another’s life.’ ” People v. Ephraim, 323

Ill. App. 3d 1097, 1110 (2001) (quoting People v. Migliore, 170 Ill. App. 3d 581, 586 (1988)).

Indeed, “ ‘[t]he very fact of firing a gun at a person supports the conclusion that the person doing

so acted with an intent to kill.’ ” Id. (quoting People v. Thorns, 62 Ill. App. 3d 1028, 1031 (1978)).

But the mere fact that a defendant discharged a firearm without more is generally insufficient to

establish an intent to kill. Id. “The determination of a defendant’s mental state is generally a

question of fact for a jury to decide and is particularly appropriate for resolution by a jury when

the evidence on the issue is conflicting.” People v. Yeoman, 2016 IL App (3d) 140324, ¶ 19.

¶ 52 In the present case, the jury heard two different versions of what occurred on January 10,

2011. In the State’s version, defendant was jealous and bitter after Tiffany refused to pay his cell

phone bill two days earlier, rejected his advances the night of January 10 and then saw her talking

to Hicks at the party. This caused defendant to become violent with Tiffany, pour liquor on her

face and then leave the party. When defendant returned, he did so with a shotgun and got involved

in a confrontation with Thompson, who was angry about defendant’s behavior toward his aunt.

According to the State and its witnesses, defendant did not appreciate being confronted over his

actions, so he took his shotgun and, without any physical provocation, shot Thompson from point-

blank range in the head. Conversely, in defendant’s version, as testified to by him and Clay,

Thompson, Edward, Berry and Craig all were surrounding him. Thompson, in particular, became

very agitated, and poked defendant in the forehead and threatened to kill him. As such, according

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to defendant, he took out his shotgun in self-defense, but the group attacked him with knives and

a baseball bat. And, at some point during this tussle, the shotgun accidentally discharged.

¶ 53 In the State’s version, defendant acted in cold blood and intentionally shot defendant

without any legal provocation. In defendant’s version, defendant was only defending himself and

the firearm discharged when he recklessly took it out. This case presented a credibility contest

between the State’s witnesses and the defense’s witnesses. It is true that the State’s witnesses were

impeached on various matters based on prior statements they had given and they were either related

to Thompson and Tiffany, or friends with them or their family. However, what role their

inconsistent statements and potential biases may have had on the credibility of their testimony was

entirely within the purview of the jury to resolve. See People v. Hernandez, 319 Ill. App. 3d 520,

533 (2001) (“Inconsistencies in the testimony of the witnesses, bias or interest affecting their

credibility, and the weight to be given to the testimony of witnesses are for the trier of fact to

determine.”). It is also true that most of the State’s witnesses testified that defendant came up from

behind Thompson and shot him in the back of the head, though Clark testified that Thompson

turned his head slightly over his shoulder and then was shot. This testimony did tend to contradict

the forensic evidence that Thompson had a wound to the left side of his head and the wound course

was front to back. However, it is unrealistic to expect witnesses who view traumatic events,

especially when those witnesses are related to the victim, to describe the events perfectly. See

People v. Rodriquez, 100 Ill. App. 3d 244, 248 (1981) (finding “[i]t is unrealistic to expect

witnesses to a sudden, violent stabbing to describe it with ‘stop action’ accuracy,” and “[t]he exact

positions of the parties and the precise sequence of their actions would be difficult for anyone to

recreate perfectly”). Whether their testimony conflicted with the forensic evidence and what

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weight to assign to their testimony given those potential conflicts was entirely within the purview

of the jury to decide. See Gray, 2017 IL 120958, ¶ 35.

¶ 54 Similarly, although both the State’s expert and the defense’s expert opined that the shotgun

could have accidentally discharged based on its age and modifications, the jury was not required

to believe that the firearm did actually accidentally discharge in this case, but rather was merely

required to listen to the testimony and determine its relative weight. See People v. Hill, 297 Ill.

App. 3d 500, 517-18 (1998). Ultimately, the jury had a choice about whose version to believe and

what culpability, if any, defendant had that night. The jury believed the State’s version and that

defendant acted intentionally in shooting Thompson. Reviewing courts generally should not

second-guess these determinations. See Gray, 2017 IL 120958, ¶ 35; People v. Siguenza-Brito,

235 Ill. 2d 213, 228 (2009). Although we generally should not second-guess a jury’s credibility

determinations, that does not mean we “ ‘rubber stamp’ credibility determinations.” People v.

Macklin, 2019 IL App (1st) 161165, ¶ 19. “[W]hen identifiable factors undermining those

determinations exist, it is appropriate to conclude that a court or jury acted unreasonably in

accepting a witness’s testimony.” Id. However, that is not the case here where the State had

multiple witnesses testify to defendant’s legally unprovoked shooting of Thompson. And, as a

result, the evidence of defendant committing first-degree murder was not so unreasonable,

improbable, or unsatisfactory that it justifies a reasonable doubt of his guilt. See Gray, 2017 IL

120958, ¶ 35.

¶ 55 Nevertheless, defendant attempts to liken the facts of his case to those in People v. Hoover,

250 Ill. App. 3d 338 (1993). In that case, as the defendant was wrestling with her victim in a

vehicle, a loaded firearm she was holding discharged. Id. at 346. Despite claiming the firearm

accidentally discharged, the defendant was found guilty of involuntary manslaughter. Id. at 344-

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347. On appeal, the defendant contended, in part, that the evidence was insufficient to prove she

was guilty of involuntary manslaughter where she acted in self-defense and alternatively, where

the shooting was only an accident. Id. at 349. However, because Hoover did not address the issue

of intent that this case presents, we find the case inapposite. See People v. Moore, 358 Ill. App. 3d

683, 688 (2005) (finding Hoover “not instructive” where it did not “address whether the evidence

was sufficient to establish the mental states of intent or knowledge,” as the case on appeal

presented). Consequently, the State sufficiently proved defendant guilty of first-degree murder.

¶ 56 B. Pretrial Lynch Motion

¶ 57 Defendant next contends that the trial court erred in barring evidence of Thompson, Craig,

Edward and Berry’s violent character, which would have supported his version of the events in

which those individuals surrounded and threatened him, causing him to brandish and wave the

shotgun in self-defense.

¶ 58 Generally, “[e]vidence of a person’s character or a trait of character is not admissible for

the purpose of proving action in conformity therewith on a particular occasion.” Ill. R. Evid. 404(a)

(eff. Jan. 1, 2011). There are some exceptions, however. See Ill. Rs. Evid. 404, 405 (eff. Jan. 1,

2011). Relevant here is the Lynch exception. Pursuant to Lynch, 104 Ill. 2d at 199-200, when the

defendant raises the theory of self-defense, evidence of the victim’s aggressive and violent

character is relevant to (1) show that “the defendant’s knowledge of the victim’s violent

tendencies” affected “his perceptions of and reactions to the victim’s behavior” or (2) “support the

defendant’s version of the facts where there are conflicting accounts of what happened.” See also

Ill. R. Evid. 404(a)(2) (eff. Jan. 1, 2011) (a criminal defendant may introduce—subject to certain

limitations in sex crime cases—character evidence of the victim); Ill. R. Evid. 405(b)(2) (eff. Jan.

1, 2011) (in a criminal homicide or battery case when the defendant raises self-defense and “there

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is conflicting evidence as to whether the alleged victim was the aggressor, proof may also be made

of specific instances of the alleged victim’s prior violent conduct”).

¶ 59 Under Lynch, character evidence serves two distinct purposes. The first purpose is to show

the defendant’s awareness of the victim’s character and how that knowledge affected his

perception of, and reaction to, the victim’s conduct. Lynch, 104 Ill. 2d at 200. “[U]nder the first

approach, the evidence is relevant only if the defendant knew of the victim’s violent acts.”

Figueroa, 381 Ill. App. 3d at 841. The second purpose is to corroborate the defendant’s version of

events when his version conflicts with other accounts of what happened. Lynch, 104 Ill. 2d at 200.

“Under the second approach, the defendant’s knowledge is irrelevant, but there must be conflicting

accounts of what occurred in order for the evidence to be admissible.” Figueroa, 381 Ill. App. 3d

at 841. Even if the character evidence is admissible under either of the two prongs of Lynch, such

evidence may be excluded where its probative value substantially outweighs the danger of unfair

prejudice, the risk of confusing or misleading the jury, or raises concerns about undue delays or

the presenting of cumulative evidence. Ill. R. Evid. 403 (eff. Jan. 1, 2011); People v. Martinez,

2019 IL App (2d) 170793, ¶ 79 (recognizing that “Rule 403 functions under the evidence rules as

the final threshold for admissibility; evidence otherwise admissible under the rules must meet its

criteria”).

¶ 60 Although defendant argues we should review this issue de novo, evidentiary rulings fall

within the sound discretion of the trial court, and we will not reverse such rulings unless the court

abuses that discretion. People v. Reid, 179 Ill. 2d 297, 313 (1997). An abuse of discretion occurs

when the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person

would take the view adopted by the court. People v. Illgen, 145 Ill. 2d 353, 364 (1991).

¶ 61 1. Character Evidence of Thompson

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¶ 62 Concerning the character evidence of Thompson—the victim in this case—defendant

sought to introduce evidence that Thompson punched a man in the mouth in October 2006 and the

police arrested him for the incident. In denying defendant’s request to present this evidence, the

trial court found the act too remote in time and that the act did not involve anyone related to his

case. The trial court may properly consider the temporal remoteness of a violent act in determining

whether to allow that evidence in under Lynch. People v. Barnes, 2017 IL App (1st) 143902, ¶ 49.

The court may also properly consider the context of the violent act in question. See People v. Ware,

180 Ill. App. 3d 921, 928 (1988). Here, the court’s two rationales for rejecting defendant’s request

to introduce evidence that Thompson had previously been arrested for punching a man in the

mouth were proper considerations. Moreover, we note that, at trial, Veronica, Thompson’s mother,

testified that he was 21 years old on the night he was killed, which meant he was either 16 or 17

years old when he punched the man in October 2006. There is undoubtedly a difference in

someone’s behavior at 16 or 17 years old as a juvenile than at 21 years old as an adult (see Graham

v. Florida, 560 U.S. 48, 68 (2010)), further buttressing the temporal remoteness of the punching

incident. See People v. Gumila, 2012 IL App (2d) 110761, ¶ 56 (observing that we may affirm the

trial court’s ruling “on any basis appearing in the record, regardless of whether it was relied on by

the trial court”). In light of these facts, we cannot say that the court’s ruling was arbitrary, fanciful,

unreasonable, or where no reasonable person would take the view adopted by the court.

Consequently, the trial court did not abuse its discretion in denying defendant’s request to

introduce the character evidence of Thompson.

¶ 63 2. Character Evidence of Craig, Edward and Berry

¶ 64 Concerning the character evidence of Michael Craig, Edward Bibbs, Jr., and Shensky

Berry, defendant sought to introduce copious amounts of evidence that these three men had acted

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violently several times in their lives. In denying defendant’s request to present this evidence, the

trial court primarily found that none of the men were victims in the case and therefore Lynch did

not apply.

¶ 65 As noted, defendant attempted to introduce the character evidence of these three men

pursuant to Lynch and Illinois Rules of Evidence 404(a)(2) and 405(b)(2) (eff. Jan. 1, 2011).

Initially, we note that, by clear their language, Rule 404(a)(2) and Rule 405(b)(2) only refer to a

victim. See id. In Lynch, 104 Ill. 2d at 198, the defendant’s son took the vehicle of Ernest Bell

without permission and wrecked it. The cost to repair the vehicle was more than what the defendant

could afford, which caused friction between him and Bell and resulted in Bell threatening the

defendant’s son. Id. One day, the defendant observed Bell’s vehicle outside his son’s residence.

Id. The defendant obtained a firearm and intended to bring it to his son for protection. Id. When

the defendant arrived at his son’s residence, Bell was there with a friend, Lester Howard. Id.

Ultimately, during the encounter, the defendant shot and killed Howard and claimed self-defense.

Id. at 198-99. During the defendant’s trial, defense counsel attempted to cross-examine Bell about

Howard’s prior battery convictions, but the trial court sustained the State’s objection to the line of

questioning. Id. at 199. The issue of whether that line of questioning was proper reached our

supreme court, who held “that when the theory of self-defense is raised, the victim’s aggressive

and violent character is relevant to show who was the aggressor, and the defendant may show it

by appropriate evidence, regardless of when he learned of it” and more specifically, in the two

scenarios we have already discussed. Id. at 200.

¶ 66 Since Lynch, our supreme court has mentioned the decision seven times. See People v.

Nelson, 2017 IL 120198, ¶ 21; People v. Morgan, 197 Ill. 2d 404, 454-58 (2001); People v. Blue,

205 Ill. 2d 1, 19 (2001); People v. Sanchez, 131 Ill. 2d 417, 425 (1989), abrogated by People v.

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Vincent, 226 Ill. 2d 1 (2007); People v. Gorney, 107 Ill. 2d 53, 60 (1985); People v. Hoffer, 106

Ill. 2d 186, 196 (1985) overruled by People v. Wright, 111 Ill. 2d 18 (1986); People v. Barnard,

104 Ill. 2d 218, 239 (1984) (Simon, J., dissenting). However, beyond Justice Simon’s dissent in

Barnard, our supreme court has only discussed Lynch in more than mere passing twice.

¶ 67 In Morgan, 197 Ill. 2d at 452-58, the court discussed Lynch and whether the trial court

erred in excluding evidence of the prior violent conduct of the defendant’s grandparents, who he

was convicted of murdering. In Blue, 205 Ill. 2d at 10-12, the court discussed Lynch and whether

the trial court erred by preventing the defendant from cross-examining multiple State witnesses

about their gang affiliation in a case where the defendant claimed he shot and killed his victim

based on a gang dispute. However, the court noted that Lynch was inapplicable to the issue on

appeal because the defendant sought to use the gang evidence “to expose the witnesses’ potential

bias against the defendant,” i.e., being in a rival gang, “not to show [the victim’s] character.” Id.

at 19. In light of our supreme court’s past discussions of Lynch, it is clear that the court has never

expanded Lynch to cover situations involving nonvictims.

¶ 68 This court, however, has discussed whether Lynch could be expanded to cover situations

involving nonvictims. In Figueroa, 381 Ill. App. 3d at 830-832, the defendant shot and killed an

innocent bystander while he was being chased in his own vehicle by two other vehicles being

driven by rival gang members. The defendant claimed he was acting in self-defense and requested

the ability to present evidence about the violent character of the two rival gang members in order

to explain why he fired his weapon. Id. at 831-32. The trial court did not allow him to do so unless

he himself testified at trial, which he chose not to do. Id. On appeal, the defendant relied on Lynch

and argued that the trial court erred by barring the introduction of the character evidence of the

two rival gang members. Id. at 840. Although the appellate court found various reasons why the

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character evidence was inadmissible, one such rationale was that the defendant had attempted to

introduce character evidence of individuals who were “at the scene but not his victims.” Id. at 843.

The court observed that the defendant had not been charged with murder of these two men but

rather of the innocent bystander. Id. The court concluded that “Lynch cannot apply here because

‘its predicate is missing’: [The rival gang members] were not defendant’s victims.” Id.

Consequently, the court would not “extend Lynch in this case to cover” the rival gang members.

Id.

¶ 69 Despite the lack of supreme court precedent, the presence of Figueroa and the clear

language of Illinois Rules of Evidence 404(a)(2) and 405(b)(2)—the two rules of evidence he

claimed the evidence was admissible under—defendant argues that the presentation of Lynch

material is not limited solely to victims, where the defendant claims he acted in self-defense against

a group of individuals and one of them happened to become the victim. In support of this

proposition, defendant highlights People v. Damnitz, 269 Ill. App. 3d 51 (1994) and People v.

Robinson, 163 Ill. App. 3d 754 (1987).

¶ 70 In Robinson, 163 Ill. App. 3d at 757, the defendant was charged with murder in the shooting

death of Homer Davis. The defendant claimed that, during a confrontation with Davis, one of

Davis’ friends pulled out a shotgun from underneath his coat. Id. at 759. The defendant asserted

that, in self-defense, he reached for the firearm, but it fell to the ground, accidentally discharged

and fatally struck Davis. Id. Ultimately, a jury found defendant guilty of murder. Id. at 756. On

appeal, the appellate court held that the defendant should have been allowed to introduce evidence

of the prior acts of violence against him by Davis—the victim—in order to show his state of mind

when he acted in self-defense against Davis’ friend. Id. at 774.

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¶ 71 In the present case, in contrast to Robinson, defendant sought to introduce the character

evidence of Craig, Edward and Berry, none of whom were his victim. We acknowledge that, in

Robinson, the appellate court favorably cited cases from foreign jurisdictions, where courts

allowed the character evidence of third persons when those third persons were acting together with

the victim. See id. at 773-74. However, the Robinson court’s discussion of these cases was not

essential to the outcome of the case nor an issue briefed by the parties, as the issue briefed was

about the character evidence of the victim, not a third party. As such, the discussion in Robinson

was merely obiter dicta, and it was not entitled to receive any weight by an inferior court. See

People v. Williams, 204 Ill. 2d 191, 206 (2003).

¶ 72 In Damnitz, 269 Ill. App. 3d at 53, as Francisco Vargas was driving, he heard something

hit his vehicle. When he exited his vehicle, he observed the defendant standing nearby, so Vargas

chased after the defendant, ultimately hitting him with a stick and knocking him to the ground. Id.

A short time later, the defendant shot Vargas. Id. The defendant sought to present evidence that

members of the Spanish Cobras street gang had firebombed his house and shot at him previously.

Id. The trial court only allowed the defendant to present evidence in which he could prove Vargas

had been involved and required him to make an offer of proof concerning the testimony of each

witness before that witness testified. Id. Ultimately, the court allowed defendant to present

evidence of an incident where Vargas, who was with members of the Spanish Cobras, threatened

to beat him up and evidence of an incident where Vargas and another person tried to start a fight

with him on the street, but not the firebombing or shooting incident. Id. Although the defendant

had been charged with attempted murder, among other charges, a jury convicted him of aggravated

battery and armed violence. Id.

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¶ 73 On appeal, the appellate court observed that there was some evidence that Vargas was

either a Spanish Cobra himself or at least the defendant reasonably believed he was one. Id. at 59.

The court noted that, when a defendant raised self-defense, he had the right to present evidence

regarding his state of mind to show that he reasonably believed that, to protect himself, he needed

to use the type of force he used. Id. Although the evidence that Spanish Cobra gang members had

firebombed the defendant’s house and shot at him previously did not involve Vargas himself, the

court found the evidence was “relevant, as it helps [the] defendant establish ‘the extent of his

apparent danger, and the motive influencing him’ [citation] when he shot Vargas, by showing that

[the] defendant reasonably believed Cobras were willing to use deadly force against him.” Id.

Consequently, the appellate court concluded that the trial court erred by preventing the defendant

from presenting evidence that the Spanish Cobras firebombed his house and shot at him previously.

¶ 74 However, despite the analysis in Damnitz, it never once cited Lynch and, indeed, the

evidence improperly precluded from evidence were acts of violence that the defendant himself had

experienced firsthand at the expense of relevant third parties, which were relevant to show his state

of mind, knowledge or motive at the time of the shooting. See Ill. R. Evid. 404(b) (stating that

evidence of other crimes, wrongs or acts are “not admissible to prove the character of a person in

order to show action in conformity therewith” but “[s]uch evidence may also be admissible for

other purposes, such as proof of motive *** [or] knowledge”). Conversely, in this case, as stated

explicitly in defendant’s pretrial Lynch motion, he sought to introduce essentially all of the

proffered evidence of the violent character of Craig, Edward and Berry under the second prong of

Lynch, which does not involve a defendant’s knowledge of the violent character of another. See

also Ill. R. Evid. 404(a)(2) (eff. Jan. 1, 2011) (a criminal defendant may introduce—subject to

certain limitations in sex crime cases—character evidence of the victim); Ill. R. Evid. 405(b)(2)

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(eff. Jan. 1, 2011) (in a criminal homicide or battery case when the defendant raises self-defense

and “there is conflicting evidence as to whether the alleged victim was the aggressor, proof may

also be made of specific instances of the alleged victim’s prior violent conduct”).

¶ 75 As previously noted, in defendant’s pretrial motion to admit Lynch material, he relied on

Lynch and Illinois Rules of Evidence 404(a)(2) and 405(b)(2) (eff. Jan. 1, 2011). Where our

supreme court has never expanded Lynch to cover nonvictims and this court has explicitly rejected

an attempt by a defendant to expand Lynch to nonvictims (see Figueroa, 381 Ill. App. 3d at 843)

combined with the fact that Illinois Rules of Evidence 404(a)(2) and 405(b)(2) only involve

victims, the trial court’s ruling to bar the character evidence of Craig, Edward and Berry was well-

grounded in law. Furthermore, because the Robinson court’s discussion of character evidence and

third parties was obiter dicta, it was not entitled to receive any weight by an inferior court. See

Williams, 204 Ill. 2d at 206. And Damnitz was not even cited in the trial court by defendant. As

such, we cannot say the trial court’s ruling was arbitrary, fanciful, unreasonable, or that no

reasonable person would take the view adopted by the court. Illgen, 145 Ill. 2d at 364.

Consequently, the trial court did not abuse its discretion in denying defendant’s request to

introduce evidence of the violent character of Craig, Edward and Berry.

¶ 76 C. Excessive Sentence

¶ 77 Defendant next contends that his 65-year sentence was excessive where the trial court

improperly dismissed substantial mitigating evidence, improperly relied on its own personal

experiences in sentencing him and misstated the evidence from trial.

¶ 78 At the outset, we note that defendant did not object to any of the issues he now raises on

appeal during his sentencing hearing, and the record on appeal only contains the cover sheet for

his motion to reconsider his sentence. As such, relying on People v. Hillier, 237 Ill. 2d 539 (2010),

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the State contends that defendant forfeited this issue by failing to contemporaneously object or

include it in his postsentencing motion. “It is well settled that, to preserve a claim of sentencing

error, both a contemporaneous objection and a written postsentencing motion raising the issue are

required.” Id. at 544. Defendant, meanwhile, cites to the trial court’s hearing on his motion to

reconsider sentence and argues that his excessive sentencing claim of error is fully preserved.

¶ 79 Defendant’s lack of an objection did not result in a forfeiture of his excessive sentencing

claim on appeal because, despite his lack of an objection, it is clear that he raised such a claim in

his motion to reduce sentence based on the trial court’s comments in denying the motion. See

People v. Williams, 2019 IL App (1st) 173131, ¶ 18. Furthermore, although the court’s comments

indicated that defendant raised an excessive sentencing claim in light of his “background” and “the

nature and his participation in the offense,” his failure to raise the exact same arguments he now

raises on appeal does not result in a forfeiture of his excessive sentencing claim. See People v.

Valadovinos, 2014 IL App (1st) 130076, ¶ 51 (“Although [the postsentencing] motion did not

explicitly raise the issue of improper aggravating evidence, the motion did touch on the issue of

an unfair and excessive sentence, and therefore we find that the issue has been preserved for

appeal.”). Consequently, defendant preserved his excessive sentencing claim.

¶ 80 The Illinois Constitution requires trial courts to impose sentences according to the

seriousness of the offense and with the objective of restoring the defendant to useful citizenship

(Ill. Const. 1970, art. I, § 11), or, in other words, to consider the defendant’s rehabilitative potential.

People v. Knox, 2014 IL App (1st) 120349, ¶ 46. But the most important factor the court must

consider when imposing a sentence is the serious of the offense. People v. Williams, 2017 IL App

(1st) 150795, ¶ 44. In Illinois, the legislature prescribes the permissible sentencing ranges for

criminal offenses, and the trial courts impose a sentence within the legislatively prescribed range.

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People v. Charleston, 2018 IL App (1st) 161323, ¶ 16. In determining the proper sentence, trial

courts are given broad discretionary powers (People v. Alexander, 239 Ill. 2d 205, 212 (2010)),

and a sentence will not be reversed absent an abuse of that discretion. People v. Geiger, 2012 IL

113181, ¶ 27.

¶ 81 Reviewing courts provide such deference to the trial court because it had “the opportunity

to weigh such factors as the defendant’s credibility, demeanor, general moral character, mentality,

social environment, habits, and age.” People v. Stacey, 193 Ill. 2d 203, 209 (2000). “We presume

a trial court evaluates the relevant factors in mitigation before it, and that presumption cannot be

overcome without affirmative evidence of the sentencing court’s failure to do so.” Williams, 2017

IL App (1st) 150795, ¶ 44. “Nothing requires the trial court set forth every reason or specify the

weight it gave to each factor when determining the sentence.” Id. When a sentence falls within the

statutory range, it is presumed to be proper (Knox, 2014 IL App (1st) 120349, ¶ 46), and may only

be “deemed excessive and the result of an abuse of discretion” where it is “greatly at variance with

the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.”

Stacey, 193 Ill. 2d at 210.

¶ 82 In this case, the jury found defendant guilty of first-degree murder and in doing so also

found that, during the commission of the offense, he personally discharged a firearm that

proximately caused death. As such, under the facts of this case, the sentencing range for

defendant’s first-degree murder itself was between 20 and 60 years’ imprisonment. 730 ILCS 5/5-

4.5-20(a) (West 2010). Because the jury made the additional finding that defendant personally

discharged a firearm that proximately caused death, the court was required to add a 25-year

enhancement to his sentence. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2010). This, in turn, provided

the court a sentencing range of between 45 and 85 years’ imprisonment. The court sentenced

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defendant to 65 years’ imprisonment, right in the middle of the applicable sentencing, meaning

that the sentence was presumptively proper. Knox, 2014 IL App (1st) 120349, ¶ 46. In addition,

when sentencing defendant, the court’s comments clearly indicate that it took into consideration,

among various other factors, the seriousness of the offense and defendant’s rehabilitative potential

and balanced these two critical factors. See Ill. Const. 1970, art. I, § 11.

¶ 83 Despite this presumptively proper sentence, defendant claims that the trial court improperly

rejected significant mitigating evidence, including the letters of support from his family and

friends, the evidence of his various affirmative defenses, his apology to Thompson’s family, his

learning disability and the evidence of his attempts to improve himself in jail. Nothing in our

review of the record indicates that the court flatly refused to consider this evidence. In fact, the

opposite is true. The court clearly read and listened to defense counsel’s recitation of the character

letters because, in discussing defendant’s sentence, it made multiple references to the letters, but

ultimately found certain assertions in those letters contradicted by other evidence. The court was

entitled to give defendant’s character letters any amount of weight it wanted, and we will not re-

weigh the value of those letters on appeal. See Alexander, 239 Ill. 2d at 214-15.

¶ 84 Additionally, although defendant claims there was evidence of various affirmative

defenses, the jury clearly rejected any notion that defendant acted to defend himself when it found

him guilty of first-degree murder. The court does not have to give credence to defendant’s claims

that he acted in self-defense, especially when the jury completely rejected those defenses.

Regarding defendant’s claim that the court rejected his apology to Thompson’s family, the court

merely noted that, during the sentencing hearing, was the first time defendant ever took

responsibility for his actions. The court acknowledged defendant’s apology and gave that

statement whatever weight it believed it deserved. Again, we will not re-weigh mitigating evidence

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on appeal. See Alexander, 239 Ill. 2d at 214-15. The same is true with defendant’s learning

disability. The court acknowledged it, but merely commented that many people with learning

disabilities do not end up committing first-degree murder. Although defendant presented

mitigating evidence, including some evidence that he was also trying to better himself in jail, the

court was not required to give greater weight to this evidence and other mitigating factors than to

the seriousness of the offense. People v. Harmon, 2015 IL App (1st) 122345, ¶ 123.

¶ 85 Defendant further argues that the trial court improperly relied on its own personal

experiences when imposing his sentence, in particular when discussing the photographs of

Thompson’s gunshot wound. It is improper for the trial court to rely upon matters outside the

record, namely, its own personal career experience, when sentencing a defendant. People v.

Patterson, 2017 IL App (3d) 150062, ¶ 34. But we must presume that the court considered only

competent and relevant evidence in determining a sentence. People v. Ashford, 168 Ill. 2d 494,

508 (1995). Although the court undoubtedly discussed its military background and experience as

a civil litigator when referencing Thompson’s gunshot wound, there is nothing in the record to

support defendant’s argument that the court’s comments on its extrajudicial experience influenced

defendant’s sentence. See id.; People v. Whitney, 297 Ill. App. 3d 965, 971 (1998).

¶ 86 The present case is unlike People v. Dameron, 196 Ill. 2d 156 (2001) and People v. Henry,

254 Ill. App. 3d 899 (1993), which defendant relies upon for support. In Dameron, 196 Ill. 2d at

162, 172, 177-78, the trial court sentenced the defendant to death, and in doing so, relied

extensively on two outside sources: a social science book and a transcript of sentencing comments

made by the trial judge’s father in a 1966 murder trial. Our supreme court reversed the defendant’s

death sentence and remanded for resentencing, holding that the trial court improperly “sought

alternative avenues of information in his effort to reach the correct result.” Id. at 179. In Henry,

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254 Ill. App. 3d at 904, after the defendant was convicted of armed robbery and aggravated battery,

the trial court stated: “ ‘This is really a disgusting crime. And that’s why you are given this amount

of time.’ ” The appellate court remanded for resentencing and found that, “[b]ased upon the clarity

of the trial court’s statement, we cannot say that the court did not rely upon its own opinion of the

crime when it sentenced defendant.” Id. at 905. Unlike either of these two cases, there is no

evidence in the record that the trial court relied on its extrajudicial experience when sentencing

defendant. Consequently, Dameron and Henry are inapposite.

¶ 87 Lastly, defendant posits that the trial court misstated facts during his sentencing hearing,

namely when the court stated that defendant had no defense that the shooting was an accident or

done in self-defense, but rather he was being a “ ‘tough guy.’ ” This argument is simply a rehashing

of his prior argument where he claimed the court rejected the mitigating evidence of self-defense.

The court does not have to give credence to defendant’s claims that he acted in self-defense or the

shooting was an accident, especially when the jury completely rejected those defenses. As such,

the court did not misstate facts.

¶ 88 In sum, the trial court sentenced defendant to a presumptively proper sentence within the

legislatively prescribed sentencing range while focusing on the seriousness of the offense and

defendant’s rehabilitative potential, among other factors. And in doing so, the court did not

improperly reject substantial mitigating evidence, did not improperly rely on its own personal

experiences in sentencing defendant and did not misstate evidence from trial. Consequently,

defendant’s 65-year sentence for first-degree murder was not excessive.

¶ 89 D. Mittimus

¶ 90 Defendant lastly contends that his mittimus must be corrected to reflect that he was

convicted and sentenced on only one count of first-degree murder and to reflect the statutorily

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authorized term of three years of mandatory supervised release. Defendant’s mittimus shows first-

degree murder convictions on five counts (Counts I through V) and concurrent sentences on each

of those counts for 65 years’ imprisonment. The mittimus further orders defendant to serve three

years to life of mandatory supervised release. Defendant did not raise this sentencing issue in his

motion to reconsider the sentence, but we may review the issue as second-prong plain error. See

People v. Coats, 2018 IL 121926, ¶ 10.

¶ 91 First, with regard to defendant’s five convictions for first-degree murder, when a defendant

has murdered one victim, there can only be one conviction for such an act under the one-act, one-

crime rule. See People v. Pitsonbarger, 142 Ill. 2d 353, 377 (1990) (“A defendant cannot be

convicted of more than one murder arising out of the same physical act.”). When a defendant has

been convicted of multiple murders arising out of the same act, we must vacate the less culpable

convictions. Id. In the present case, both defendant and the State agree that only Count V should

stand, as that is the offense with the most culpable mental state given it alleged that defendant

intentionally or knowingly shot and killed Thompson while armed with a firearm, and during the

commission of the offense, he personally discharged a firearm that proximately caused death. We

may amend the mittimus without remanding the matter to the trial court. People v. Profit, 2021 IL

App (1st) 170744, ¶ 48; see also Ill. S. Ct. R. 615 (b)(1). Therefore, we vacate defendant’s

convictions on Counts I through IV and amend the mittimus to reflect only one conviction for first-

degree murder on Count V.

¶ 92 Second, with regard to defendant’s three years to life of mandatory supervised release, both

parties also agree that defendant could only receive three years of mandatory supervised release

for his offense under the sentencing statute for first-degree murder. See 730 ILCS 5/5-4.5-20(l)

(West 2010). As with amending the mittimus to reflect only one conviction for first-degree murder,

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“we may amend the mittimus to reflect the proper MSR term” without remanding the matter to the

trial court. People v. Foster, 2021 IL App (2d) 190116, ¶ 18; see also Ill. S. Ct. R. 615 (b)(1).

Therefore, we amend defendant’s mittimus to reflect a term of three years’ mandatory supervised

release.

¶ 93 III. CONCLUSION

¶ 94 For the foregoing reasons, we affirm defendant’s conviction and sentence, but amend his

mittimus.

¶ 95 Affirmed as modified.

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