People v. Jasso

2024 IL App (1st) 221686-U

• Court: Appellate Court of Illinois
• Decided: February 16, 2024
• Docket: 1-22-1686
• Status: Unpublished

Opinion

2024 IL App (1st) 221686-U

FIFTH DIVISION February 16, 2024

No. 1-22-1686

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. 21 CR 338 ) GERARDO JASSO, ) Honorable ) Shelley Sutker-Dermer, Defendant-Appellant. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court. Presiding Justice Mitchell and Justice Lyle concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s convictions for aggravated discharge of a firearm, where the trial evidence showed defendant discharged a firearm in the direction of a police officer. We vacate the sentences on three of those convictions as they violate the one-act, one-crime rule.

¶2 Following a bench trial, defendant Gerardo Jasso was found guilty of four counts of

aggravated discharge of a firearm and one count of unlawful use of a weapon by a felon (UUWF).

He received concurrent prison sentences of 14 years for each count of aggravated discharge of a

firearm and 5 years for the single count of UUWF. On appeal, he argues both that the State failed

to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm and that his No. 1-22-1686

four aggravated discharge of a firearm convictions violate the one-act, one-crime rule. The State

concedes the one-act, one-crime issue. We affirm in part, vacate in part, and remand for correction

of the mittimus.

¶3 I. BACKGROUND

¶4 Mr. Jasso was charged by indictment with 16 counts stemming from a November 28, 2020,

shooting. The State proceeded to trial on six counts of attempted first degree murder, one count of

UUWF, and, relevant here, four counts of aggravated discharge of a firearm. Three of the latter

counts alleged Mr. Jasso committed aggravated discharge of a firearm under section 24-1.2(a)(3)

of the Illinois Criminal Code of 2012 (Code) (720 ILCS 5/24-1.2(a)(3) (West 2020)), when he

“knowingly discharged a firearm in the direction of a person he knew to be a peace officer, to wit:

Peter Niznik,” while Officer Niznik was engaged in the execution of his official duties (count IX),

to prevent Officer Niznik from performing those duties (count X), and in retaliation for Officer

Niznik performing his official duties (count XI). Count XII alleged Mr. Jasso committed

aggravated discharge under section 24-1.2(a)(2) of the Code (720 ILCS 5/24-1.2(a)(2) (West

2020)), when he “knowingly discharged a firearm in the direction of another person, to wit: Peter

Niznik.” The State nol-prossed the remaining counts.

¶5 At trial, Chicago police officer Niznik testified that at about 3:15 p.m. on November 28,

2020, he and his partner, Officer Daniel Vo, were wearing uniforms in an unmarked vehicle

stopped at an intersection. Officer Niznik saw Mr. Jasso walking with a green can in his hand.

When Officer Vo called Mr. Jasso to the police vehicle, Mr. Jasso looked at the officers and kept

walking. Officer Niznik exited the vehicle and Mr. Jasso fled.

¶6 Officer Niznik chased Mr. Jasso down an alley. Officer Niznik observed a firearm and an

extended magazine in Mr. Jasso’s right hand as he ran. Officer Niznik repeatedly told Mr. Jasso to

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drop the firearm, but Mr. Jasso did not. Mr. Jasso ran to the left side of the alley, veered to the

right, and “all in one motion *** slowed down almost to a complete stop.” Mr. Jasso turned his

body to the right, “pointed the firearm at [Officer Niznik] and shot twice at [him]” from several

garage lengths away. Officer Niznik immediately fired back twice and hid behind a garbage can

because he “was afraid [Mr. Jasso] was going to shoot [him] again.” Mr. Jasso continued running

down the alley. Officers Niznik and Vo found Mr. Jasso lying on the ground near a basement door

in a gangway and placed him into custody.

¶7 The State published video footage of Officer Niznik’s body worn camera, the foundation

of which was stipulated to, and entered the video into evidence. We have viewed the video. It

depicts the chase that Officer Niznik described in his testimony and shows that the chase took

place in daylight. The video shakes heavily while Officer Niznik runs, making it difficult to view

details in the video unless it is slowed down significantly. Mr. Jasso is wearing a black hooded

sweatshirt and a black baseball cap in the video.

¶8 At the point where Officer Niznik follows Mr. Jasso down the alley, Officer Niznik is heard

repeatedly yelling at Mr. Jasso to drop his firearm and eventually raises a firearm up toward Mr.

Jasso. Mr. Jasso veers sharply to the left, then to the right. Mr. Jasso twists to the right and looks

over his right shoulder, so that the length of the brim of his cap can be seen, but his back is still

facing Officer Niznik. As two gunshots are heard, Mr. Jasso’s right arm appears to swing back in

Officer Niznik’s direction. At this point, Mr. Jasso is not completely visible, as his black sweatshirt

blends in with the shadows and dark objects in front of him. Officer Niznik then holds his own

firearm with two hands, discharges two shots, and hides behind a garbage can. Mr. Jasso continues

running until he is out of sight of the camera.

¶9 The State also published and entered into evidence video footage captured by a surveillance

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camera on a garage facing the alley in which the shooting occurred. The video does not contain

audio. In the video, we observe Mr. Jasso running from Officer Niznik with a firearm in his right

hand and veering to the left. As he then veers to the right, he angles his right arm over his left arm

and points the firearm in Officer Niznik’s direction. Mr. Jasso runs out of the frame. Based on our

viewing of the footage from Officer Niznik’s body worn camera, it appears that Mr. Jasso did not

discharge the firearm while he was within the surveillance camera’s line of sight.

¶ 10 On cross-examination, Officer Niznik confirmed that Mr. Jasso almost completely stopped

when he discharged the firearm and then started running again “[a]t some point.” Officer Niznik

could not recall telling Detective Roxana Hopps that Mr. Jasso almost came to a complete stop

and turned around to shoot at him. He also did not recall telling Detective Hopps that Mr. Jasso

was still running and turned his head and body to the right when he shot at Officer Niznik. When

Mr. Jasso “shot at [him],” Officer Niznik was not hit and did not hear any bullets passing him or

hitting anything near him.

¶ 11 The State entered a stipulation that samples from the gun shot residue (GSR) kit

administered on Mr. Jasso showed his right hand contained GSR particles indicating he discharged

a firearm, contacted a primer GSR-related item, or had his right hand in the environment of a

discharged firearm.

¶ 12 Mr. Jasso called Detective Hopps, who testified that on November 28, 2020, she

interviewed Officer Niznik about the incident. Officer Niznik never told Detective Hopps that Mr.

Jasso “slowed down to almost a complete stop” when he discharged the firearm. Rather, Officer

Niznik reported that Mr. Jasso was running “the whole time” and turned his body in Officer

Niznik’s direction to fire at him.

¶ 13 Mr. Jasso testified that on November 28, 2020, at about 3 p.m., he was at the intersection

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of Rosemont and Artesian Avenues walking home with an alcoholic beverage in his hand. He saw

police officers approaching and heard them asking him something. Mr. Jasso kept walking and

then fled because he had a firearm. He fled into an alley and pulled the firearm out of his waistband

so he could run faster. Eventually, he discharged the firearm twice, at an angle in front of him and

to the right, to “scare the police officer away from [him]” and “get away.”

¶ 14 Mr. Jasso denied that he intended to shoot or hurt the officer. He aimed toward the garages

to his right and believed that he shot a garage. He also denied that he stopped running, explaining

that he turned his body to face the officer “[j]ust a little” to look back and see if he was still being

chased. Viewing Officer Niznik’s body worn camera footage, Mr. Jasso testified that his arm could

be seen angled forward to his right toward a garage when he discharged the firearm both times. He

denied that at any point he aimed the firearm at the officer and pulled the trigger.

¶ 15 On cross-examination, Mr. Jasso confirmed that he was under the influence of alcohol

when the incident occurred. He confirmed that he took his firearm out of his waistband to run

faster but kept the firearm on him. The State asked Mr. Jasso if he took the firearm in his hand and

swung his arm behind him, and Mr. Jasso replied, “I was running.” Mr. Jasso further stated, “I

swing my arm in an angle, yeah.” He confirmed that he also turned his head to look over his right

shoulder and saw the officer still behind him but denied that he did so when he discharged the

firearm. Rather, he “still turned forward,” “pointed to [his] right once he knew they were behind

[him],” and “shot to get them off [him].” Mr. Jasso confirmed he discharged his firearm a second

time knowing the officer was still behind him in the alley.

¶ 16 The trial court found Mr. Jasso guilty of four counts of aggravated discharge of a firearm

and one count of UUWF, and acquitted Mr. Jasso of attempted first degree murder. The court

indicated that it had had the opportunity to view the videos, observe the witnesses in court, and

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determine the witnesses’ credibility from their testimony. The court found the State failed to

establish the specific intent to kill necessary to sustain a conviction for attempted first degree

murder. However, the court found that Mr. Jasso intended to discharge the firearm, pointed it in

Officer Niznik’s direction, and discharged it. It rejected Mr. Jasso’s request for a finding of

reckless discharge instead. The court said, “There is no question in this court’s mind that the State

established the elements of aggravated discharge in taking the entire case in its totality.”

¶ 17 Mr. Jasso filed a motion to reconsider, challenging the sufficiency of the evidence and

arguing that the body worn camera footage showed that he was not pointing the firearm at the

officer at the time of the shooting. During the hearing on Mr. Jasso’s motion, the court viewed the

video footage from Officer Niznik’s body worn camera “at slow motion using the rewind over and

over and over again.” The court denied Mr. Jasso’s motion, explaining that it did not agree with

defense counsel’s assessment of the footage.

¶ 18 The court sentenced Mr. Jasso to concurrent prison sentences of 14 years each for the four

counts of aggravated discharge of a firearm (counts IX, X, XI, and XII) and 5 years for the count

of UUWF (count XV).

¶ 19 II. JURISDICTION

¶ 20 Mr. Jasso was sentenced on October 28, 2022, and he timely filed his notice of appeal on

November 7, 2022. We have jurisdiction over this appeal under article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff. Feb 6, 2013)

and 606 (eff. July 1, 2017), governing appeals from final judgments in criminal cases.

¶ 21 III. ANALYSIS

¶ 22 On appeal, Mr. Jasso argues that the State failed to prove him guilty beyond a reasonable

doubt of aggravated discharge of a firearm. He contends Officer Niznik’s testimony was directly

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contradicted by the video evidence from his body worn camera, which showed Mr. Jasso did not

aim and discharge the firearm in Officer Niznik’s direction. Mr. Jasso argues that we should either

reverse his conviction or reduce it to the lesser-included offense of reckless discharge of a firearm.

¶ 23 When reviewing the sufficiency of the evidence at trial, our inquiry is “ ‘whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis in

original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)). We will not retry the defendant when reviewing a challenge to the sufficiency of the

evidence. People v. Nere, 2018 IL 122566, ¶ 69. “[I]t is the responsibility of the trier of fact to

resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the

facts,” and we will not substitute our judgment for that of the trier of fact on questions involving

the weight of the evidence or the credibility of witnesses. People v. Gray, 2017 IL 120958, ¶ 35.

However, we give less deference to a trial court’s determinations of fact when they are based on

evidence other than live witness testimony, as the trial court does not occupy a superior position

in evaluating said evidence. People v. Shaw, 2015 IL App (1st) 123157, ¶ 29.

¶ 24 The trier of fact need not “disregard inferences that flow normally from the evidence before

it,” or “search out all possible explanations consistent with innocence and raise them to a level of

reasonable doubt.” People v. Jackson, 2020 IL 124112, ¶ 70. “The testimony of a single witness

is sufficient to convict if the testimony is positive and credible, even where it is contradicted by

the defendant.” Gray, 2017 IL 120958, ¶ 36. We “must allow all reasonable inferences from the

record in favor of the prosecution” (People v. Givens, 237 Ill. 2d 311, 334 (2010)), and will not

reverse a conviction unless the evidence is “so unreasonable, improbable, or unsatisfactory that it

justifies a reasonable doubt of the Mr. Jasso’s guilt” (People v. Bradford, 2016 IL 118674, ¶ 12).

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¶ 25 Under section 24-1.2(a)(3) of the Code (720 ILCS 5/24-1.2(a)(3) (West 2020)), a person

commits aggravated discharge of a firearm when he or she knowingly or intentionally discharges

a firearm in the direction of a person he or she knows to be a peace officer while the officer is

engaged in the execution of any of his or her official duties, to prevent the officer from performing

his or her official duties, or in retaliation for the officer performing his or her official duties. An

essential element of the offense is “the offender’s awareness of the presence of an individual in

the direction in which he fires a weapon [citation]; that is, this crime makes it unlawful to

intentionally fire a weapon knowing that weapon is being fired at or in the direction of someone

else.” People v. Kasp, 352 Ill. App. 3d 180, 187-88 (2004).

¶ 26 Mr. Jasso does not dispute that he discharged a firearm while running from Officer Niznik

down an alley, or that he knew Officer Niznik was a peace officer. Rather, he contends the evidence

is insufficient to show that he discharged the firearm in Officer Niznik’s direction.

¶ 27 In this case, the evidence was sufficient for a rational trier of fact to find Mr. Jasso guilty

of aggravated discharge of a firearm beyond a reasonable doubt. Officer Niznik testified that Mr.

Jasso held a firearm as Officer Niznik chased him down an alley. Mr. Jasso ran down the left side

of the alley, veered to the right, “slowed down almost to a complete stop,” turned his body to the

right, and then discharged the firearm in Officer Niznik’s direction twice. Officer Niznik returned

fire and hid behind a garbage can because he feared Mr. Jasso “was going to shoot [him] again.”

Officer Niznik’s testimony, standing alone, was sufficient to establish that Mr. Jasso discharged a

firearm in his direction. See Gray, 2017 IL 120958, ¶ 36 (“The testimony of a single witness is

sufficient to convict if the testimony is positive and credible, even where it is contradicted by the

defendant.”). The court explicitly stated that it determined the credibility of the witnesses from

their testimony. We will not substitute our judgment for that of the trial court on witness credibility

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and the weight of the evidence. Bradford, 2016 IL 118674, ¶ 12.

¶ 28 Although corroborating evidence is not required to support a conviction (see People v.

Little, 322 Ill. App. 3d 607, 618 (2001) (a conviction can be based upon the testimony of a single

credible witness)), the video evidence captured by Officer Niznik’s body worn camera

corroborates some details of his testimony regarding the chase through the alley. The video

demonstrates, consistent with the officer’s testimony, that Mr. Jasso veered to the right side of the

alley, then two shots were fired, and Officer Niznik returned fire.

¶ 29 On the crucial issue of whether Mr. Jasso pointed his gun towards Officer Niznik, the body

worn camera video footage does not plainly contradict Officer Niznik’s testimony. Officer

Niznik’s camera shakes dramatically throughout the video while he is running, Mr. Jasso is several

garage lengths ahead of Officer Niznik when he discharges the firearm, and Mr. Jasso is wearing

black clothing that blends with the environment around him. Contrary to Mr. Jasso’s assertion, the

footage does not definitively show that Mr. Jasso discharged the firearm in front of him and to the

right toward the garages, in a direction away from Officer Niznik. Rather, from what we can

discern in the video, Mr. Jasso appears to, in a fluid motion, look over his right shoulder and swing

his right arm back, at about the same time that he discharges the firearm.

¶ 30 Thus, while the video does not explicitly show that Mr. Jasso pointed a firearm in Officer

Niznik’s direction when he discharged the firearm, nor does it rebut the officer’s testimony that

Mr. Jasso did so. See People v. Towner, 2022 IL App (1st) 192018-U, ¶¶ 30-32 (video evidence

did not contradict a police officer’s testimony that the defendant pointed a BB gun at him where

the video was ambiguous and “did not disprove that [the] defendant did so”); People v. Magnuson,

2019 IL App (2d) 160551, ¶ 48 (while the video evidence “somewhat impeach[ed]” the testifying

officers, it was not clear enough to either contradict or corroborate the defendant’s testimony, and

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the trier of fact could have reasonably resolved any apparent conflicts in the evidence against the

defendant). Under these circumstances, we cannot say that the trial court was required to reject

Officer Niznik’s testimony based on the video evidence,

¶ 31 Mr. Jasso also argues that, because the trial court acquitted him of attempted first degree

murder, the court implicitly rejected Officer Niznik’s testimony that Mr. Jasso discharged the

firearm in his direction. We disagree.

¶ 32 The offense of attempted murder is a specific-intent crime in which the State must show a

defendant committed an act with the specific intent to kill the victim. People v. Edmondson, 2018

IL App (1st) 151381, ¶ 65. The offense of aggravated discharge, however, only requires a general

showing that the defendant intentionally fired a weapon knowing it was being fired at or in the

direction of someone else. Kasp, 352 Ill. App. 3d at 187-88. It is true that the mere act of a

defendant discharging a firearm at a victim can support a finding that the defendant did so with

the intent to kill. People v. Haynes, 2023 IL App (1st) 220296, ¶ 25. However, the trial court here

was not foreclosed from finding Mr. Jasso intentionally discharged a firearm in Officer Niznik’s

direction simply because it found Mr. Jasso did not do so with the specific intent to kill Officer

Niznik. Indeed, Mr. Jasso testified that he discharged the firearm to “scare” Officer Niznik away.

¶ 33 In sum, the evidence can support the trial court’s finding that Mr. Jasso was guilty beyond

a reasonable doubt of aggravated discharge of a firearm. Viewing the evidence and reasonable

inferences therefrom in the light most favorable to the State, we cannot find that the trial evidence

was “so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the

defendant’s guilt.” Bradford, 2016 IL 118674, ¶ 12. Therefore, we can neither reverse this

conviction nor reduce it to the lesser-included offense of reckless discharge of a firearm.

¶ 34 Mr. Jasso also argues that, because the charging instrument did not indicate the State

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intended to treat his conduct as four separate acts of aggravated discharge of a firearm, this court

should vacate three of his aggravated discharge convictions as barred by the one-act, one-crime

rule. Mr. Jasso acknowledges that this claim is forfeited because he failed to raise it below but

argues that it is reversible error under the second prong of the plain error doctrine. The State

concedes both these issues.

¶ 35 The parties are correct that one-act, one-crime violations fall within the second prong of

the plain error doctrine. People v. Smith, 2019 IL 123901, ¶ 14. We also agree that, as charged,

Mr. Jasso’s four convictions for aggravated discharge of a firearm violate the one-act, one-crime

rule, as the shots underlying the charges were not charged as separate physical acts.

¶ 36 Under the one-act, one-crime rule, “a criminal defendant may not be convicted of multiple

offenses when those offenses are all based on precisely the same physical act.” Coats, 2018 IL

121926, ¶ 11. We review de novo whether a violation of the one-act, one-crime rule occurred.

People v. Coats, 2018 IL 121926, ¶ 12.

¶ 37 The four counts for aggravated discharge of a firearm charged that Mr. Jasso “discharged

a firearm in the direction of” Officer Niznik but did not allege that Mr. Jasso fired more than once

at Officer Niznik. Because the indictment did not indicate that the State intended to treat Mr.

Jasso’s multiple gunshots as separate offenses, he could not be convicted of multiple counts of

aggravated discharge of a firearm premised on the same discharge. See People v. Crespo, 203 Ill.

2d 335, 345 (2001) (in order for multiple convictions to be sustained, the indictment must indicate

that the State intends to treat the defendant’s conduct as multiple acts); People v. Boyd, 307 Ill.

App. 3d 991, 999 (1999) (the defendant could not receive multiple convictions for discharging a

firearm at the victim, where the indictment did not allege that the defendant fired more than once).

Accordingly, we agree with the parties that Mr. Jasso’s four convictions for aggravated discharge

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of a firearm violate the one-act, one-crime rule and only one conviction may stand.

¶ 38 Under the one-act, one-crime doctrine, “sentence should be imposed on the more serious

offense.” People v. Artis, 232 Ill. 2d 156, 170 (2009). Thus, the proper remedy for a violation of

the one-act, one-crime rule is to vacate the less serious offense. Id.; In re Samantha V., 234 Ill. 2d

359, 379 (2009). To determine which offense is the more serious, we compare the relative

punishments prescribed by the legislature for each offense. Artis, 232 Ill. 2d at 170.

¶ 39 Aggravated discharge of a firearm in the direction of a peace officer (720 ILCS 5/24-

1.2(a)(3) (West 2020)), as charged in counts IX, X, and XI, is a Class X felony, while aggravated

discharge in the direction of another person (720 ILCS 5/24-1.2(a)(2) (West 2020)), as charged in

count XII, is a Class 1 felony (720 ILCS 5/24-1.2(b) (West 2020)). Accordingly, we vacate the

sentence on aggravated discharge count XII as that Class 1 felony is clearly a less serious offense

than the three Class X felonies charged in counts IX, X, and XI.

¶ 40 As to counts IX, X, and XI, each involves the same mental state and identical punishments.

And as the 14-year sentences were ordered to run concurrently, vacating two of the convictions

will not affect Mr. Jasso’s total sentence. We thus grant Mr. Jasso’s request that judgment be

imposed only on count IX for aggravated discharge of a firearm and that the convictions on counts

X and XI be vacated.

¶ 41 IV. CONCLUSION

¶ 42 For the foregoing reasons, we vacate the convictions for aggravated discharge of a firearm

on counts X, XI, and XII, and order the mittimus be corrected to reflect only one conviction for

aggravated discharge of a firearm on count IX. We otherwise affirm the judgment of the trial court.

¶ 43 Affirmed in part and vacated in part; mittimus corrected.

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