People v. Kindred

2021 IL App (4th) 190475-U

• Court: Appellate Court of Illinois
• Decided: July 13, 2021
• Docket: 4-19-0475
• Status: Unpublished

Opinion

NOTICE FILED This Order was filed under 2021 IL App (4th) 190475-U July 13, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-19-0475 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Vermilion County THOMAS KINDRED, ) No. 18CF514 Defendant-Appellant. ) ) Honorable ) Nancy S. Fahey, ) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Holder White concurred in the judgment.

ORDER

¶1 Held: (1) Assuming, arguendo, the trial court erred by (a) not allowing defendant to present evidence regarding his passenger’s alleged threat and (b) not providing the jury with a “necessity” defense instruction, the errors were harmless beyond a reasonable doubt.

(2) The record does not establish defendant could not see the video evidence at his trial.

(3) Defendant failed to overcome the presumption his trial counsel made a reasonable strategic decision not to move to sever the trials on the charges in this case.

(4) The trial court did not err in considering the threat of harm to the community based on the circumstances in this case.

¶2 In May 2019, a jury found defendant guilty of unlawful possession of a weapon by

a felon, two counts of aggravated fleeing, and driving on a revoked license. In July 2019, the trial

court sentenced defendant to concurrent prison terms of seven years for unlawful possession of a weapon by a felon and two years on each of the aggravated fleeing convictions. Defendant appeals,

making the following arguments: (1) the trial court erroneously barred testimony which supported

defendant’s necessity and compulsion defenses and refused to instruct the jury as to defendant’s

necessity defense; (2) the court denied defendant his constitutional right to be present at all critical

stages of his trial by preventing him from being able to see a video played for the jury;

(3) defendant’s trial counsel was constitutionally ineffective because he failed to file a motion to

sever defendant’s trial on the unlawful possession of a weapon by a felon charge from the

aggravated fleeing charges; (4) the cumulative effect of the preceding issues deprived defendant

of a fair trial; (5) the court denied defendant a fair sentencing hearing when it improperly

considered an aggravating factor inherent in the offense of unlawful possession of a weapon by a

felon; and (6) the court did not properly admonish the potential jurors pursuant to Illinois Supreme

Court Rule 431(b) (eff. July 1, 2012). We affirm.

¶3 I. BACKGROUND

¶4 On August 22, 2018, the State charged defendant by information with one count of

unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 2018)) and two counts of

aggravated fleeing or attempting to elude a police officer (625 ILCS 5/11-204.1(a)(1), (4) (West

2018)). A grand jury later indicted defendant on the same charges. On January 18, 2019, while

maintaining the State could not prove the charges against him beyond a reasonable doubt,

defendant indicated he might assert affirmative defenses, including compulsion (720 ILCS 5/7-11

(West 2018)) and necessity (720 ILCS 5/7-13 (West 2018)).

¶5 Defendant’s jury trial began on May 1, 2019. Outside the presence of the jury, the

trial court indicated defendant and the State had agreed defendant would stipulate he was a prior

convicted felon without further elaboration. The State agreed not to disclose to the jury the number

-2- or nature of defendant’s prior convictions. The court accepted the stipulation. After the parties

made their opening statements, the State informed the jury defendant previously had been

convicted of a felony offense.

¶6 Officer Kody Kidwell of the Danville police department testified he was working

on August 21, 2018, as a regular patrol officer in a marked police vehicle. Another police officer,

Officer Frahm, was riding in the patrol car with Kidwell. Around 2 a.m., Kidwell observed a

vehicle without an operating rear registration light and initiated a traffic stop. After the suspect

vehicle stopped, Officers Kidwell and Frahm exited the patrol car and started to approach the

suspect vehicle. The suspect vehicle then fled the traffic stop. The officers retreated to the patrol

vehicle and pursued the suspect vehicle for a number of miles. Ultimately, the suspect vehicle

stopped, and Kidwell identified defendant as the driver. Jemario Webb, who was no longer living

at the time of trial, was in the suspect vehicle’s passenger seat.

¶7 The State introduced video footage from the patrol vehicle of the pursuit. Before

the video was published to the jury, defense counsel asked the trial court, “Judge, can I move so

that I can see the videos with my client?” The trial court responded, “No. You may move though.”

¶8 Kidwell testified defendant committed multiple traffic infractions during the chase

and almost hit a semi-trailer. Other officers tried to disable the suspect vehicle using “stop sticks,”

which defendant was able to avoid. At one point during the chase, Kidwell was driving over 80

miles per hour to keep pace with defendant. Defendant was not able to completely avoid a second

set of “stop sticks” and eventually stopped after making several turns. When the vehicle stopped,

defendant exited the car and ran away from the police officers. Webb then exited the vehicle on

the passenger side. The officers initially did not know Webb was in the vehicle. The police

ordered Webb to the ground, and he complied and was taken into custody. Kidwell noted Webb

-3- was calm. After the vehicle was searched, the officers released Webb. During the search, the

police found a loaded and operational firearm under the driver’s seat. Defendant was soon

apprehended and brought back to the scene. Kidwell issued him a number of citations, including

a citation for driving on a revoked license. The parties stipulated no DNA or fingerprints suitable

for comparison were recovered from the firearm or the bullets. Kidwell was the State’s only

witness.

¶9 Defendant testified on his own behalf. According to his testimony, he immediately

pulled over when he saw the police lights behind him. Jermario Webb, who defendant had known

for about four years, was in the vehicle with him. After the initial stop, defendant looked to his

right and saw Webb had a gun pointed at him. Defense counsel asked defendant what Webb then

said to him. The State made a hearsay objection, which the trial court sustained. Defense counsel

told the court Webb’s statement was being introduced for the effect it had on defendant, not for

the truth of the matter asserted. According to defense counsel, defendant needed to introduce

Webb’s statement for his necessity and compulsion defenses. The court indicated the statement

was still hearsay but allowed defendant to testify how he reacted to Webb. Defense counsel asked

for a sidebar to discuss the situation, but the court denied the request. Defense counsel then asked

defendant how he felt after he heard what Webb said. Defendant said he was afraid for his life

and the police officers’ lives because Webb was not putting the firearm away as the officers

approached. Defendant testified he thought Webb was going to shoot him and/or a police officer.

According to defendant, he fled the scene because of what Webb said while he pointed the firearm

at defendant. Defendant claimed he was scared and did not know what Webb would do.

¶ 10 Defense counsel later asked the trial court if defendant could testify as to what

Webb said to him. Counsel again argued the statement was not being offered for the truth of the

-4- matter asserted but only to show the effect the threat had on defendant. According to defense

counsel, Webb’s statement was legally significant, and his defense was negatively impacted by the

court’s hearsay ruling because the jury would not hear what Webb said or understand why

defendant was afraid for himself and the police officers. The court responded defendant’s defense

made perfect sense because defendant testified Webb was pointing a gun at him.

¶ 11 As stated, defendant also was allowed to testify he was afraid Webb was going to

shoot him and/or an officer approaching the vehicle based on what Webb said to him and the fact

Webb was pointing a gun at him. When asked why he did not run from the vehicle, defendant said

he could not because Webb had the gun and looked like he was ready to shoot. Defendant testified

he ran from the police after the chase ended because he was afraid of Webb.

¶ 12 Outside the presence of the jury, defendant made a motion regarding his affirmative

defenses of necessity and compulsion. The State objected to the necessity defense because

defendant was to blame because he should not have been driving on a revoked license. The trial

court allowed defendant’s compulsion defense but denied the necessity defense.

¶ 13 After deliberating, the jury found defendant guilty of driving while his license was

revoked, both counts of aggravated fleeing or attempting to elude a police officer, and unlawful

possession of a weapon by a felon.

¶ 14 On July 2, 2019, the trial court sentenced defendant to concurrent prison sentences

of seven years for unlawful possession of a weapon by a felon and two years for each count of

aggravated fleeing or attempting to elude a police officer. After imposing these sentences, the

court moved on to the driving with a revoked license charge, stating, “I am just simply entering a

conviction on that case.”

¶ 15 This appeal followed.

-5- ¶ 16 II. ANALYSIS

¶ 17 A. Hearsay and Jury Instructions

¶ 18 Defendant sought to present two affirmative defenses, necessity and compulsion,

to the aggravated fleeing charges by asserting he fled the scene of the initial stop because Jermario

Webb was pointing a gun at him and threatening defendant and/or the police officers. The trial

court sustained the State’s hearsay objection when defendant tried to offer testimony as to a threat

allegedly made by Webb. Defense counsel later told the court defendant would testify Webb told

defendant, “it’s either you or [the officer].” Although the trial court did not permit defendant to

testify to Webb’s exact threat, the court did allow defendant to testify Webb had a gun pointed at

him and defendant believed Webb was going to shoot defendant and/or a police officer, which was

why he fled the scene after initially stopping.

¶ 19 Defendant argues the trial court erred in sustaining the State’s hearsay objection to

Webb’s alleged threat because he did not want to introduce Webb’s statement for the truth of the

matter asserted, i.e., that Webb was actually going to shoot either defendant or one of the

approaching police officers. Instead, defendant argued he only wanted the jury to hear what Webb

said so it would understand why defendant fled the scene. In other words, defendant wanted the

jury to hear this evidence so it would consider the effect the statement had on defendant. Defendant

also argued Webb’s statement had independent legal significance for his affirmative defenses and

the trial court erred by barring defendant’s “necessity” affirmative defense. According to his brief,

when the trial court barred both evidence of Webb’s threat and the “necessity” defense instruction,

defendant could not present his full defense to the jury. Defendant argues each of these errors

require this court to reverse and remand for a new trial.

¶ 20 1. Webb’s Statement

-6- ¶ 21 We first look at the trial court’s ruling not to allow evidence of what Webb allegedly

said while pointing a gun at defendant. Defendant cites People v. Weatherspoon, 394 Ill. App. 3d

839, 850, 915 N.E.2d 761, 771-72 (2009), for the proposition an out-of-court statement offered for

a purpose other than establishing the truth of the matter asserted is not hearsay and may be

introduced to (1) establish the effect it had on someone who heard the statement and (2) explain

why the individual who heard the statement acted in a particular manner. In addition, citing People

v. Quick, 236 Ill. App. 3d 446, 451-52, 603 N.E.2d 53, 57 (1992), and People v. Kline, 90 Ill. App.

3d 1008, 1011-12, 414 N.E.2d 141, 144-45 (1980), defendant argues a person raising a necessity

defense or other affirmative defense may testify to out-of-court statements that are probative of

defendant’s state of mind during the incident in question. According to defendant, the prohibition

of this evidence denied him his constitutional right to present a defense.

¶ 22 We need not extensively discuss the merits of defendant’s argument here. Even

assuming, arguendo, the trial court abused its discretion by not allowing defendant to introduce

the specific words Webb used to threaten defendant, we find the error was harmless. In considering

whether an error is harmless, courts must balance the societal interests in judicial economy and

finality against a defendant’s interest in an error-free trial. People v. Mullins, 242 Ill. 2d 1, 23, 949

N.E.2d 611, 624 (2011). Structural errors, such as a complete denial of counsel or trial by a biased

judge or jury, are not subject to harmless-error review. Mullins, 242 Ill. 2d at 22, 949 N.E.2d at

624. An error cannot be considered harmless unless it can be shown beyond a reasonable doubt

that the constitutional error did not affect the trial’s outcome. Mullins, 242 Ill. 2d at 23, 949 N.E.2d

at 624. Simply stated, an error is harmless if an examination of the record shows the defendant

would have still been found guilty had the error not occurred. Mullins, 242 Ill. 2d at 23, 949

N.E.2d at 625.

-7- ¶ 23 Here, defendant was able to testify he fled the scene because Webb was pointing a

gun at him and defendant believed Webb was going to shoot him and/or a police officer because

of a statement made by Webb. The jury heard this evidence. The jurors clearly did not find

defendant’s testimony to be credible. Based on this record, any error in precluding the jury from

hearing the specific words Webb allegedly used while threatening defendant would not have

changed the outcome of the trial.

¶ 24 2. Necessity Jury Instruction

¶ 25 We next address defendant’s argument the trial court erred by denying defendant’s

request to provide the jury with a “necessity” defense instruction. A defendant is “entitled to

appropriate instructions which present [his] theories of the case to the jury when and if such

theories are supported by the evidence.” People v. Unger, 66 Ill. 2d 333, 338, 362 N.E.2d 319,

321 (1977). Defendant asked the court to provide both necessity and compulsion defense

instructions as to both aggravated fleeing charges. According to defendant, the instruction should

have been given because he presented evidence he believed he had to flee the traffic stop to avoid

his death and/or the death of a police officer approaching his vehicle during the initial stop.

¶ 26 In Unger, 66 Ill. 2d at 341, 362 N.E.2d at 322, the supreme court held a necessity

defense and a compulsion defense are “theoretically distinct.” Necessity is defined by statute as

follows: “Conduct which would otherwise be an offense is justifiable by reason of necessity if the

accused was without blame in occasioning or developing the situation and reasonably believed

such conduct was necessary to avoid a public or private injury greater than the injury which might

reasonably result from his own conduct.” 720 ILCS 5/7-13 (West 2018).

¶ 27 The defendant in Unger argued he should have been able to rely on a necessity

defense to his prison escape charge because he testified (1) he had been subjected to threats of

-8- forced homosexual activity and had been the victim of the threatened abuse, (2) he was not

physically capable of defending himself, and (3) he feared he would suffer greater harm if he

reported the threats and abuse to prison officials. Unger, 66 Ill. 2d at 341, 362 N.E.2d at 322-23.

The defendant also testified he was told he was going to be killed just prior to his escape, and he

fled the prison to save his own life. Unger, 66 Ill. 2d at 341, 362 N.E.2d at 323. Our supreme

court held the defendant’s “necessity” instruction should have been given. According to the court:

“In our view, the defense of necessity, as defined by our statute (Ill. Rev.

Stat. 1971, ch. 38, par. 7-13), is the appropriate defense in the present case. In a

very real sense, the defendant here was not deprived of his free will by the threat of

imminent physical harm which, according to the Committee Comments, appears to

be the intended interpretation of the defense of compulsion as set out in section

7-11 of the Criminal Code. (Ill. Ann. Stat., ch. 38, par. 7-11, Committee

Comments, at 423-33 (Smith-Hurd 1972)). Rather, if defendant’s testimony is

believed, he was forced to choose between two admitted evils by the situation

which arose from actual and threatened [sexual] assaults and fears of reprisal.

Though the defense of compulsion would be applicable in the unlikely event that a

prisoner was coerced by the threat of imminent physical harm to perform the

specific act of escape, no such situation is involved in the present appeal.”

(Emphasis added.) Unger, 66 Ill. 2d at 340-41, 362 N.E.2d at 322.

¶ 28 In this case, defendant makes a compelling argument the trial court erred in not

giving the “necessity” instruction. However, even assuming, arguendo, the trial court erred by not

giving the instruction, the error was harmless beyond a reasonable doubt because, unlike in Unger,

the jury here was given a “compulsion” defense instruction based on defendant’s testimony

-9- regarding Webb’s threatening behavior and defendant’s reaction to it. As stated earlier, the jury

obviously did not find defendant’s testimony credible. As a result, even if the jury had been given

the “necessity” defense instruction, the outcome of this case would have been the same.

¶ 29 B. Right to be Present

¶ 30 Defendant next argues his constitutional right to be present at all critical stages of

his trial was violated because the trial court prevented him from being able to see a video played

for the jury which affected the fundamental fairness of his trial. According to defendant’s brief to

this court:

“Defense counsel asked if he and [defendant] could move to see the video, and the

trial court refused. [Citation.] This inability to see the video prevented [defendant]

from being fully present and able to assist his attorney with his defense.

[Defendant’s] inability to see the evidence that was ultimately offered as

substantive evidence against him affected the fundamental fairness of his trial.”

Defendant acknowledges he did not preserve this argument but asks this court to review the alleged

error under the second prong of the plain-error analysis.

¶ 31 Our supreme court has traditionally identified two situations where it is appropriate

to excuse a forfeiture: (1) when a clear or obvious error occurred and the evidence is so closely

balanced that the error alone threatened to tip the scales of justice against the defendant, regardless

of the seriousness of the error, or (2) when a clear or obvious error occurred and that error is so

serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence. People v. Sebby, 2017 IL 119445,

¶ 48, 89 N.E.3d 675. Generally, the first step of any plain error analysis is determining whether a

clear or obvious error occurred. Sebby, 2017 IL 119445, ¶ 49.

- 10 - ¶ 32 Contrary to defendant’s assertion he could not see the video at the trial, the record

in this case does not clearly show this is accurate. Defense counsel asked the trial court, “Judge,

can I move so that I can see the videos with my client?” The court responded, “No. You may

move though.” Based on this brief exchange, it is not clear defendant could not see the videos

played at the trial. Further, it is not clear if defense counsel moved. Even assuming defense

counsel did move, it is not clear where he moved in relation to defendant’s position in the

courtroom. As a result, the record does not establish the trial court made the error of which

defendant complains, i.e., not allowing defendant to view video evidence introduced against him.

¶ 33 C. Ineffective Assistance of Counsel

¶ 34 Defendant next argues his trial counsel was ineffective because he did not move to

sever defendant’s trial on the unlawful possession of a weapon by a felon charge from his trial on

the aggravated fleeing charges. To establish ineffective assistance of counsel, defendant must

show (1) counsel’s representation fell below an objective standard of reasonableness which

(2) prejudiced defendant. Strickland v. Washington, 466 U.S. 668, 690-694 (1984). An attorney’s

ineffectiveness is prejudicial if a reasonable probability exists the result of the proceeding would

have been different absent the ineffective assistance of counsel. Strickland, 466 U.S. at 694. A

reasonable probability is “a probability sufficient to undermine confidence in the outcome” of the

case. Strickland, 466 U.S. at 694.

¶ 35 While the State can pursue multiple charges in a single prosecution, a defendant

can ask for the charges to be separated into multiple trials if he would be prejudiced by having to

defend against the multiple charges in a single trial. 725 ILCS 5/114-8 (West 2018). Here, defense

counsel did not request separate trials.

¶ 36 “Generally, a defense decision not to seek a severance, although it may prove

- 11 - unwise in hindsight, is regarded as a matter of trial strategy.” People v. Fields, 2017 IL App (1st)

110311-B, ¶ 24, 75 N.E.3d 503. The First District in Fields stated:

“[W]hen deciding whether to seek a severance, defense counsel may choose to

pursue an ‘all or nothing’ trial strategy, in which the defendant is acquitted or

convicted of all charges in a single proceeding. Illinois case law endorses the

‘all-or-nothing’ strategy in other situations, such as where the defense decides to

forego the fact finder’s consideration of lesser included offenses. [Citation.] The

mere fact that an ‘all-or-nothing’ strategy proved unsuccessful does not mean

counsel performed unreasonably and rendered ineffective assistance.” Fields, 2017

IL App (1st) 110311-B, ¶ 28.

The First District also noted any prejudice the defendant might have suffered by the jury hearing

the defendant was a convicted felon was mitigated in the case because the parties stipulated the

jury would only learn the mere fact of the defendant’s prior conviction without hearing any

specifics of the prior conviction. The court noted defense counsel “may have believed that the

odds of getting two acquittals were greater in one proceeding, rather than two proceedings.” As a

result, the defendant failed to overcome the strong presumption his attorney’s action or inaction

resulted from sound trial strategy. Fields, 2017 IL App (1st) 110311-B, ¶ 28.

¶ 37 Based on this record, defendant has failed to overcome the presumption his trial

counsel made an “all or nothing” strategic decision not to move to sever the charges. The State

concedes defendant’s prior felony conviction, which was used to establish an element of the

unlawful possession of a weapon by a felon charge, would have been inadmissible in a trial on just

the aggravated fleeing counts because of the 10-year time limitation adopted by our supreme court

in People v. Montgomery, 47 Ill. 2d 510, 516, 519, 268 N.E.2d 695, 698, 700 (1971). However,

- 12 - this does not establish defense counsel was ineffective. While defense counsel’s decision not to

move to sever the charges carried the possibility of prejudicing the jury on the aggravated fleeing

charges because a jury in a separate trial on the aggravated fleeing charges would not have learned

about defendant’s prior felony conviction, we note many strategic decisions carry the possibility

of prejudice. As in Fields, defense counsel was able to mitigate any prejudice by entering the

stipulation which kept the jury from learning what felony defendant committed.

¶ 38 D. Cumulative Errors

¶ 39 Defendant next argues the cumulative effect of the alleged errors he raised in the

prior arguments deprived him of a fair trial. Because we have determined the record neither

establishes (1) defendant could not see the video evidence when it was played for the jury nor

(2) defense counsel’s assistance was constitutionally ineffective, defendant’s argument fails. We

need not address it further.

¶ 40 E. Defendant’s Sentence

¶ 41 Defendant also argues his sentence for unlawful possession of a weapon by a felon

(720 ILCS 5/24-1.1 (West 2018)) resulted from an impermissible double enhancement. “A double

enhancement occurs when (1) a single factor is used both as an element of an offense and as a

basis for imposing a harsher sentence than might otherwise have been imposed or (2) the same

factor is used twice to elevate the severity of the offense itself.” People v. Garcia, 2018 IL App

(4th) 170339, ¶ 29, 99 N.E.3d 571.

¶ 42 As noted in defendant’s brief, the State was required to prove defendant knowingly

possessed a weapon and was a convicted felon to find him guilty of unlawful possession of a

weapon by a felon (720 ILCS 5/24-1.1 (West 2018)). Because a weapon is inherently dangerous,

defendant argues it is presumed the legislature took this into account when it determined the

- 13 - penalty range for the offense. However, according to defendant, the trial court imposed a

seven-year sentence on this charge in part because defendant’s conduct threatened the community

with serious harm, which defendant argues was an improper double enhancement.

¶ 43 Defendant concedes he forfeited this argument on appeal because he did not raise

the issue in the trial court. However, he asks us to review the issue pursuant to the plain error

doctrine. Generally, as previously noted, the first step in a plain error analysis is to determine

whether a clear or obvious error occurred. Sebby, 2017 IL 119445, ¶ 49. Based on the record, the

trial court did not commit a clear and obvious error when it sentenced defendant.

¶ 44 The trial court did not make lengthy comments when it sentenced defendant but did

state the following:

“When I look at the factors in aggravation, I find that the defendant’s

conduct caused or threatened serious harm, that the defendant has a history of prior

delinquency or criminal activity, and I guess most importantly, that the sentence is

necessary to deter others from committing the same crime. Based on the jury’s

verdict and the rejection of the affirmative defenses and the—and your actions in

the commission of this crime, the factor regarding the deterrence of others

committing the same crime is the one that stands out in my mind.

As [the State] has indicated, and as [defense counsel] agreed, the amount of

gun violence in this community is at peak level. It is excessive; it is disgusting.

Many, many people are getting hurt. Our community is basically a wreck because

of the gun violence in this community. And so I feel it’s extremely important for

me to send a strong message to anyone who’s anywhere near a gun that I’m not

going to tolerate it. I’m going to send a strong message that I am not going to

- 14 - tolerate it.”

The court then sentenced defendant to seven years in prison for unlawful possession of a weapon

by a felon and concurrent two year terms for his aggravated fleeing offenses.

¶ 45 Our state constitution states “[a]ll penalties shall be determined both according to

the seriousness of the offense and with the objective of restoring the offender to useful citizenship.”

Ill. Const. 1970, art. I, § 11. “The trial court has broad discretionary powers when selecting an

appropriate sentence.” Garcia, 2018 IL App (4th) 170339, ¶ 37. A trial court must impose a

sentence based on the particular circumstances of a case, including (1) the defendant’s history,

character, and rehabilitative potential, (2) the seriousness of the crime, (3) the need to protect

society, and (4) the need for punishment and deterrence. Garcia, 2018 IL App (4th) 170339, ¶ 37.

A defendant bears the burden of establishing his sentence was based on an improper factor. People

v. Hibbler, 2019 IL App (4th) 160897, ¶ 65, 129 N.E.3d 755. Based on the trial court’s comments

in sentencing defendant, defendant has not established his sentence resulted from an improper

double enhancement.

¶ 46 This court has held a sentencing court can treat a defendant’s conduct as an

aggravating factor if the conduct threatened or caused serious harm. When determining whether

a defendant threatened serious harm, the sentencing court compares the defendant’s conduct

against the minimum conduct necessary to commit the offense. An offense may be committed in

a wide variety of ways, with varying degrees of threatened or actual harm. As a result, a sentencing

court must focus on the degree or gravity of the defendant’s conduct. Hibbler, 2019 IL App (4th)

160897, ¶ 67.

¶ 47 To be convicted of unlawful possession of a weapon by a felon, a defendant need

not be in possession of a firearm. Instead, many items much less dangerous than a firearm qualify

- 15 - as a weapon under section 24-1.1 of the Criminal Code of 2012 (720 ILCS 5/24-1.1 (West 2018)),

including “any bludgeon, black-jack, slung-shot, sand-bag, metal knuckles or other knuckle

weapon regardless of its composition, throwing star, *** switchblade knife, *** or a ballistic

knife[.]” 720 ILCS 5/24-1, 1.1 (West 2018). Had defendant possessed any of these items instead

of a firearm, the sentencing range for the offense would have still been the same, not less than 2

years and not more than 10 years in prison. 720 ILCS 5/24-1.1(a), (e) (West 2018). As a result,

the trial court did not err in considering the degree of threatened harm to the community which

resulted from defendant’s possession of a firearm, a more dangerous weapon than those previously

listed, in sentencing defendant within the applicable sentencing range.

¶ 48 F. Jury Admonishments

¶ 49 In his initial brief to this court, defendant argued the trial court erred in the manner

it admonished the potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. July 1,

2012). However, in his reply brief, defendant withdrew his argument pursuant to our supreme

court’s decision in People v. Birge, 2021 IL 125644. As a result, we will not address this issue

further.

¶ 50 III. CONCLUSION

¶ 51 For the reasons stated, we affirm the trial court’s judgment.

¶ 52 Affirmed.

- 16 -