People v. Matias

2023 IL App (2d) 220445-U

• Court: Appellate Court of Illinois
• Decided: October 20, 2023
• Docket: 2-22-0445
• Status: Unpublished

Opinion

2023 IL App (2d) 220445-U No. 2-22-0445 Order filed October 20, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kendall County. ) Plaintiff-Appellee, ) ) v. ) No. 19-CF-19 ) JOSUA C. MATIAS, ) Honorable ) Robert P. Pilmer, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE KENNEDY delivered the judgment of the court. Presiding Justice McLaren and Justice Schostok concurred in the judgment.

ORDER

¶1 Held: (1) The trial court did not err in declining to instruct the jury on self-defense because, although defendant had been physically assaulted by fellow bar patrons, the ensuing melee had ceased, and no one near him posed any imminent danger, when he shot one of the assailants and another bar patron. (2) The trial court did not err in refusing to instruct the jury on reckless discharge of a firearm as a lesser included offense of aggravated discharge of a firearm, nor was trial counsel ineffective for failing to request an instruction on reckless conduct as a lesser included offense of aggravated battery with a firearm. Given how defendant aimed the gun, no rational jury could have found that he discharged the gun recklessly rather than knowingly fired in the direction of other people and wounded the victims. 2023 IL App (2d) 220445-U

¶2 Defendant, Josua C. Matias, appeals from a jury verdict finding him guilty of aggravated

battery with a firearm (720 ILCS 5/12-3.05(e)(1) (West 2016)) and aggravated discharge of a

firearm (720 ILCS 5/24-1.2(a)(2) (West 2016)). He contends that (1) the trial court erred in

refusing to instruct the jury on self-defense, (2) the trial court erred in refusing to instruct the jury

on reckless discharge of a firearm as a lesser included offense of aggravated discharge of a firearm,

and (3) his trial counsel was ineffective for failing to request a jury instruction on reckless conduct

as a lesser included offense of aggravated battery with a firearm. Because none of defendant’s

claims has merit, we affirm.

¶3 I. BACKGROUND

¶4 After a jury trial, defendant was found guilty of two counts of aggravated battery with a

firearm and one count of aggravated discharge of a firearm.

¶5 The following facts were established at the jury trial. In the early evening of January 6,

2019, defendant and a friend entered Rosati’s restaurant in Montgomery. Defendant was armed

with a semiautomatic handgun.

¶6 During the evening, defendant talked with several people, including Lorena Cortez, 1 with

whom he socialized regularly. At around 10:30 p.m., defendant and Omar Dieppa, whom

defendant had not met before, began to argue. The argument escalated into a brawl after Omar

punched defendant in the face.

¶7 Two security videos, without audio, were entered into evidence via a stipulation and

showed the relevant events from two different viewpoints within the restaurant’s bar area. In the

videos, defendant and Omar were arguing. Then several other people began to argue with

defendant. Suddenly, Omar punched defendant in the face. Defendant began to punch back. Then

1 In his testimony, defendant referred to her as Lorena Ramirez, her prior name.

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numerous people joined the fight, and a melee ensued. The fracas moved into a nearby booth,

knocking down the booth table. Two people, defendant’s friend and another man, tried to help

defendant. Also joining the fight were four or five of Omar’s friends and family.

¶8 As the fight continued in the booth, defendant fell out from under the pile of people and

sat momentarily on the floor near the booth. As defendant sat on the floor, Omar, having fallen

next to him, punched defendant in the head with his left fist. Immediately afterward, another man,

Roberto Dieppa, stepped up behind defendant and struck him on the left side of his head with a

beer bottle. Roberto was then pushed by another man several feet away from defendant and the

booth.

¶9 At that point in the videos, defendant stood up and took several shaky steps backward

toward the bar while reaching into his right front pocket. Armando Gonzalez, who stood at the bar

facing defendant’s back, gave defendant a slight push forward, away from the bar and back toward

the booth. Defendant then began walking quickly forward with his right hand still in his pocket,

taking approximately seven stumbling steps toward the side of the booth, onto the booth platform

(now missing its table), then back onto the floor and away from his attackers. The melee at this

point appears to have stopped, with no further punches being thrown. Blood was running down

defendant’s head from where he had been struck with the bottle.

¶ 10 Once he reached the far side of the booth from the bar, defendant pulled a handgun from

the front of his pants with his right hand. In the same motion, defendant used his left hand to slide

the top rail of the gun back, to chamber a cartridge. He then turned back to his right, facing the

area of the fight. He raised the gun and fired four shots in quick succession while stepping

backward away from the area of the fight and the other people in the bar area. According to the

time stamp on the videos, defendant fired the first shot approximately five seconds after he stood

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up. During those five seconds, none of defendant’s attackers moved toward defendant or appeared

to pursue defendant or his friends.

¶ 11 The first shot appeared to be aimed toward the ceiling, although at an angle parallel to the

front of the booth and in the general direction of where defendant had been struck with the beer

bottle. The second shot was also aimed upward, but the third was at a lower angle. Defendant held

the gun high, and each shot caused the gun to recoil, sending defendant’s right arm upward. After

the second shot, defendant immediately lowered the gun toward the same area and stumbled

backward while firing a third shot. Cortez was standing next to defendant but was focused on

defendant’s friend and appeared unaware of defendant’s presence next to her until the first shot

was fired. Defendant then lowered the gun again, now to chest level, aiming in the same direction

but now slightly downward and directly toward where Omar was sitting on the floor. He fired a

fourth shot, which struck Cortez in the arm from a distance of approximately two or three feet.

Cortez was not moving toward defendant; neither defendant nor Cortez appeared to see each other

at first. As these first four shots were fired, the people in the bar began to scatter and take cover,

including Omar, who, after the fourth shot, limped toward the bar. According to the time stamp,

the first four shots were fired within less than two seconds of each other.

¶ 12 Defendant then continued toward the front door of the restaurant, pushing through tables

and chairs. The videos do not show anyone following or near defendant at that point, although

Cortez had stumbled and fallen in a parallel direction to defendant’s exit route from the restaurant,

landing on the floor approximately 10 feet from defendant, a long table between them. Two people

went to help Cortez on the floor, but neither of them moved beyond where she fell or in the

direction of defendant. Having taken eight steps toward the front exit, and with no people between

himself and the door, defendant again aimed his gun back toward people in the bar area, firing

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three more shots in the direction of where Omar had now begun to hide. The time elapsed between

the fourth and fifth shots was approximately six seconds; the fifth, sixth, and seventh shots were

fired in immediate succession to one another. When defendant fired the fifth shot, a glass filled

with beer on a nearby table shattered. The table was approximately three feet off the ground. After

firing the seventh shot, Defendant then ran out the front door.

¶ 13 Officer Matthew Demetral of the Montgomery Police Department next testified that at

about 10:25 p.m., he was dispatched to Rosati’s to respond to a large fight in progress. When he

arrived, he saw several people walking or running in different directions from the restaurant. When

he entered, he saw that Cortez had a gunshot wound to her left forearm and Omar had a gunshot

wound to his lower left leg.

¶ 14 Officer Anthony Hull of the Montgomery Police Department responded to the crime scene

as an evidence technician. He found six spent shell casings in various locations in the dining/bar

area. The casings were all marked “7.65 Browning.” Hull also found a fired bullet under a chair

and a bullet fragment in the booth area. After observing what appeared to be a bullet hole in the

wall of the booth area, he recovered a fired bullet from inside the wall. He also observed what he

believed was a bullet impact near the ceiling on a ceramic-covered wall behind the booths.

¶ 15 Detective Daniel Gonzalez of the Montgomery Police Department testified that another

detective found a fired bullet in the ceiling of a bathroom. According to Gonzalez, Cortez reported

that she was hit by the second shot that defendant fired as he ran toward the front door. Omar

reported that he was shot while standing near the bar, but he did not know which shot hit him.

¶ 16 No victims or occurrence witnesses testified on behalf of the State.

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¶ 17 Defendant testified for the defense. He admitted to carrying a loaded semiautomatic

handgun into the restaurant. During the evening, he talked with Cortez, who showed up with some

other people.

¶ 18 At around 10:30 p.m., defendant was talking with Cortez between the bar and a table.

Henry Saucedo interrupted the conversation and began arguing with defendant about something.

Cortez defused the situation, and she, defendant, and Saucedo separated. A few moments later,

Saucedo reapproached along with Omar and both men began to argue with defendant. Omar then

“sucker punche[d]” defendant in the face. Defendant immediately fought back by punching Omar.

¶ 19 A group of people then joined in the fight, knocking defendant into a booth. They started

kicking and punching defendant. Defendant was not injured while in the booth but wanted to “get

out of there.” He managed to duck down and crawl out on the floor.

¶ 20 As he sat on the floor near the booth, someone behind him hit him on the side of the head

with something hard. He did not know who or what hit him. According to defendant, he was in

tremendous pain, and blood began squirting from his head wound. The blood ran into his left eye,

blurring his vision.

¶ 21 Because defendant feared being hit again, he stood up, grabbed his gun, and fired several

shots into the air to scare people away. He stumbled into tables and chairs as he ran toward the

front door. According to defendant, because he heard someone say, “get him,” and saw Saucedo

and another man, Alfonso Dieppa, coming in his direction, he fired more shots as he moved toward

the front door. He denied ever aiming the handgun at anyone or wanting to shoot Cortez or Omar.

He could not recall how many times he fired the handgun. According to defendant, he fired the

handgun in the air because he had been hit on the head, was outnumbered by his attackers, and

feared what might happen next.

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¶ 22 On cross-examination, defendant admitted that, although he brought the handgun into

Rosati’s for his own safety, no one had threatened him before he went there. He went there to

“have some drinks” and watch the Bears game. The handgun’s magazine was loaded, but he had

to chamber a round before firing the first shot.

¶ 23 Although defendant could not recall what the argument with Omar was about, he affirmed

that it was “just arguing” and he was not afraid during it. After Omar punched him, defendant and

his two friends began punching Omar. When asked why he did not run straight for the front door

after being hit on the head from behind, defendant answered that he was “trying to get away from

[whoever] just hit [him] from behind.” Defendant admitted that he saw no one fighting when he

reached for his handgun. He also admitted that he did not see anyone chasing him after he initially

stood up and ran. Nonetheless, he felt that everyone was threatening him when he chambered the

first round. He initially fired three shots.

¶ 24 After firing the first three shots, defendant moved toward the front door. He admitted that

he could see properly out of his right eye the entire time. According to defendant, he fired the

second burst of shots because he saw two people coming toward him. However, he did not see

them carrying a gun or any other weapons. No one else was near him when he fired the second

burst of shots. Once in the front entry area of the restaurant, he fired one more shot because

Saucedo was coming toward him. According to defendant, he fired the last shot up in the air.

¶ 25 After defendant left Rosati’s, he disposed of the handgun. He sought no medical attention

for his head wound. Instead, he drove to a friend’s house where he passed out. The next day, he

awoke with his head bandaged.

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¶ 26 Defendant sought a self-defense instruction. The trial court refused to instruct the jury on

self-defense, reasoning that the State’s evidence “negate[d]” more than one of the elements

necessary for the instruction.

¶ 27 As to the charge of aggravated discharge of a firearm, defendant sought lesser-included-

offense instructions for reckless discharge of a firearm and reckless conduct. The trial court refused

to give either instruction because it did not believe that the jury could find defendant not guilty of

aggravated discharge of a firearm but guilty of either reckless discharge of a firearm or reckless

conduct. Counsel did not seek a lesser-included-offense instruction on the aggravated battery

charges.

¶ 28 The jury found defendant guilty of aggravated discharge of a firearm and both counts of

aggravated battery with a firearm (Cortez and Omar). The trial court sentenced defendant to 10

years’ imprisonment for aggravated battery with a firearm (Omar), 20 years’ imprisonment for

aggravated battery with a firearm (Cortez), and 10 years’ imprisonment for aggravated discharge

of a firearm. Defendant then filed this timely appeal.

¶ 29 II. ANALYSIS

¶ 30 On appeal, defendant contends that (1) the trial court erred in refusing to instruct the jury

on self-defense, (2) the trial court erred in refusing to instruct the jury on reckless discharge of a

firearm as a lesser included offense of aggravated discharge of a firearm, and (3) his trial counsel

was ineffective for failing to request a jury instruction on reckless conduct as a lesser included

offense of aggravated battery with a firearm.

¶ 31 We first address defendant’s contention regarding the self-defense instruction. Section 7-

1(a) of the Criminal Code (Code) of 2012 (720 ILCS 5/7-1(a) (West 2016)) provides, in pertinent

part, that a “person is justified in the use of force against another when and to the extent that he

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reasonably believes that such conduct is necessary to defend himself or another against such

other’s imminent use of unlawful force.” However, a person “is justified in the use of force which

is intended or likely to cause death or great bodily harm only if he reasonably believes that such

force is necessary to prevent imminent death or great bodily harm to himself or another, or the

commission of a forcible felony.” 720 ILCS 5/7-1(a) (West 2016).

¶ 32 To obtain a jury instruction on self-defense, the defendant must establish “some evidence”

on each of six elements: (1) force is threatened against the defendant, (2) the defendant is not the

aggressor, (3) the danger of harm is imminent, (4) the threatened force was unlawful, (5) the

defendant actually and subjectively believed a danger existed that required the use of the force

applied, and (6) the defendant’s beliefs were objectively reasonable. People v. Cacini, 2015 IL

App (1st) 130135, ¶ 44 (citing People v. Jeffries, 164 Ill. 2d 104, 128 (1995)). A defendant is

entitled to a self-defense instruction “even if very slight or only some evidence exists to support

the theory of self-defense.” Cacini, 2015 IL App (1st) 130135, ¶ 45 (citing People v. Lee, 213 Ill.

2d 218, 224 (2004)). A self-defense instruction should not be given if the defendant fails to make

the required evidentiary showing as to one or more of the factors. See People v. Lewis, 2015 IL

App (1st) 122411, ¶ 56. When the trial court, after reviewing all the evidence, determines that there

is insufficient evidence to justify a particular instruction, the proper standard of review is abuse of

discretion. People v. McDonald, 2016 IL 118882, ¶ 42. If “some,” or even “slight,” evidence exists

to support a theory of self-defense, it is an abuse of discretion for the trial court to refuse to give

the instruction. People v. Jones, 175 Ill. 2d 126, 132 (1997). The trial court’s ruling on whether to

give an instruction may be affirmed on any basis in the record. People v. Mulvey, 366 Ill. App. 3d

701, 711 (2006).

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¶ 33 Here, defendant failed to establish some or even slight evidence on two of the six factors. 2

First, the videos show that when defendant fired the handgun, there was no longer an imminent

threat of harm justifying the use of deadly force. As noted, section 7-1 of the Code allows deadly

force in self-defense only if the person using it reasonably believed it was necessary to prevent

imminent death or great bodily harm. 720 ILCS 5/7-1(a) (West 2016). The videos make clear that,

when he fired the first burst of shots, defendant had already separated himself from his attackers

and from anyone who might have had a weapon likely to cause death or great bodily harm. 3 Also,

defendant testified that he did not see anyone with a weapon when he fired any of the initial shots.

Further, when defendant fired the second burst of shots, no one with a visible weapon was

anywhere near him. Indeed, the videos show people scattering and seeking cover after the first

2 When the trial court rejected the self-defense instruction by finding that the State had

“negate[d]” several of the factors, the court was not applying the test for whether defendant was

entitled to a self-defense instruction. Rather, the court was applying the test for whether, once a

self-defense instruction has been given, the jury properly rejected the self-defense theory. See

People v. Jeffries, 164 Ill. 2d 104, 128 (1995) (“If the State negates any one of the self-defense

elements, the defendant’s claim of self-defense must fail.” (Emphasis in original.)) However, as

discussed, we may affirm on any basis supported by the record. 3 We recognize that hitting someone in the head with an unbroken glass beer bottle would

constitute the use of deadly force. See People v. Varela, 194 Ill. App. 3d 357, 368 (1990) (“Under

the circumstances presented, there is no question the [glass] bottle, intact or broken, constituted a

dangerous weapon under the armed violence statute.”); see also People v. Villalobos, 53 Ill. App.

3d 234, 240 (1977); People v. Fort, 119 Ill. App. 2d 350, 354 (1970).

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burst of shots. Although defendant testified that he fired the second burst of shots because he heard

someone say, “get him” and saw two people coming toward him the videos do not show anyone

approaching him when he fired the second burst. Additionally, when he fired the final shots before

exiting the restaurant, there was no one anywhere near him, much less anyone with a weapon.

Based on the clear video evidence, there was simply no indication, even slight, that defendant was

subject to the threat of imminent harm when he fired any of the shots. That alone was a proper

basis to deny giving a self-defense instruction.

¶ 34 Second, there was no evidence, even slight, that any subjective belief by defendant that the

use of deadly force was necessary was objectively reasonable. As discussed, no reasonable person

in defendant’s position could believe that it was necessary to fire seven (or any) shots to prevent

the imminent use of force after (1) defendant moved several steps away from Roberto (the assailant

with the bottle, who had already been pushed in the opposite direction), (2) the brawl stopped, and

(3) no one with any sort of weapon was anywhere near defendant. Nor would a reasonable person

believe that, after further separating himself from his assailants and everyone else by running

toward the front door, it was necessary to fire a second burst of shots in the direction of the people

in the restaurant. Thus, there was no evidence, even slight, that defendant’s subjective belief that

deadly force was necessary to protect himself from further harm was objectively reasonable. Thus,

we hold that the trial court did not err in refusing the self-defense instruction.

¶ 35 We next address whether the trial court erred in refusing to instruct the jury on the

uncharged offense of reckless discharge of a firearm as a lesser included offense of aggravated

discharge of a firearm.

¶ 36 A lesser included offense is one that “[i]s established by proof of the same or less than all

of the facts or a less culpable mental state (or both), than that which is required to establish the

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commission of the offense charged[.]” 720 ILCS 5/2-9(a) (West 2016). Our supreme court has

established a two-part approach for determining whether a defendant is entitled to a jury instruction

on a lesser included offense. People v. Ceja, 204 Ill. 2d 332, 360 (2003). First, the court must

determine whether the charging instrument described the lesser offense. Ceja, 204 Ill. 2d at 360.

At a minimum, the charging instrument must contain “a broad foundation or main outline of the

lesser offense.” Ceja, 204 Ill. 2d at 360. Second, if the charging instrument identifies a lesser

included offense, the evidence at trial must rationally support a conviction on the lesser included

offense. Ceja, 204 Ill. 2d at 360. To that end, a court must examine the evidence presented and

determine whether the evidence would permit a jury to rationally find the defendant guilty of the

lesser included offense but acquit the defendant of the greater offense. Ceja, 204 Ill. 2d at 360.

¶ 37 A trial court’s determination of whether the uncharged offense is a lesser included offense

of the charged crime is a question of law subject to de novo review. People v. Kolton, 219 Ill. 2d

353, 361 (2006). However, a trial court’s decision not to give a lesser included instruction because

the evidence does not rationally support a conviction for the lesser included offense is reviewed

for an abuse of discretion. See People v. Jones, 219 Ill. 2d 1, 31 (2006).

¶ 38 Here, we first determine that the charge of aggravated discharge of a firearm broadly

defined the offense of reckless discharge of a firearm.

¶ 39 Reckless discharge of a firearm requires proof that the defendant (1) recklessly discharged

a firearm and, in doing so, (2) endangered the bodily safety of an individual. 720 ILCS 5/24-1.5(a)

(West 2016).

“A person *** acts recklessly when that person consciously disregards a substantial

and unjustifiable risk that circumstances exist or that a result will follow, described by the

statute defining the offense, and that disregard constitutes a gross deviation from the

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standard of care that a reasonable person would exercise in the situation.” 720 ILCS 5/4-6

“The discharge of a firearm is reckless when the act creates a substantial and unjustifiable risk to

others.” People v. Giraud, 2012 IL 113116, ¶ 21.

¶ 40 The indictment here charged defendant with knowingly or intentionally discharging a

firearm in the direction of another person. Clearly, discharging a firearm in the direction of another

person would necessarily endanger, at the very least, the bodily safety of that person. Further,

recklessness is a less culpable mental state than knowledge. See People v. Fornear, 176 Ill. 2d

523, 531 (1997); see also People v. Williams, 293 Ill. App. 3d 276, 281 (1997). Therefore, the

charge of aggravated discharge of a firearm here broadly defined the offense of reckless discharge

of a firearm. Thus, it satisfied the first part of the two-part test for giving a lesser-included-offense

instruction.

¶ 41 However, we must further determine whether the evidence would have permitted the jury

rationally to find defendant guilty of the lesser offense of reckless discharge of a firearm while

finding him not guilty of the greater offense of aggravated discharge of a firearm.

¶ 42 Although defendant testified that he never fired the gun at anyone but, rather, shot it only

in the air, that testimony was belied by the video evidence. The videos show defendant firing the

gun multiple times in the direction of several people, striking two of them. Defendant repeatedly

lowered the gun in the direction of Omar and others near him. Moreover, the videos show that the

last shots he fired were from chest level aimed downward toward people in the bar; one shot broke

a beer glass on a table approximately three feet high. Further, one of the shots struck Cortez in the

forearm and one hit Omar in the lower leg. These were not fired “into the air.” The video evidence

and the fact that two individuals were shot directly conflicts with defendant’s testimony that he

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did not intentionally shoot the handgun at anyone. Considering the overwhelming evidence that

defendant knowingly or intentionally discharged the firearm in the direction of people in the bar,

a jury could not have rationally found that he had been merely reckless in doing so. Thus, the trial

court did not abuse its discretion in refusing to give an instruction on reckless discharge of a

firearm as a lesser included offense of aggravated discharge of a firearm.

¶ 43 We next address defendant’s remaining assertion that his trial counsel was ineffective for

failing to request an instruction on reckless conduct as a lesser included offense of aggravated

battery with a firearm.

¶ 44 To establish a claim of ineffective assistance of counsel, a defendant must show that

(1) counsel’s performance was deficient and (2) the deficient performance prejudiced the

defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant must satisfy both

prongs, and failing to satisfy either prong precludes a finding of ineffective assistance. People v.

Milton, 354 Ill. App. 3d 283, 289 (2004).

¶ 45 As discussed above, the existence of a lesser included offense does not necessarily create

an automatic right to an instruction on that offense. People v. Greer, 336 Ill. App. 3d 965, 978

(2003). Rather, a defendant is entitled to have the jury instructed on a lesser included offense only

if the evidence presented would permit a jury to rationally find him guilty of the lesser included

offense but find him not guilty of the greater offense. Ceja, 204 Ill. 2d at 360.

¶ 46 Turning to whether reckless conduct was a lesser included offense of aggravated battery

with a firearm as charged, the indictment charged defendant with aggravated battery with a firearm

in that he “knowingly discharged a firearm and caused injury to [Cortez and Omar].” The offense

of reckless conduct occurs when a person recklessly performs an act that causes bodily harm to or

endangers the safety of another person. 720 ILCS 5/12-5(a)(1) (West 2016). The only difference

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here between the charged offense and reckless conduct is the mental state. People v. Lane, 2017

IL App (1st) 151988, ¶ 15. An allegation of recklessness can be inferred from the more culpable

mental state of knowledge. Lane, 2017 IL App (1st) 151988, ¶ 15). Because the only difference

between reckless conduct and aggravated battery with a firearm as charged here was the mental

states, reckless conduct was a lesser included offense of aggravated battery with a firearm.

¶ 47 However, although reckless conduct was a lesser included offense of aggravated battery

with a firearm, an instruction should be given only where a jury could rationally find defendant

guilty of reckless conduct but find him not guilty of aggravated battery with a firearm. See Ceja,

204 Ill. 2d at 360.

¶ 48 As with defendant’s argument as to the lesser included offense of reckless discharge of a

firearm, the evidence here did not permit an instruction on reckless conduct. Considering the clear

video evidence that defendant knowingly fired numerous shots in the direction of individuals and

struck two of them, no jury could have rationally found him guilty of reckless conduct and not

guilty of aggravated battery with a firearm. Thus, trial counsel was not deficient in failing to

request an instruction on the lesser included offense of reckless conduct.

¶ 49 Nor was defendant prejudiced by counsel’s failure to request a lesser included offense

instruction on reckless conduct. As discussed above, there was no factual basis for instructing the

jury on recklessness. Therefore, there was not a reasonable probability that the trial outcome would

have been different, even had that instruction been given. See Strickland, 466 U.S. at 694. The

video evidence overwhelmingly showed defendant firing his handgun several times in the direction

of individuals in the restaurant, including multiple shots at his primary assailant. In doing so, he

clearly knew that one or more of the bullets would likely strike one or more of those individuals.

Had the jury been given the option of finding that he acted merely recklessly as opposed to

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knowingly, there was not a reasonable probability that it would have found, based on all of the

evidence, that he acted recklessly as opposed to knowingly. Thus, defendant has also failed to

establish the prejudice prong of his ineffective assistance of counsel claim.

¶ 50 For the foregoing reasons, the trial court did not err in refusing to give a self-defense

instruction or in refusing to give an instruction on reckless discharge of a firearm as a lesser

included offense of aggravated discharge of a firearm. Nor was trial counsel ineffective for failing

to seek an instruction on reckless conduct as a lesser included offense of aggravated battery with

a firearm.

¶ 51 III. CONCLUSION

¶ 52 For the reasons stated, we affirm the judgment of the circuit court of Kendall County.

¶ 53 Affirmed.

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