People v. Medina

2023 IL App (2d) 220127-U

Opinion

2023 IL App (2d) 220127-U No. 2-22-0127 Order filed June 29, 2023

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

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-1128 ) ANTHONY C. MEDINA, ) Honorable ) David P. Kliment, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court. Justices Jorgensen and Kennedy concurred in the judgment.

ORDER

¶1 Held: Defendant’s trial counsel did not provide ineffective assistance where defendant could not show prejudice arising from the jury instruction pertaining to the 25-year firearm enhancement.

¶2 Defendant, Anthony C. Medina, was convicted of first degree murder (720 ILCS 5/9-

1(a)(1) (West 2016)), armed violence (720 ILCS 5/33A-2(b) (West 2016)), and aggravated battery

with a firearm (720 ILCS 5/17-3 (West 2016)) from a June 10, 2017, shooting resulting in the

death of Rodolfo Rocha. Defendant was sentenced to an aggregate 80-year term of imprisonment,

which included the 25-year firearm enhancement for personally discharging a firearm that caused

great bodily harm, permanent disfigurement, or death to the victim. 730 ILCS 5/5-8-1(a)(1)(d)(iii) 2023 IL App (2d) 220127-U

(West Supp. 2017). On appeal, defendant contends that trial counsel provided ineffective

assistance by not objecting to the inclusion of death in the firearm enhancement jury instruction

because the evidence conclusively demonstrated that defendant did not fire the fatal shots.

Because defendant cannot demonstrate prejudice arising from the jury instruction, we affirm.

¶3 I. BACKGROUND

¶4 Early in the morning of June 10, 2017, defendant and Martin Garcia, both members of the

Latin Kings street gang, approached a group of friends drinking and listening to music. Defendant

and Garcia both fired multiple gunshots, causing the group to scatter. Rocha was killed by multiple

gunshots to his body. On July 26, 2017, defendant was indicted for Rocha’s murder along with

other offenses. On January 24, 2022, the case advanced to a jury trial. 1

¶5 Diana Salgado testified that, in June 2017, she and her boyfriend, Ismael, resided in a rented

single-family home on Grove Street in Aurora. During the evening of June 9 and the early morning

hours of June 10, 2017, friends gathered at their home to relax and socialize. Filiberto Martinez,

Victor Avitia, Rocha, Luis Gamboa, and Jose Cervantes all gathered at Salgado’s home. The

group congregated in the driveway, using the speakers on Rocha’s truck, a black Lincoln

Navigator, to play music while the group talked and drank, and some of the group smoked

cannabis. Salgado testified that, to her knowledge, none of her guests were in a gang, and nobody

there had a gun.

¶6 Shortly after midnight, Salgado was outside with the group, and Rocha was standing by his

truck. Other testimony suggested that the group had stopped smoking cannabis about an hour

1 Defendant’s pretrial motion practice did not produce any issues on appeal.

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before the incident. Two Hispanic men approached the group. Salgado described that both men

were wearing white shirts, and both had long hair. The man in front, later identified as Martin

Garcia, had gold lettering on his shirt and wore his hair in a “slicked-back ponytail.” The second

man, later identified as defendant, was standing “right behind” Garcia.

¶7 Garcia asked the group for a lighter. Salgado testified that she was confused by the request

because none of the group were smoking at the time. After being turned down, Garcia repeated

his request for a lighter. After another refusal, Garcia reached into his waistband while taking a

few steps backwards and asked, “What do [the group] be about?” Salgado testified that she

understood that Garcia was asking about any of the group’s gang affiliations. Salgado walked

backwards and hurried into the house. One of the men—Salgado could not identify whom—said,

“Drop the Ambro.”

¶8 Salgado testified that she made it into the house and looked outside. She saw Martinez

put his hands in the air and deny that any of the group were gang members. She saw Garcia shoot

five or six rounds at a fast rate of speed and believed that he was shooting down the street. Salgado

did not recall seeing defendant with a gun, but she told police in an interview shortly after the

shooting that Garcia had a small black gun that resembled a toy gun.

¶9 Salgado called 911. At the time she called, Ismael, Martinez, and Gamboa were inside her

house. A recording of the 911 call was played for the jury. During the call, Salgado was distraught,

crying and yelling for the police to come. She told the 911 operator that “they” walked up to the

group out of nowhere and asked for a lighter, and when her group said they did not have a lighter,

the men who walked up asked about the group’s gang affiliations, and the group denied any gang

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membership. Salgado related that she went back to the house and “all of a sudden they started

shooting.”

¶ 10 Salgado testified that, as she was making the 911 call, she looked outside and saw Rocha

lying on the ground. Salgado concluded her direct examination by stating that she would not be

able to identify either of the men who shot at her friends.

¶ 11 Martinez testified that, on the night and morning of June 9 and 10, 2017, he attended a get-

together at Salgado’s house, along with his brother, Avitia, and his cousin, Rocha. Most of the

group was outside when two men approached and one, whom Martinez later learned was Garcia,

asked for a lighter. The group said they did not have a lighter. Martinez testified that Garcia said,

“Really? You guys don’t have a lighter?” The group again responded that they did not have a

lighter. Martinez noted that defendant was behind Garcia, and when the group denied having a

lighter the second time, defendant backed down the driveway toward the street. Garcia then asked,

“What do [the group] be about?” Martinez understood Garcia to be asking what gang the group

belonged to. Martinez testified that, to his own knowledge, no one in the group belonged to a

gang, and nobody had a gun. Martinez identified defendant in open court as the man who was

backing toward the street.

¶ 12 Martinez testified that Garcia said, “Throw down Ambro.” Cervantes ran down the street

to Martinez’s right. Martinez and Rocha put up their hands and said they would not throw anything

down and they were not gang members. Martinez explained that he knew that the Ambrose were

a street gang and Garcia was telling them to disrespect the Ambrose street gang. Garcia and

defendant pulled out guns, and Garcia produced a small revolver and defendant had a “shiny” gun

that was not a revolver. Martinez estimated that Garcia was 5-10 feet from him when Garcia pulled

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out his gun, and defendant had backed up just into the street. Martinez saw defendant shoot two

shots toward the fleeing Cervantes, and he did not see defendant shoot at Rocha.

¶ 13 As the shooting started, Martinez turned and fled toward Salgado’s house. As he turned,

he saw Garcia shoot Rocha in the head. Martinez saw Rocha fall, and Martinez made it inside of

the house.

¶ 14 A bit later in the early morning of June 10, 2017, a police officer drove Martinez to view a

person the police had stopped nearby. Martinez told the officer that the person looked familiar

and resembled one of the shooters. Martinez explained that he did not make a positive

identification because the officer told him he had to be 100% sure of his identification. Martinez

further explained that he remembered one of the shooters had black buttons on the shirt, and since

he did not see those buttons on the individual at that time, he would not make an identification.

¶ 15 In the afternoon of June 10, the police presented Martinez with a photographic array.

Martinez identified Garcia as looking similar to one of the shooters. On cross-examination,

Martinez stated that he identified Garcia as the person who shot Rocha.

¶ 16 On August 15, 2017, police showed Martinez surveillance footage from a liquor store. The

footage was captured in the evening of June 9, 2017, and depicted two men with light or white

shirts. Martinez identified Garcia and defendant in the surveillance footage, and he identified them

as the shooters.

¶ 17 Avitia testified that he was Rocha’s cousin. Regarding the shooting, he testified that,

shortly after midnight, Garcia and defendant walked up the driveway and approached the group.

Avitia did not recognize defendant or Garcia. Garcia was walking in front of defendant and asked

for a lighter; the group told him nobody had a lighter. Garcia then pulled out a revolver and put it

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against Rocha’s head, saying, “Drop the Ambrose.” Avitia understood from school that Garcia

meant to “drop the gang sign.” Avitia related that neither he nor any in the group were gang

members, and none of the group had a gun that night. On cross-examination, Avitia denied that

the Rocha family belonged to the Insane Deuces street gang.

¶ 18 Avitia testified that, when Garcia drew his revolver, defendant backed up a little bit, but

remained in the driveway. Avitia observed that defendant drew a semiautomatic pistol and stopped

backing up while Garcia shot Rocha from about a foot away. Avitia testified that Garcia fired his

weapon about three times. On cross-examination, Avitia acknowledged that his testimony to the

grand jury differed from his trial testimony. Specifically, Avitia acknowledged that, in his

testimony to the grand jury, he stated that he saw Rocha fall to the ground after being shot in the

head, and he heard a total of six or seven gunshots. Avitia clarified the disparity, explaining that

he did not count the shots, which occurred very quickly, but he could tell that two different guns

were firing.

¶ 19 Avitia testified that he and the rest of the friends ran when the shooting started, and he

estimated that defendant fired seven or eight gunshots. Avitia saw defendant shoot towards him,

but he did not see defendant shoot at Cervantes. Avitia did not see where Cervantes ran. Avitia

ran toward the garage and, when he looked back, he saw Rocha fall. Avitia observed defendant

and Garcia run away. Avitia testified that he did not see Rocha or any of the group get into any

sort of fight with defendant and Garcia.

¶ 20 After the shooting, at about 12:38 a.m., June 10, 2017, Avitia spoke to police. He was

driven to view a show up and there, he identified defendant as the person in the driveway who was

shooting, not the person who shot Rocha. Avitia also identified defendant in open court. Avitia

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also identified Garcia in a photographic lineup that was conducted later at the police station. After

the shooting, Avitia remembered that he had seen defendant on Facebook, and he explained that

he was not Facebook friends with defendant but had been notified by Facebook that defendant may

have been someone Avitia may have known.

¶ 21 The evidence also showed that, after the shooting, Garcia was taken to a nearby hospital

with a gunshot wound to his abdomen. Garcia’s girlfriend took him to the emergency room.

Garcia had two wounds on his abdomen, and they appeared to be from a single gunshot, and the

gunshot traveled shallowly across Garcia’s abdomen, involving the skin and muscle of the

abdominal wall and none of the underlying organs.

¶ 22 Officer Ryan Blaskey of the Aurora Police Department testified that he drove Avitia to the

show-up identification of defendant. The jury was shown a recording of the show-up. Avitia

identified defendant at the show-up, stating that he was not the main shooter, but defendant was

the second shooter. Avitia related to Blaskey that defendant had a pistol, and the main shooter had

a revolver. Avitia told Blaskey that he was “two-hundred percent sure” of his identification of

defendant.

¶ 23 Officer Troy Kern of the Aurora Police Department testified that, at approximately 1:55

a.m. on June 10, 2017, he was in a squad car with Officer Matt Miracle canvassing the area around

the shooting. The officers observed a man walking out of a parking area in back of a house at 462

North Farnsworth, which was several blocks from the location of the shooting. The man matched

the description of one of the suspected shooters: white shirt, white pants, white shoes. Kern

observed the man walk to the adjacent 466 North Farnsworth apartment building and attempt to

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enter the front door, but the man was unable to open the front door of the apartment building. Kern

told Miracle to stop so they could speak to the man.

¶ 24 Kern approached the man and spoke with him, determining him to be defendant. Kern

searched defendant’s person which yielded no contraband, but he recovered two cell phones from

defendant. The officers discovered nothing of evidentiary value in the area. Kern and Miracle

then held defendant in that area for witness show-ups. Kern was informed that there had been a

positive identification, and defendant was taken to the police station.

¶ 25 Dr. Mitra Kalelkar, a forensic pathologist working as a medical examiner for Kane County,

testified that she performed the autopsy of Rocha. Kalelkar reported that toxicology testing

determined that Rocha had a blood-alcohol concentration of 0.072 and detected the presence of

cocaine and cocaine metabolites in Rocha’s blood. Rocha exhibited numerous bullet and bullet-

fragment wounds in his head, arm, chest, and abdomen. Kalelkar testified that Rocha had been

shot in the head, and that bullet entered around his left earlobe, traveled into his brain, and came

to rest inside the right side of his brain. Kalelkar termed this wound as fatal, describing that Rocha

would have died within minutes of receiving the wound, and perhaps as quickly as less than a

minute. Kalelkar also testified that Rocha had been shot in the left abdomen, with the bullet

perforating his left kidney and intestines, and coming to rest in Rocha’s right back, and this too

was termed as a fatal wound unless he received prompt surgical treatment to repair the damaged

kidney and intestines. Rocha was also shot in the right shoulder area with the bullet lodging in

Rocha’s body, but this wound was nonfatal. Kalelkar concluded that Rocha died from multiple

gunshot wounds. Kalelkar also noted a number of bullet fragments were embedded superficially

in Rocha’s chest, and she removed several of the fragments for analysis.

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¶ 26 Regarding the shoulder wound, Kalelkar testified that the bullet traveled from left to right

and front to back. The bullet was lodged within the muscles of Rocha’s shoulder, and Kalelkar

had to remove it. Kalelkar described the shoulder wound as a deep muscle wound, because the

bullet did not break any of Rocha’s arm bones. She testified that the bullet may have struck nerves

and blood vessels as it traveled into Rocha’s arm. While she believed that the wound would have

proved to be nonfatal (unless it was not treated and became infected), had Rocha lived, it would

have left a scar, both from the wound itself and the medical procedure to remove it.

¶ 27 Kalelkar was also shown pictures of the wounds to Garcia’s abdomen. The pictures

showed two bullet wounds, an entrance and exit wound. The wounds did not appear to have been

inflicted at close range because there was no visible stippling around the wounds. Kalelkar

cautioned that a shirt could have prevented stippling from occurring, so she could not definitively

determine whether Garcia’s abdominal wounds were due to a close-range gunshot.

¶ 28 Rebecca Jansen, a nurse, and Allen Bloom, a doctor, testified that they treated Garcia when

he came to the emergency room. They observed that Garcia had experienced two gunshot wounds

in his abdomen, above his navel. Bloom testified that it appeared that the two wounds were caused

by a single gunshot, with one being an entrance wound, and the other being an exit wound. Bloom

characterized Garcia’s abdominal wounds as a “very minor injury.”

¶ 29 Shawn McCleary, a police officer with the Aurora Police Department, testified that, on

June 10, 2017, he collected evidence and photographed the scene. He collected spent shell casings

at the scene. McCleary collected 12 9-millimeter shell casings fired from a semiautomatic gun.

Rocha’s black Navigator parked in the driveway had bullet holes in the rear tailgate. Three bullets

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were recovered from the Navigator. Subsequent testing determined that there were no latent

fingerprints on the shell casings.

¶ 30 Kenneth Heidemann, a police officer with the Chicago Police Department, testified that,

on November 24, 2017, he tried to effect a traffic stop of two individuals. During the ensuing

chase, a handgun was thrown from the fleeing car. The firearm was recovered, and testing

indicated it was potentially one of the weapons used in the Rocha murder.

¶ 31 Nicole Fundell, a forensic scientist specializing in firearm identification with the Illinois

State Police, testified that she examined the bullets, shell casings, and the firearm recovered in

November 2017 by Heidemann. Fundell explained that a semiautomatic firearm automatically

ejects the spent shell casing while a revolver retains the spent shell casings until it is manually

emptied. All 12 of the shell casings recovered at the scene were fired from the same 9-millimeter

Ruger pistol recovered in 2017 and which the eyewitnesses placed in defendant’s hand during

Rocha’s murder. Fundell testified that the bullets from Rocha’s head and abdomen were fired

from the same weapon, which was not the Ruger. These bullets could have been 9-millimeter, .38

caliber, or .357 caliber, and they were excluded from matching all other projectiles and bullet

fragments suitable for comparison recovered from Rocha and the scene. The bullet fragments

recovered from Rocha’s chest were not fired from the same firearm as the bullets recovered from

Rocha’s head and abdomen, but they were unsuitable for comparison and could not be matched

with or excluded from the other projectiles. Fundell testified that the bullet recovered from

Rocha’s shoulder was fired from defendant’s 9-millimeter Ruger pistol. Fundell also examined

the three bullets recovered from Rocha’s Navigator. Those three bullets were not fired from the

same weapon as the bullets recovered from Rocha’s head and abdomen. Two bullets were

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positively determined to have been fired from defendant’s 9-millimeter Ruger. The third bullet

was too damaged to determine whether it matched or was excluded from the same firearm as the

other bullets.

¶ 32 Christopher Coronado, a detective with the Aurora Police Department who specializes in

cell phone forensics, testified that he examined the two cell phones recovered from defendant when

defendant was arrested. Coronado testified that discovered that one of the phones contained calls

to or from a person identified as “Goon.” The record shows that “Goon” was Garcia’s nickname

among the Latin Kings. Coronado testified that, on June 10, 2017, between 12:58 a.m. and 1:39

a.m., defendant’s phone had dialed or received six calls to or from Garcia.

¶ 33 Joseph Raschke, a special agent with the FBI working in the cellular analysis survey team,

testified that he conducted an analysis of the cell towers defendant’s cell phones had utilized

beginning on June 9, 2017, at about 11 p.m., and continuing through June 10, 2017, until about 2

a.m. Raschke’s testimony established that, on June 9, defendant was in the vicinity of the

Salgado’s home at about 11 p.m. He continued in the vicinity of the shooting, the nearby hospital,

and the apartment building on Farnsworth where he was apprehended, making calls or text

messages about 35 times during the 3-hour period. During the time on June 10, 2017, between 1

and 2 a.m., defendant made the bulk of his calls or texts using the cell tower northwest of the

Farnsworth address at which he was apprehended.

¶ 34 Jeff Hahn, a sergeant with the Aurora Police Department, testified as an expert witness in

gang crime investigations and identifications. Hahn testified that defendant and Garcia were

members of the Latin Kings street gang. Defendant’s nickname was “Yolo,” and Garcia’s was

“Goon.” Defendant had multiple gang tattoos, including a five-pointed star and “Yolo” on his

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neck. At the time of the shooting, the Latin Kings were rivals with the Ambrose street gang. He

noted that, in 2015, Salgado’s home on Grove Street was associated with the Ambrose street gang.

According to Hahn, his review of the gang records kept by the Aurora Police Department did not

mention Rocha as being a member or associating with members or hangers-on of any of the local

street gangs. Hahn testified that, typically, a firearm used in a shooting would be disposed of by

selling it or throwing it into the Fox River. Hahn also confirmed that to “throw down” a gang sign

was to disrespect the gang.

¶ 35 The State rested its case and defendant moved for a directed verdict. Defendant argued

that the trial court should direct out the counts of first degree murder that alleged that defendant

personally discharged a firearm because the evidence showed that any shots fired by defendant did

not cause death, great bodily harm, or serious injury to Rocha. Defendant further argued that

Rocha was dead by the time he was shot in the shoulder, and no rational trier of fact could find

that the shoulder wound caused Rocha’s death. The trial court denied defendant’s motion.

¶ 36 Defendant chose not to testify. During defendant’s case, he presented witnesses who

testified regarding the investigation of the scene and witnesses’ prior statements. Defendant rested.

¶ 37 The trial court convened a jury instruction conference. During the conference, defendant

did not object to the firearm enhancement instructions or jury verdict forms. The instructions and

the verdict forms included language that “the defendant personally discharged a firearm that

proximately caused great bodily harm; permanent disfigurement; or death to another person.”

¶ 38 During closing argument, the State argued, pertinently to the issue here, that defendant was

accountable for Garcia’s conduct, and was thus accountable for the murder of Rocha. At the outset

of the initial discussion of defendant’s accountability, the State acknowledged that the jury could

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have been confused because the evidence clearly showed that Garcia had shot Rocha in the head,

and the gun linked to defendant shot Rocha in the shoulder. The State provided the jury with

examples and honed in on defendant’s and Garcia’s actions, noting that defendant “went with

[Garcia to the scene] with a loaded gun,” meaning that defendant was “agreeing to assist” Garcia

in the offense. Further, defendant “pull[ed] out a gun when [Garcia said], drop the Ambrose,” and

the biggest assistance was when defendant began “shooting too, he’s assisting [Garcia].” The State

concluded that, “even though [defendant’s] shot didn’t kill Rodolfo Rocha, he's just as guilty as

[Garcia], just as guilty.”

¶ 39 Turning to the firearm enhancement, the State explained that, while the offense of first

degree murder did not require the State to prove that defendant personally performed the act that

caused Rocha’s death, for the purpose of the firearm enhancement, the State was required to prove

beyond a reasonable doubt that defendant personally discharged a firearm that caused great bodily

harm, permanent disability, or death to another person. The State acknowledged that Garcia fired

the fatal shots to Rocha’s head and abdomen, and the State reemphasized that defendant bore the

legal responsibility for those gunshots. The State then turned to the actions defendant performed.

The State noted that the evidence showed that defendant fired the shot that wounded Rocha in the

shoulder. The State concluded that, while the jury would not be instructed with a definition of

great bodily harm, the evidence clearly demonstrated that defendant personally discharged a

firearm, one of the shots struck Rocha in the shoulder area, many of the other shots fragmented,

and those fragments were found in Rocha’s chest. Regarding great bodily injury, the State left the

jury with the final thought: “there’s a hole in [Rocha’s] arm with a bullet. That’s all I’m gonna

say about that.”

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¶ 40 Responding to the State’s argument, defendant argued that he was not present during the

shooting. Defendant also argued that the wound to Rocha’s shoulder amounted to a “flesh wound”

because Kalelkar’s photographic evidence did not indicate that she had to “cut it out” of Rocha’s

shoulder. Defendant further argued that the wound did not cause Rocha’s death and would not

have caused permanent disability.

¶ 41 In the rebuttal closing argument, the State argued the gunshot to defendant’s shoulder spun

him to the right, causing Rocha to present the left side of his body to Garcia. The State then argued

that fatal shots entered the left side of Rocha’s abdomen and left side of his head. The State argued

that the timing of the shots began with defendant’s shot that started the “multiple gunshot wounds

that caused death.” The State concluded that defendant, on his own volition in the offense, “shot

12 times, hitting Rudy Rocha, Martin Garcia, and the Navigator. His bullet was one of the bullets

that cause the death [of Rocha] due to multiple gunshot wounds. *** He did all of those things

when he chose to walk up to [Salgado’s house] that night.”

¶ 42 The trial court instructed the jury regarding the firearm enhancement according to the

instructions submitted during the jury-instruction conference. The pertinent language of the

instructions included, “defendant personally discharged a firearm that proximately caused great

bodily harm, permanent disfigurement, or death to another person.” The jury returned verdicts of

guilty on all counts, and it determined that the State had proven beyond a reasonable doubt all of

the firearm enhancements (personal discharge of a firearm causing great bodily harm, permanent

disfigurement, or death; personal discharge of a firearm; and personally armed with a firearm).

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¶ 43 Defendant, via counsel, filed two motions for a new trial. 2 The first was filed on March 1,

2022, but was withdrawn before hearing. The second was filed on March 3, 2022, and proceeded

to hearing. In the March 3, 2022, motion for new trial, defendant did not raise any issues related

to the jury instructions on the firearm enhancements. The court denied defendant’s motion for a

new trial.

¶ 44 On April 14, 2022, the trial court sentenced defendant to an aggregate 80-year prison term.

Defendant received a 60-year prison term for his first degree murder conviction (35 years plus the

25-year firearm enhancement; the sentence was imposed on count I and the remaining murder

counts were merged), consecutive to a 20-year prison term for armed violence (to be served at

85%), and a concurrent 10-year prison term for aggravated battery with a firearm.

¶ 45 Defendant timely appeals.

¶ 46 II. ANALYSIS

¶ 47 On appeal, defendant contends that his trial counsel provided ineffective assistance of

counsel. Specifically, defendant argues that counsel provided deficient performance by failing to

object to the instructions pertaining to the 25-year firearm enhancement, and in particular, to the

inclusion of “death” in the instruction. Defendant argues that he experienced prejudice arising

from the deficient performance because the evidence clearly demonstrated that defendant did not

cause Rocha’s death, and had “death” been omitted from the instructions, there is a reasonable

2 Defendant was represented by counsels from two separate law firms, and they each filed

a motion for new trial.

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probability that the jury would have determined that great bodily harm or permanent disfigurement

had not been proved beyond a reasonable doubt.

¶ 48 A. Ineffective Assistance and Standard of Review

¶ 49 A claim of ineffective assistance of counsel is considered according to the familiar test

from Strickland v. Washington, 466 U.S. 668 (1984). The defendant must first establish that

counsel’s performance fell below an objective standard of reasonableness under the prevailing

professional norms. People v. Hunt, 2016 IL App (2d) 140786, ¶ 51. In making this determination,

the defendant must first overcome the presumption that the challenged conduct was the product of

sound trial strategy. Id. Second, the defendant must establish that prejudice. Id. To establish

prejudice, the defendant must demonstrate that, absent counsel’s deficient performance, there is a

reasonable probability that the outcome of the proceeding would have been different. Id. A

“reasonable probability” for purposes of an ineffective assistance claim does not mean that a

different result is more likely than not, but the different result could have been reasonably returned.

People v. Saulsberry, 2021 IL App (2d) 181027, ¶ 111. The defendant must satisfy both elements

of the Strickland test; the failure to demonstrate either deficient performance or prejudice ends our

analysis and precludes a finding of ineffectiveness. Hunt, 2016 IL App (2d) 140786, ¶ 51. If, as

here, the claim of ineffective assistance was not raised before the trial court, we review the

contention de novo. Id.

¶ 50 The purpose of jury instructions is to provide the jury with the correct legal principles to

apply to the evidence to allow the jury to reach a proper conclusion according to the law and the

evidence. People v. McDaniel, 2021 IL App (2d) 190496, ¶ 53. Jury instructions, therefore,

should not be misleading or confusing. Id. Generally, Illinois Pattern Jury Instructions (IPI),

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Criminal, shall be given unless they do not accurately state the law. People v. Bustos, 2020 IL

App (2d) 170497, ¶ 97.

¶ 51 The failure to request a particular jury instruction may constitute ineffective assistance of

counsel if the instruction was so critical to the defense that its omission denied the defendant’s

right to a fair trial. People v. Grabow, 2022 IL App (2d) 210151, ¶ 21. In assessing whether the

failure to give a particular instruction deprived the defendant of a fair trial, a reviewing court

considers the totality of the circumstances to determine whether the defendant received a fair trial,

including all the jury instructions, the parties’ arguments, whether the evidence was overwhelming,

and any other relevant factors. Bustos, 2020 IL App (2d) 170497, ¶ 98. With these principles in

mind, we turn to defendant’s contentions.

¶ 52 B. Challenged Jury Instruction and Prejudice

¶ 53 Defendant argues that counsel was ineffective for failing to challenge the 25-year firearm

enhancement jury instructions. Specifically, defendant contends that the evidence did not support

the inclusion of the element “caused *** death to another person” in the 25-year firearm

enhancement jury instructions and verdict form. 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West Supp.

2017). Defendant reasons that, had death been off the table, there is a reasonable probability that

the jury would have determined that Rocha’s shoulder wound did not constitute great bodily harm

or permanent disfigurement. We disagree.

¶ 54 The term “great bodily harm” is not specifically defined. People v. Mimes, 2014 IL App

(1st) 082747-B, ¶ 29. However, it requires some injury of a greater and more serious nature than

the injury accompanying ordinary battery. Id. In an ordinary battery, bodily harm requires some

sort of physical pain or damage to the body, like cuts, bruises, or scrapes. Id. For an injury to

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constitute great bodily harm, we must consider the victim’s actual injuries, and the determination

is not dependent upon the victim’s hospitalization or the permanency of his or her disfigurement

or disability resulting from the injuries. Id. Moreover, a gunshot wound does not necessarily

constitute great bodily harm. Id. ¶ 32; see also People v. Ruiz, 312 Ill. App. 3d 49, 62-63 (2000)

(gunshot wound to a police officer’s knee did not constitute great bodily harm where the wound

was barely visible on the day of the incident and the police officer did not immediately seek

medical treatment); People v. Durham, 303 Ill. App. 3d 763, 770 (1999), vacated, 186 Ill. 2d 575

(table) (gunshot wound did not constitute great bodily harm where the evidence described it as a

mark, small nick, or a cut and required no medical attention). However, instances where the bullet

entered and lodged within the body have been uniformly deemed to constitute great bodily harm.

People v. Reed, 2018 IL App (1st) 160609, ¶ 48 (bullet struck victim’s right little finger and entered

his right side, causing bleeding, and bullet remained in victim’s body four years after the incident);

People v. Daniels, 2016 IL App (4th) 140131, ¶ 103 (great bodily harm where a bullet enters and

lodges in the victim’s body).

¶ 55 Here, the bullet from defendant’s gun entered and remained in Rocha’s shoulder. Kalelkar

described the wound: “[the bullet] perforates the skin and muscles of the area. It courses

superficially through the muscles of the arm.” Kalelkar explained that the term, “superficially,”

referred to the wound being “a muscle deep wound. [The bullet] did not strike bone,” although it

may have struck nerves and blood vessels located in the area of the wound. Further, Kalelkar

testified that, had Rocha lived, a surgical procedure would have been required to extract the bullet.

¶ 56 Although “great bodily harm” would not have been specifically defined for the jury, the

wound to Rocha’s shoulder clearly constituted great bodily harm. The bullet entered and remained

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lodged in Rocha’s arm. Reed, 2018 IL App (1st) 160609, ¶ 48; Daniels, 2016 IL App (4th) 140131,

¶ 103. There is no reasonable possibility that a jury would have determined that the wound to

Rocha’s shoulder did not constitute “great bodily harm,” thus satisfying the disputed element of

the 25-year firearm enhancement. Because there is no reasonable possibility that the jury would

have determined that defendant had not caused great bodily harm, there can be no prejudice

accruing from the challenged jury instructions. Because there is no prejudice, defendant’s claim

of ineffective assistance of trial counsel fails. Hunt, 2016 IL App (2d) 140786, ¶ 51.

¶ 57 Defendant cites Mimes, 2014 IL App (1st) 082747-B, ¶ 32, for the proposition that a

gunshot wound does not necessarily equate to great bodily harm. Mimes is inapposite, however,

as the question presented in that case was whether the State had adequately alleged in the

indictment that the defendant had personally discharged a firearm that caused great bodily harm

to the victim. Id. ¶ 24. The appellate court expressly recognized that the defendant’s “challenge

on appeal is limited to the issue of notice; he does not assert that the alleged facts that he fired the

gun that caused [the victim] great bodily harm were neither submitted to the fact finder nor proven

beyond a reasonable doubt.” Id. 27. Indeed, the evidence showed that the victim was shot twice

in the back, was paralyzed due to a spinal cord injury from the gunshots, and had both legs

amputated because of the shooting. Id. ¶¶ 7-8. Thus, the facts of Mimes show that the victim’s

gunshot wounds constituted great bodily harm.

¶ 58 To the extent that defendant is relying on the underlying cases supporting the proposition

that a gunshot wound does not necessarily constitute great bodily harm, they are distinguishable.

In Ruiz, the victim felt a sharp pain in his knee and later realized he had been struck by a bullet.

Ruiz, 312 Ill. App. 3d at 63. The victim did not immediately seek medical treatment, instead, he

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went to a meeting. Id. Finally, the wound itself was barely visible in a photograph taken on the

day the victim was struck by the bullet. Id. The court held that the gunshot wound did not

constitute great bodily harm. Id. Here, by contrast, the bullet fired by defendant that struck Rocha

in the shoulder entered his body, was a deep wound affecting Rocha’s shoulder muscles, and the

bullet remained in Rocha’s shoulder. Further, had Rocha not succumbed to his other injuries, an

extraction of the bullet could have been accomplished only through a surgical procedure. Ruiz is

factually distinct.

¶ 59 Mimes also cited Durham, 303 Ill. App. 3d at 770. However, the version of Durham cited

in Mimes was vacated by order of our supreme court. People v. Durham, 186 Ill. 2d 575 (table).

This court filed a new opinion in People v. Durham, 312 Ill. App. 3d 413 (2000). We held that

the victim’s gunshot wound did not constitute great bodily harm because it caused only a mark on

the victim, like a small nick or cut and was evidently only a graze wound. Id. at 421. In this case,

by contrast, Rocha’s shoulder wound was not a graze wound or a nick or small cut; the bullet

entered his body and lodged in the shoulder area. Removal of the bullet would have required a

surgical procedure. Durham, therefore, is also factually distinct.

¶ 60 Defendant also argues that there was evidence that Rocha collapsed and died before he was

shot in the shoulder. Defendant reasons that great bodily harm cannot be committed upon a corpse.

People v. Crane, 196 Ill. App. 3d 264, 270 (1990) (“[o]ne cannot have knowledge that his actions

threatened death or great bodily harm to a corpse”), affirmed 145 Ill. 2d 520, 527-28 (1991)

(defendant’s belief that victim was dead before defendant burned the victim negated any intent to

cause the victim great bodily harm). Defendant suggests that “since it has been determined that

one cannot know or intend great bodily harm to a dead person then there is a reasonable probability

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that at least one of the jurors here would have decided that Rocha was dead at the time he was shot

in the shoulder.” We disagree.

¶ 61 Defendant’s contention is rooted in a careful misreading of Kalelkar’s testimony. Kalelkar

testified that, “with the gunshot wound to the head, [Rocha] would have died immediately.”

Defendant seizes upon “immediately” to support his argument that he was dead or “essentially”

dead when defendant shot him in the shoulder without providing the full context of Kalelkar’s

testimony. Kalelkar immediately (in the sense that this was the very next thing she said) elaborated

on what she meant by the term, “immediately,” explaining, “I wouldn’t say instantaneously but

within minutes.” Thus, Kalelkar’s direct testimony established that the gunshot to Rocha’s head

was fatal, causing him to expire “within minutes” but not “instantaneously.” Defendant’s

argument is entirely premised on the misapprehension that “immediately” is synonymous with

“instantaneously,” despite Kalelkar’s immediate (meaning the very next thing to which she

testified) clarification that she did not mean “instantaneously.”

¶ 62 On cross-examination, Kalelkar testified that Rocha’s death from the gunshot to his head

could have occurred within a few minutes. She further agreed that it could have been “less than a

minute,” and she continued to agree with defendant’s question that his “death would be not

instantaneous.” Kalelkar also refused to agree on cross-examination with defendant’s question

that Rocha died within seconds after sustaining the gunshot to his head, maintaining her position

and stating that Rocha “would not have lived long.”

¶ 63 Defendant’s argument is based on truncating Kalelkar’s full testimony and disregarding

how she herself clarified that testimony. We therefore reject the contention.

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¶ 64 We also note that the evidence adduced showed that Garcia and defendant were both

shooting their firearms at the same time. The witnesses attempted to render a linear narrative about

the jumbled, chaotic, and simultaneous event. There was no testimony that defendant began

shooting a minute or minutes after Garcia had opened fire (which would have been necessary to

sustain his argument that Rocha was deceased when defendant shot Rocha in the shoulder).

Further, the evidence suggests that Rocha was shot in the right shoulder, spinning him to the right

and presenting the left side of his head to Garcia, at which point Garcia delivered the fatal gunshots

to the left side of Rocha’s head and body. Thus, the physical evidence also tends to refute the idea

that Rocha was dead or essentially dead when defendant shot him in the shoulder. Indeed,

defendant could plausibly argue, based on the historical facts and the semantics of choice and

cause and effect, that Rocha was essentially dead when defendant and Garcia approached the

group. In other words, defendant’s “essentially dead” claim is literally meaningless—the evidence

suggests at most that Rocha was dying but not yet dead when he sustained defendant’s gunshot to

his shoulder. We reject defendant’s contention.

¶ 65 Defendant argues that he established prejudice because it is reasonably probable that one

juror would have determined either that the gunshot wound to Rocha’s shoulder did not constitute

great bodily harm or that Rocha was already dead when he sustained his shoulder wound.

Defendant argues that, so long as the odds of a different outcome are “better than negligible,” he

has sustained his burden of establishing prejudice, relying on Canaan v. McBride, 395 F.3d 376,

386 (7th Cir. 2005), and People v. Miller, 2013 IL App (1st) 110879, ¶ 85, quoting People v.

McCarter, 385 Ill. App. 3d 919, 935 (2008) (“ ‘[P]rejudice may be found even when the chance

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that minimally competent counsel would have won acquittal is significantly less than 50

percent.’ ”). We disagree.

¶ 66 As an initial matter, we note that decisions of the lower federal courts do not constitute

binding authority in Illinois courts. People v. Kidd, 129 Ill. 2d 432, 457 (1989). Moreover, resort

to foreign authority is appropriate when no Illinois authority exists. People v. Bensen, 2017 IL

App (2d) 150085, ¶ 30. Manifestly, abundant Illinois authority explaining prejudice in the context

of an ineffective-assistance claim exists and has long existed. E.g., Saulsberry, 2021 IL App (2d)

181027, ¶ 111; McCarter, 385 Ill. App. 3d at 935.

¶ 67 Defendant apparently cites Canaan, 395 F.3d at 386, for the proposition that prejudice in

the ineffective assistance context equates to a non-negligible chance of a different outcome.

Further, defendant implies that an eight percent chance (1 juror in 12) satisfies Canaan. Canaan

itself does not attempt such quantification, either overtly or through implication. Instead, Canaan

dealt with whether the failure to present any mitigation evidence in a death penalty sentencing

hearing constituted prejudice where the mitigation evidence existed, and the State had presented

evidence in aggravation to support the imposition of the death penalty. Id. Here, the question is

whether a reasonable juror could have found either that Rocha’s shoulder wound did not constitute

great bodily harm or that Rocha was already dead at the time he sustained his shoulder wound. As

we have explained, neither conclusion is sustainable based on the evidence presented at trial. Thus,

the chance of a different outcome, in the terms employed by Canaan, is negligible, and defendant

has failed to demonstrate prejudice.

¶ 68 We also note that defendant cites Miller, 2013 IL App (1st) 110879, ¶ 85, in support of the

Illinois standard that prejudice may be demonstrated even where the chance of a different outcome

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is significantly less than 50 percent. In turn, Miller relied on McCarter, 385 Ill. App. 3d at 935,

which qualified the “significantly less than 50 percent” language with “as long as a verdict of not

guilty would be reasonable.” Thus, Illinois authority focuses not solely on the percentage of the

probability that a different result could have occurred, but on whether that different result would

be reasonable. Id. Here, as we have explained, Illinois authority has consistently deemed a

gunshot wound in which the bullet enters and lodges in the victim’s body to constitute great bodily

harm. E.g., Daniels, 2016 IL App (4th) 140131, ¶ 103. Thus, the different result, namely, a

determination that Rocha’s shoulder wound did not constitute great bodily harm, could not have

been reasonably returned. Saulsberry, 2021 IL App (2d) 181027, ¶ 111 (explaining that a

demonstration of prejudice requires showing that the different result could have been reasonably

returned).

¶ 69 Similarly, the evidence strongly suggests that, in the brief timeframe of the gunfire from

Garcia and defendant, Rocha was not dead at the time he was shot in the shoulder. Kalelkar

testified that Rocha would not have died instantaneously upon receiving the gunshot to the head,

but it would have taken some period of time. Further, the evidence suggests that the gunshot to

Rocha’s right shoulder caused him to turn to his right, thereby presenting the left side of his body

to Garcia, whereupon he received the fatal gunshots. Only by disregarding this evidence entirely

could the jury have reached a different result, and such a result would not have been reasonable.

Accordingly, we reject defendant’s claim that he established prejudice.

¶ 70 Because of our resolution of the issue of whether Rocha’s shoulder wound constituted great

bodily harm, we need not address defendant’s remaining contentions about permanent

disfigurement. Likewise, because we have determined there is no prejudice accruing from the

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alleged error in the 25-year firearm enhancement jury instructions, we need not consider whether

that performance was deficient. Accordingly, we hold that trial counsel did not provide ineffective

assistance, and we affirm defendant’s sentence.

¶ 71 III. CONCLUSION

¶ 72 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.

¶ 73 Affirmed.

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