2025 IL App (4th) 240828-U NOTICE FILED This Order was filed under August 27, 2025 NO. 4-24-0828 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate IN THE APPELLATE COURT limited circumstances allowed Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County TERRANCE NELSON, ) No. 23CF650 Defendant-Appellant. ) ) Honorable ) William A. Yoder, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Presiding Justice Harris and Justice Vancil concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s conviction and sentence.
¶2 In July 2023, the State charged defendant, Terrance Nelson, by indictment with
two counts of unlawful possession of a weapon by a felon (UPWF) (720 ILCS 5/24-1.1(a) (West
2022)), alleging that on June 30, 2023, defendant possessed a firearm and had been previously
convicted of (1) aggravated battery in 2013, a Class 2 felony (count I), and (2) unlawful delivery
of a controlled substance within 1,000 feet of a church in 2015, a Class 1 felony (count II). In
December 2023, a jury found defendant guilty of one count of UPWF. Later, the trial court
sentenced defendant to nine years in prison.
¶3 Defendant appeals, arguing the trial court abused its discretion by (1) refusing to
instruct the jury on the necessity defense and (2) imposing an excessive prison sentence. We
affirm. ¶4 I. BACKGROUND
¶5 A. The Charges
¶6 In July 2023, the State charged defendant by indictment with two counts of
UPWF (id.), alleging that, on June 30, 2023, defendant possessed a firearm and had been
previously convicted of (1) aggravated battery in 2013, a Class 2 felony (count I), and
(2) unlawful delivery of a controlled substance within 1,000 feet of a church in 2015, a Class 1
felony (count II).
¶7 B. The Jury Trial
¶8 In December 2023, the trial court conducted defendant’s jury trial.
¶9 1. Summary of the Evening of the Offense
¶ 10 On June 30, 2023, around 8 p.m., defendant’s former partner, Tanisha Moon,
arrived at defendant’s apartment at 1917 Tracy Drive in Bloomington, Illinois, to drop off their
three children for a visit. Defendant lived with his brother, Michael Frazier, who was not present
at the time. After Moon arrived and the children entered the apartment, she and defendant
engaged in a physical altercation that resulted in minor injuries to both parties. Once Moon left,
defendant immediately called the police to report the altercation.
¶ 11 Bloomington police officers Bryan McCall and Jaime Tabeling arrived at the
apartment shortly thereafter. They interviewed defendant and photographed his injuries, which
included a bleeding scalp where hair had been pulled out. The officers recorded this interaction
on their body cameras. Afterward, they attempted to contact Moon but could not reach her. After
speaking with the police, defendant left the apartment with his children to stay at his cousin’s
house because he feared for his safety.
¶ 12 Later that evening, around 11 p.m., Moon returned to the apartment. Frazier had
-2- returned and was present with his girlfriend, Paige Brown. Frazier contacted defendant and told
him that Moon was outside the apartment, causing a disturbance. Defendant returned to the
apartment, leaving his children in a neighbor’s care. To avoid confronting Moon in the hallway
outside the apartment door, defendant climbed through one of the apartment windows from the
second-floor deck. According to defendant, Frazier and Brown urged him to handle the situation
with Moon. Defendant then borrowed Brown’s loaded handgun and opened the apartment door.
Standing in the doorway, he announced to Moon, “No, I’m right here. I’m right here. Y’all
know,” while holding the handgun with the barrel pointed downward. Moon filmed the brief
interaction using her cell phone. Defendant then placed the gun behind his back and returned
inside the apartment, closing the door.
¶ 13 Defendant returned the handgun to Brown, and Frazier called police. Four
Bloomington police officers responded to the call: Officers (1) McCall, (2) Tabeling,
(3) Brennan Burns, and (4) Logan Fosdick. The officers spoke with Frazier, Brown, Moon, and
defendant and then arrested defendant after viewing the video Moon had taken that showed
defendant holding a handgun. The officers also secured Brown’s handgun. The officers recorded
these interactions on their body cameras.
¶ 14 2. Tanisha Moon
¶ 15 Moon testified that she had known defendant for over a decade and had three
children with him, ages 10, 8, and 4. Their relationship ended approximately two years before
the events at issue.
¶ 16 On the evening of June 30, 2023, Moon dropped the children off at Frazier’s
apartment. Moon testified that although this was not a scheduled visit, she had communicated her
intention to bring the children over. She acknowledged that they had not agreed on a particular
-3- length of visit and that she and defendant had an altercation when she dropped the children off.
Later that evening, defendant contacted Moon and told her that if she did not return to pick up
the children, he would drop them off elsewhere.
¶ 17 Around 11 p.m., Moon returned to the apartment to pick up the children. She
encountered defendant while standing in the upstairs hallway outside Frazier’s apartment.
Defendant held a black handgun with either a pink or “rose gold” color on the side. Moon
recorded the incident using her cell phone and showed the video to responding Bloomington
police officers that night.
¶ 18 The trial court admitted the three-second video into evidence and published it to
the jury. In the video, defendant can be seen standing in the vestibule of the apartment, shouting,
“No, I’m right here. I’m right here. Y’all know,” while holding a firearm in his right hand with
the barrel pointed downward. He then moved his right hand behind his back, transferred the
firearm to his left hand, and walked back inside the apartment.
¶ 19 On cross-examination, defense counsel asked Moon about an incident on
November 15, 2022, involving Frazier calling the police to his apartment because Moon attacked
him. She testified, “I’m not sure about that. All I know is I was told he had smacked my son in
the face because he thought he broke something of his. I wasn’t there, and so he smacked my
son.” Moon stated that when she contacted defendant about Frazier’s conduct, he told her he had
“handled it,” which she understood to mean that defendant had physically confronted Frazier.
¶ 20 Defense counsel also asked Moon about a prior incident involving defendant that
occurred on May 5, 2023, outside a convenience store. Moon acknowledged the incident and
testified that defendant sustained a cut when he grabbed a razor blade from her hand. She
explained that she carried the razor blade for personal protection, particularly because she was
-4- often alone with her children. Moon denied cutting defendant intentionally and testified that
defendant had struck her during the incident, prompting her to retrieve the blade. Moon testified
that she and defendant spoke with police officers following the incident but that no one was
arrested.
¶ 21 3. Police Officers’ Testimony
¶ 22 Four Bloomington Police Department officers testified about the events of June
30, 2023—namely, Officers (1) McCall, (2) Tabeling, (3) Burns, and (4) Fosdick.
¶ 23 Officer McCall testified that at around 10 p.m., he responded to a call from 1917
Tracy Drive after receiving “multiple calls suggesting that there was an argument, or some kind
of altercation, a fight. And then one caller stated there was a gun involved.” When he arrived, he
spoke with Moon, who was one of the callers. He described her as “emotional and frantic” and
said he had difficulty understanding her. He also spoke with defendant, noting that defendant and
Moon had been in a dating relationship for about 9 to 10 years.
¶ 24 Moon showed McCall the video she had recorded on her cell phone of defendant
standing outside the apartment door holding a handgun and then returning inside. McCall
identified the weapon he observed in the video as “a black GLOCK 43, 9mm compact handgun.
It had a rose gold slide on the top of it,” and there was “a round in the chamber, and there was,
[he believed], four rounds in the magazine.”
¶ 25 Officer Tabeling testified that at around 11 p.m., she responded to the report of an
armed individual at the same address. When she arrived, McCall was already on the scene. She
spoke with defendant and Brown. Brown gave Tabeling her handgun, and Officer Burns then
secured the weapon. Tabeling’s body camera recorded her conversations with both Brown and
defendant; the trial court admitted these videos into evidence, and they were played for the jury.
-5- ¶ 26 Officer Burns testified that when he arrived at the apartment, Tabeling had
already recovered a handgun from Brown. She handed the gun to him, and he secured it in
McCall’s squad car. Burns identified the weapon as a 9-millimeter Glock 43.
¶ 27 Officer Fosdick testified that he also responded to the apartment. When he
arrived, he spoke with Brown, who told him that she was inside the apartment when defendant
called the police. Fosdick explained as follows: “We had received a call from [defendant] saying
that there was a female in his—ex who was back on scene from a previous issue that they had
had.” Brown told Fosdick that she had a handgun, and their conversation was recorded on his
body camera. The trial court admitted that video into evidence and played it for the jury. Fosdick
was the last officer to speak with Brown and remained on the scene with Moon because they
were trying to locate her children, which took several hours.
¶ 28 Based on his investigation, McCall arrested defendant after viewing Moon’s
video.
¶ 29 On cross-examination, Tabeling and McCall testified about their earlier visit to
the apartment that evening. McCall explained that he had responded at around 8 p.m. because
defendant called 911 stating that Moon had attacked him. He photographed defendant and the
injuries he sustained, which the trial court admitted into evidence. One photo showed “[s]ome
sort of cut” on the top of defendant’s head. Tabeling confirmed that she accompanied McCall on
this earlier call and that the police arrested no one in connection with the injuries defendant
received.
¶ 30 McCall testified that he had made several attempts to contact Moon before the
second incident, stating as follows:
“I had made several attempts to talk to her before this second incident took
-6- place. I had gone to her residence to try to speak to her. I called her multiple times
on her phone and was unable to make contact with her until she called us for this
incident. At that point I was able to speak to her about this incident she called
about, and the previous incident [defendant] called about.”
¶ 31 When Moon spoke with McCall, she admitted to McCall that she hit defendant in
self-defense earlier that night and had a cut on the inside of her lip, which McCall photographed.
He described the injury as “a small, like, scratch you can see here, a specific area of redness on
her lips—I’m sorry, on her lower lip.” The trial court admitted these photographs into evidence.
¶ 32 The State called Officer Fosdick as a rebuttal witness regarding his response to
the later incident at 1917 Tracy Drive on June 30, 2023. He testified that while on the scene, he
spoke with defendant, who told him that Moon came back to Frazier’s apartment while he was
away and that Frazier had texted defendant that Moon had returned with “a couple dudes.” So,
defendant returned to the apartment. Fosdick asked defendant if there had been any physical
altercation when he went out the front door of the apartment. Defendant said nothing physical
occurred. He said that he saw Moon, walked back inside the apartment, and locked the door.
¶ 33 Fosdick’s body camera recorded his conversation with defendant, and the trial
court admitted the recording into evidence and played it for the jury. During this conversation,
Fosdick learned over the radio that other officers had viewed a video of defendant possessing a
gun. After learning this, Fosdick arrested defendant.
¶ 34 4. Stipulation
¶ 35 The trial court read the following stipulation regarding defendant’s previous
felony convictions:
“The People of the State of Illinois by Assistant State’s Attorney Emily Young,
-7- and the defendant, ***, by and through his counsel Matthew Koetters stipulate to
the following facts and evidence. That prior to the offenses of [UPWF] alleged in
this case, the defendant, ***, was convicted of the qualifying felony offenses
alleged regarding those offenses. That’s signed by each of the parties.”
¶ 36 5. Frazier
¶ 37 Frazier testified that he was defendant’s brother and had lived at 1917 Tracy
Drive for almost a year. Frazier testified as follows regarding the events on the evening of June
30, 2023:
“Early I was sitting with my girlfriend. I got a call from my brother. I’m not sure
what time it was. He was telling me about how him and [Moon] were getting into
it again or whatever happened. She must have—he was at the store. He
something, like, that he got into it earlier. I’m, like, okay. Cool. I hadn’t talked to
him none that day after that. So, I’m on my way. I go home. I go to my apartment,
which is on Tracy. I come in the door, I see [Moon] on the stairway. I don’t know
why she there. You know what I’m saying. She not ’pose to be around me. That’s
what I thought after this situation. So I don’t know. At this point I’m nervous. I
don’t know what she’s gonna do. I call him, she in my hallway. I don’t know
what is going on. At this point I’m, like, she outside the hallway making noise,
banging on the wall, banging on my door, acting belligerent, ’cause she looking
for him, waiting for him to come back. He not coming back. He not coming
nowhere around. So I was, like, man. I called the police.”
¶ 38 Moon never entered the apartment while Frazier was present. Brown was in the
apartment with him, and he called 911, stating, “They in my hallway. I’m scared. I know she
-8- damaged. They need to come get her. That’s why I called. Come get the lady from my hallway.”
¶ 39 Regarding the events of November 15, 2022, Frazier testified that at around 3
p.m., Moon came to his “baby momma’s apartment,” and the following occurred:
“She came to my—knocked on the door, I answered—I guess she was looking for
him. I opened the door, I get a punch to the face. They came in the house. It was
two of them. She brought somebody with her. Beat me in front of my kids. I don’t
know what for, but she put her hands on me. And then she—they jumped me for
no reason.”
¶ 40 After Moon and her companion left, he called the police. When they arrived they
questioned Frazier and took photographs of his injuries. The trial court admitted these photos
into evidence. One photo showed Frazier’s busted lip. Another showed hair ripped out on top of
his head. He had a big bruise on his arm, which he claimed was from “getting stomped on the
floor.” Frazier told officers that Moon and an unknown man came over because of an accusation
that he had slapped her son. He had no idea who the man was and did not know if he told officers
at the time that he knew who the man was. After officers left, no one contacted him again or told
him of any arrest.
¶ 41 On cross-examination, Frazier acknowledged that he had several felony
convictions: (1) a 2011 Class 4 felony for unlawful use of a weapon in McLean County, (2) a
2014 Class 1 felony for unlawful delivery of a controlled substance on park property, (3) a 2014
Class X felony for possession of a controlled substance with intent to deliver, and (4) a 2023
Class 4 felony for aggravated driving under the influence in McLean County.
¶ 42 He also acknowledged that he made no statement to officers on June 30, 2023,
when they arrived and never attempted to contact police officers after that night. His testimony at
-9- trial was the first time he provided information about that date.
¶ 43 Frazier testified that he never saw Moon in the hallway or having contact with
defendant on June 30, 2023. Moon never touched Frazier that night.
¶ 44 Frazier admitted that while the video of Brown’s statements was being played in
court, he was standing in the courthouse hallway near the door to the courtroom. However,
Frazier stated that nothing he heard from the courtroom affected his own testimony.
¶ 45 6. McCall (Recalled)
¶ 46 McCall testified that while waiting to testify outside the courtroom in the hallway,
he observed Frazier standing at the door to the courtroom while officers played body camera
footage of Fosdick speaking with Brown. Someone then came out and told Frazier he was not
allowed to stand there and could not listen to testimony. Frazier then sat in the chair closest to
the door.
¶ 47 7. Defendant
¶ 48 Defendant testified that he was 33 years old and lived with his brother, Frazier.
He had been together with Moon for nearly 10 years.
¶ 49 Regarding the evening of June 30, 2023, defendant testified that Moon texted him
that she needed money for rent, so he electronically sent her $360 at around 5 or 6 p.m. They
texted back and forth, and eventually, he heard a knock on the apartment door. He opened the
door to see his children, whom Moon had dropped off without any forewarning. Defendant
texted Moon to tell her that he had a new girlfriend who was pregnant and Moon responded that
he was “going to get it.” He went out into the hallway of the apartment building, leaving the door
unlocked.
¶ 50 When defendant returned, Moon was standing inside the apartment. She
- 10 - confronted him about having a new child on the way and then attacked him by pulling his hair
out, hitting him, and biting him. He forced her out of the apartment, closed the door, and then
called the police. Two police officers arrived between 20 and 30 minutes later. He showed the
officers the text messages and told them about what had happened. Defendant recounted the
following exchange:
“[The police officer] said I’m going to ask you five questions. And I said okay.
Do you fear for your life? Yes. Do you think [Moon’s] going to come back? Yes,
she’s going to come back. She’s definitely going to come back. Do you feel she’s
going to bring harm to you? Yes, I do. Do you think she’s going to bring other
people? Yes. And the last one was: Do you think she’s capable of killing you? I
told them, yes. I said, yes. It’s ongoing. I kept getting away from her. Even when I
try to get away she still follows me.”
¶ 51 Defendant mentioned getting an order of protection. One of the officers told him
that he would have to wait for Monday “to do a report.” The officer mentioned ways for
defendant to go about getting an order of protection. The officers took photos of defendant’s
head injury, which were admitted into evidence and shown to the jury.
¶ 52 After the officers left the apartment, defendant took his children to his cousin’s
house, which was 10 to 15 minutes away, so they could all be somewhere safe. He was there for
about 30 to 45 minutes when Moon texted him, asking where he went. Frazier then called
defendant and told him that Moon was outside the apartment, kicking the door; Frazier told
defendant that if he did not handle the situation, he would no longer be able to stay with him.
¶ 53 Defendant asked his cousin to watch the children and returned to Frazier’s
apartment. When he arrived, he climbed into the second-floor apartment through a window.
- 11 - Defendant explained that he wanted to avoid getting “killed” by entering through the stairwell
where Moon was.
¶ 54 Once he was inside, Frazier and Brown told defendant that he had to deal with
Moon because they were afraid to confront her. Brown gave defendant her gun. He opened the
door, walked out, and announced to Moon that he was “right here.” He did not point the gun at
her or threaten her with it. He was aware that Moon filmed him with her cell phone.
¶ 55 Once he saw that Moon had no one with her, he went back inside and shut the
door. He then told his brother to call the police, which Frazier did. Moon continued to bang on
the door of the apartment while defendant waited for police officers to arrive. He was not
thinking beyond ensuring that he was safe and there were no men outside the apartment. He then
gave Brown her gun back.
¶ 56 Defendant testified that he came back to the apartment when Frazier called
because it was not his brother’s situation to take care of; it was his “as a man.” He went back to
make sure that his brother and a family member were safe. Defendant explained that he snuck
into the apartment through the window because he did not want to have any type of conflict with
Moon. Officers Tabeling and McCall arrived thereafter in response to the call. Defendant
testified that he first told them that he did not possess a firearm because he did not want to go to
jail since he was a felon.
¶ 57 Regarding the May 5, 2023, incident at the convenience store, defendant testified
that Moon had called and asked him to meet her at a convenience store because she wanted to
talk. So, he walked to the store to meet her and his children in the store parking lot. He told her
that they were “done,” and she began to cry. She asked defendant if she could get his Link card,
which he gave her by tossing it onto the seat of her car, causing her to become upset. Moon then
- 12 - attacked him, stating, “You think you’re bigger than me.” He could tell she had been drinking,
and he pushed her away without hitting her. She then threw multiple glass bottles at defendant
and grabbed a knife from her car. He attempted to take the knife from her, and she cut his hand.
During this time, the store owner called the police. Moon drove away, and defendant waited for
police officers to arrive. The officers spoke with defendant and took photos of his injuries. These
photos were admitted into evidence and shown to the jury. No arrests were made in connection
with this incident.
¶ 58 8. Defendant’s Prior Convictions
¶ 59 At the State’s request, the trial court recited to the jury defendant’s prior
convictions for the purpose of impeachment. The court stated as follows:
“Thank you. Ladies and gentlemen, the defendant in this case, on August
21st—strike that—on July 30th of 2013, was previously convicted in McLean
County case 13-CF-665, of the Class 3 felony offense of aggravated battery. In
addition, on July 30th of 2013, the defendant was convicted in McLean County
case 13-CF-768 for the Class 4 felony offense of unlawful delivery of cannabis. In
addition, ladies and gentlemen, on December 11th of 2013, the defendant was
convicted in McLean County case 13-CF-1174 for the Class 4 felony offense of
possession of a controlled substance. And on August 21st of 2015, the defendant
was convicted in McLean County case 14-CF-1205 for the Class 1 felony offense
of unlawful delivery of a controlled substance.
Ordinarily, evidence of a defendant’s prior conviction of an offense may
be considered by you only as it may affect his believability as a witness, and must
not be considered by you as evidence of his guilt of the offense of which he was
- 13 - charged. However, in this case, because the State must prove beyond a reasonable
doubt the proposition that the defendant has previously been convicted of a
qualifying offense—a qualifying felony offense, you may also consider the
defendant’s prior conviction of the qualifying felony offense for the purpose of
determining whether the State has proved that proposition.”
¶ 60 9. Jury Instruction Conference
¶ 61 Defense counsel asked the trial court to give the jury instruction for necessity,
arguing that (1) Moon “had already used a weapon against” defendant in May 2023 and (2) on
June 30, 2023, defendant “didn’t have any understanding of what was on the other side of that
door and felt that this was the only way to resolve that situation.” Counsel explained that
defendant did not instigate the incident and returned only at his brother’s urging. Given the past
history of violence between defendant and Moon, he reasonably believed that arming himself
with a gun was necessary to protect himself and his brother.
¶ 62 The State argued that defendant failed to show any evidence in support of the
necessity defense—namely, that he (1) was without blame in occasioning or developing the
situation and (2) reasonably believed that his conduct was necessary to avoid a greater public or
private injury than that which might reasonably have resulted from his conduct. See People v.
Janik, 127 Ill. 2d 390, 399 (1989). The State noted that defendant chose to return to Frazier’s
apartment with the intent to confront Moon with no indication that she was armed.
¶ 63 The trial court denied defendant’s request to instruct the jury on necessity and
explained why the evidence did not support a necessity instruction. The court first recounted the
following facts, which it noted were not in dispute:
“Moon had apparently shown up at the defendant’s brother’s residence and
- 14 - dropped off three children. There was an incident, an alleged incident, police were
called, police responded, and then several hours later she showed back up at the
apartment. The second time that she showed up the defendant was not there. He
had taken the kids and gone to a residence *** which [was] nowhere near Tracy
Drive, so quite a ways away from his brother’s residence.”
¶ 64 The trial court then described the situation that defendant was in after he left
Frazier’s apartment as follows:
“He’s there with the children having no intention to return to the apartment that
evening, and he gets a phone call from his brother *** saying *** Moon is here
and she’s throwing a fit in the hallway, banging on walls, whatever. At that point
that’s the situation. Defendant’s nowhere near there, the children are nowhere
near there, *** Moon is there, *** Frazier is there and maybe one or two other
people in the apartment. At that point the logical course of action would be to
contact the police and have the police return and deal with the situation. That’s
not what the defendant did. The defendant decided he was going to go over there
and deal with it. So he goes over there, climbs up over a balcony, enters through
some back or different entrance, goes into the apartment, grabs a gun, goes out the
front door of the apartment and confronts *** Moon. It’s a very quick
confrontation where on video it lasts a matter of seconds, and then the defendant I
believe returns into the apartment. It’s only a three-second video that shows the
defendant with the firearm, puts it behind his back, and back into the apartment,
and then the police are called. Police respond, and the defendant ultimately gets
arrested because of the video showing him in possession of a firearm. This
- 15 - offense would not have occurred had the defendant not returned to the apartment.
The police should have been called and that would have been the end of it,
but that’s not what happened. The defendant returned, grabbed a gun, and
confronted the victim, not the victim, but the mother of his children. It cannot be
said that the defendant was without blame in occasioning or developing the
situation because he drove across town in essence to confront her. Whenever the
intent to grab the gun developed doesn’t matter, but the fact of the matter is he
was nowhere near that location, he returned to the location when he found out she
was there, climbed in a back window, grabbed a gun, confronted her through the
front door. Let’s say he had just returned to the apartment, or he had been in the
apartment when she got there, even the act of opening the door and confronting
her would add, especially if you’re in possession of a firearm, would reasonably
be construed as developing or occasioning the situation to escalate. It cannot be
found that even with the prior incidents, with all the prior incidents it would be
more reason to believe that the defendant wouldn’t risk any confrontation with
her, he would just call the police and let them deal with it.
So the Court finds that the evidence in this case is such that the defendant
is not without blame in occasioning or developing the situation, that his conduct
was not necessary to avoid a public or private injury greater than the injury which
might reasonably result in the conduct, and the Court is going to deny the request
for the necessity defense. So, defense tendered instruction number 1 is going to be
denied.”
¶ 65 The jury was not instructed as to any affirmative defense. The jury submitted
- 16 - several questions while deliberating, all of which were answered by the trial court with defense
counsel’s agreement to the court’s responses. One question submitted by the jury was, “Can a
felon have a gun if [he is] in danger?”
¶ 66 Ultimately, the jury found defendant guilty of UPWF as charged in count I but not
guilty as charged in count II.
¶ 67 C. Sentencing
¶ 68 In January 2024, defendant filed a posttrial motion, arguing, among other things,
that the trial court erred by denying his request to instruct the jury on the necessity defense.
¶ 69 In March 2024, following a hearing, the trial court denied defendant’s motion.
Later that month, the court conducted defendant’s sentencing hearing. At the beginning of the
hearing, the court stated that it had received a presentence investigation report (PSI) filed in
January 2024.
¶ 70 The State presented no evidence in aggravation but asked the trial court to take
judicial notice of the court files from defendant’s past two felonies, which the court did. The
State recommended a 10-year prison term, emphasizing his lengthy history of criminal activity
and the serious harm that he threatened to Moon and others by confronting her with a loaded
firearm.
¶ 71 Defendant argued that his conduct was not threatening, asserting that he merely
possessed the firearm; he did not discharge it, raise it at Moon, or make any threats. He asked for
the minimum of two years in prison given the mitigating factors present.
¶ 72 Defendant gave the following statement in allocution:
“I agree with my attorney that I never meant to harm anybody and I do
take responsibility because I’m a man. At the end of the day right or wrong all I
- 17 - did was try to live so I can be old and grey and that I can see my kids again and
take care of them. I’m a great father, I’m a great person with a great heart, and I
don’t mind working. Previously I had—was into real estate. I’m not as far as a
bad guy or try to be. One thing is I’m big on family, big on respect, and I’m big
on protecting me and my family.
So I understand it’s the Court’s decision. I understand rules is rules, the
law is law, but I just hope for the best, man.”
¶ 73 The trial court then gave its sentence and reasoning. The court stated that it had
considered the PSI, the proffers and arguments of the parties, and the statutory factors in
aggravation and mitigation. Regarding the PSI, the court noted that defendant made a comment
in the PSI that he wanted to move on from Moon, but she put him in jail. The court explained
that there was no doubt that their relationship was very toxic based on the prior incidents
between them, but on June 30, 2023, instead of calling the police officers again, as he had earlier
that evening, when Moon returned, defendant decided to travel back to the apartment, borrow a
loaded gun, and “try to deal with it” himself. The court disagreed with defendant’s comment in
the PSI, stating, “[S]he didn’t put you in jail. When you grabbed the gun you put yourself in
jail.” The court found that there was no doubt that defendant’s conduct threatened serious harm
and, given his criminal history, a sentence was necessary to deter others from committing the
same offense. In mitigation, the court noted that defendant did care about his children and
wanted to work.
¶ 74 Ultimately, the trial court sentenced defendant to 9 years in prison, to be served at
50%, with credit for 252 days of time served in the county jail.
¶ 75 Defendant subsequently filed a motion to reconsider his sentence, arguing that the
- 18 - sentence was excessive, which the trial court denied.
¶ 76 This appeal followed.
¶ 77 II. ANALYSIS
¶ 78 Defendant appeals, arguing the trial court abused its discretion by (1) refusing to
instruct the jury on the necessity defense and (2) imposing an excessive nine-year prison
sentence. We affirm.
¶ 79 A. The Necessity Instruction Decision
¶ 80 Defendant argues that the trial court erred when it declined to instruct the jury on
the necessity defense because there was some evidence warranting the instruction.
¶ 81 1. The Applicable Law and Standard of Review
¶ 82 Criminal defendants are entitled to have the jury instructed on any defense theory,
so long as there exists at least slight evidence in support of the theory. People v. Brown, 2017 IL
App (3d) 140921, ¶ 22. A trial court’s determination that the evidence was insufficient to justify
the giving of an instruction is reviewed for an abuse of discretion. People v. McDonald, 2016 IL
118882, ¶ 42. “An abuse of discretion occurs only where the trial court’s decision is arbitrary,
fanciful, or unreasonable to the degree that no reasonable person would agree with it.” (Internal
quotation marks omitted.) People v. Sloan, 2024 IL 129676, ¶ 15.
¶ 83 Sections 7-13 and 7-14 of the Criminal Code of 2012 provide that necessity is an
affirmative defense to a criminal offense. 720 ILCS 5/7-13, 7-14 (West 2022). Section 7-13
specifically provides:
“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
- 19 - private injury greater than the injury which might reasonably result from his own
conduct.” Id. § 7-13.
¶ 84 The necessity defense “is viewed as involving the choice between two admitted
evils where other optional courses of action are unavailable [citations], and the conduct chosen
must promote some higher value than the value of literal compliance with the law.” Janik, 127
Ill. 2d at 399. For the defense to apply, “the threat of harm must be ‘specific and immediate.’ ”
People v. Taylor, 2023 IL App (4th) 220381, ¶ 65 (quoting People v. Kite, 153 Ill. 2d 40, 45
(1992)); see People v. Guja, 2016 IL App (1st) 140046, ¶ 47 (“The defense of necessity applies
when the threat of harm was immediate and defendant’s conduct was the sole option to avoid
injury.”).
¶ 85 2. This Case
¶ 86 Here, we conclude that the trial court did not abuse its discretion by finding
insufficient grounds to warrant a necessity instruction. The affirmative defense of necessity is
available only when “(1) the defendant was without blame in occasioning or developing the
situation and (2) the defendant reasonably believed that [his] conduct was necessary to avoid a
public or private injury greater than the injury that might have resulted from literal compliance
with the law.” People v. Kratovil, 351 Ill. App. 3d 1023, 1033 (2004). The evidence presented
here failed to satisfy either of these requirements.
¶ 87 First, as the trial court correctly determined, defendant was not blameless in
developing the situation. His own testimony revealed that he was situated in a safe location a
significant distance—10 to 15 minutes away—from Frazier’s apartment, where Moon was
reportedly causing a disturbance. Defendant did not simply return home to an unavoidable
confrontation outside the apartment. Instead, he chose to return at Frazier’s prompting
- 20 - specifically to confront Moon. Once there, recognizing the possibility of a physical altercation,
he deliberately chose to reenter the apartment through a second-story window and then acquired
a gun to facilitate his safely confronting Moon. None of this needed to transpire, and defendant
never would have come into possession of a gun had he simply not returned to the apartment and
instead called the police, something he did earlier that same day with a positive outcome.
¶ 88 Second, the evidence unequivocally shows that defendant’s belief that his
possession of a gun to confront Moon was necessary to avoid a greater injury than might have
resulted from his literal compliance with the law was unreasonable. “Conduct that would
otherwise be illegal is justified by necessity only if the conduct was the sole reasonable
alternative available to the defendant under the circumstances.” Id. at 1034; see People v. Boston,
2016 IL App (1st) 133497, ¶ 39 (a necessity defense applies only when the “defendant’s conduct
was the sole option to avoid injury”).
¶ 89 As the trial court found, defendant faced no threat when Moon arrived because he
was not in the apartment, nor did he face any immediate threat after he climbed into the
apartment through the window. Defendant’s belief about the danger Moon posed to the
occupants was speculative, as was his assumption that she had companions. Significantly, we
have no indication that Moon was even aware that defendant was present prior to defendant
confronting her. Even if Moon harbored some intent to harm defendant or Frazier, the testimony
showed that the locked apartment door was sufficient to prevent Moon from entering.
¶ 90 Despite these circumstances, defendant chose to personally confront Moon with a
firearm instead of contacting the police or allowing Frazier and Brown to handle the situation.
Because nothing in the evidence shows that other legal options were not foreclosed to defendant
and his testimony unequivocally establishes that he simply chose not to pursue those other
- 21 - options, we conclude that the trial court did not abuse its discretion by declining to give the jury
instructions on the necessity defense. See People v. Legoo, 2020 IL 124965, ¶ 34 (noting that the
defendant, a sex offender, could not rely on the necessity defense to enter a public park to
retrieve his son where other options, including calling the police for assistance, were available to
him).
¶ 91 We note that defendant argues that the jury’s inquiry, “Can a felon have a gun if
in danger?” indicates that there was at least some evidence supporting a necessity defense. We
disagree. Although that question indicates some curiosity by the jury about whether a necessity
defense was a consideration, that question does not alter the trial evidence or establish that the
evidence met the legal threshold to support a necessity instruction. Whether the necessity
instruction was appropriate was within the trial court’s discretion, and it is presumed to know the
law and to apply it appropriately. See People v. Cummings, 2023 IL App (1st) 220520, ¶ 33.
¶ 92 Defendant also compares this case to People v. Ferree, 221 Ill. App. 3d 212
(1991), and People v. Crowder, 2018 IL App (1st) 161226. However, both cases are factually
distinct from the present one.
¶ 93 Ferree involved a prisoner’s possession of a shank in order to protect himself
from an immediate attack by members of the Latin Kings gang when the cell doors were opened.
Ferree, 221 Ill. App. 3d at 217. The defendant testified that he had left the Latin Kings, and
shortly before the doors to his prison cell were to open for mealtime, a note was thrown into his
cell, which stated, “I know your pretty a*** no longer belongs to the kings, so when the doors
roll, your a*** is mine, Punk.” Id. at 214. “He took the note seriously because he had observed
one inmate killed, supposedly by the Latin Kings.” Id. at 215. The defendant testified that he had
no time to report the threat to authorities because there was only a single, unarmed, and
- 22 - inaccessible guard down the hall. Id. On appeal, given the immediacy of the situation, the
appellate court concluded that there was at least some evidence supporting necessity. Id. at 217.
¶ 94 In Crowder, the defendant and his 73-year-old father went to the defendant’s
estranged wife’s home to retrieve his daughter’s clothing. Crowder, 2018 IL App (1st) 161226,
¶ 5. When they arrived, three men confronted them at the door and, without provocation, one of
the men punched the defendant and his father, causing his father to fall off the porch and suffer
injuries. Id. ¶ 7. The men continued making threats, including that they would shoot the
defendant. Id. ¶ 8. The defendant, seeing what he believed was a weapon bulge on one of the
men and fearing for his and his father’s safety, grabbed his father’s legally owned handgun and
fired one shot into the air before fleeing. Id. ¶ 8. He was arrested minutes later and cooperated
with police. Id. ¶ 10. Following a bench trial, the court found the defendant guilty of aggravated
unlawful use of a weapon predicated on his unauthorized possession of the handgun. Id. ¶ 14. On
appeal, the appellate court reversed his conviction, holding that “no rational trier of fact could
find the State carried its burden with respect to negating either the defense of self defense or the
defense of necessity, based on the undisputed evidence presented at trial.” Id. ¶ 35.
¶ 95 Unlike those cases, defendant here was far removed from the immediate situation
and had readily available alternatives to avoid a confrontation, such as simply contacting law
enforcement from his location away from the apartment or, once inside the apartment, keeping
the door locked and waiting for law enforcement to arrive. The circumstances lacked the same
level of exigency, and defendant was not without other means of avoiding exacerbating the
situation.
¶ 96 We conclude that the trial court did not err by declining to give the jury
instruction on necessity.
- 23 - ¶ 97 B. Defendant’s Sentence
¶ 98 Defendant also argues that his nine-year sentence was an abuse of discretion
given (1) the nonviolent nature of the offense, (2) his expressed remorse, (3) the significant
period of time since his last violent offense, (4) his record of consistent employment, and (5) the
detrimental effect that incarceration would have on his children.
¶ 99 1. The Applicable Law and Standard of Review
¶ 100 A trial court’s sentencing decision that falls within the statutory sentencing range
is entitled to great deference and generally will not be disturbed on appeal absent an abuse of
discretion. People v. Alexander, 239 Ill. 2d 205, 212 (2010). The role of a reviewing court is not
to reweigh sentencing factors or substitute its own judgment for that of the trial court. People v.
Klein, 2022 IL App (4th) 200599, ¶ 37. “A sentence within statutory limits will not be deemed
excessive and an abuse of the court’s discretion unless it is ‘greatly at variance with the spirit and
purpose of the law or manifestly disproportionate to the nature of the offense.’ ” People v. Pina,
2019 IL App (4th) 170614, ¶ 20 (quoting People v. Fern, 189 Ill. 2d 48, 54 (1999)).
¶ 101 We afford this deference to trial courts because they are in the best position to
determine an appropriate sentence, having had the opportunity to observe the defendant’s
characteristics, credibility, and demeanor firsthand. People v. Stacey, 193 Ill. 2d 203, 209 (2000).
A sentencing court is not required to explicitly state every factor it considered when imposing
the sentence. People v. Wilson, 2016 IL App (1st) 141063, ¶ 11. We presume that the court has
considered all relevant sentencing factors and mitigating evidence. Id. To overcome this
presumption, the defendant must affirmatively demonstrate that the trial court failed to consider
these factors. Id.
¶ 102 In this case, defendant was subject to a statutory sentencing range of 2 to 10 years
- 24 - in prison. See 720 ILCS 5/24-1.1(e) (West 2022).
¶ 103 2. This Case
¶ 104 Defendant’s argument is essentially a request for this court to reweigh the
sentencing factors and substitute our judgment for that of the trial court, which is not our role.
Klein, 2022 IL App (4th) 200599, ¶ 37.
¶ 105 Defendant contends that his nine-year sentence—just one year short of the
maximum—is disproportionate to his conduct. He argues that the offense was nonviolent, that he
never threatened anyone with the gun, and that he made a calculated decision to use the weapon
given his past interactions with Moon, police response time, and his need for self-protection.
Defendant emphasizes that courts must consider the seriousness of the crime and the degree of
harm the defendant caused when fashioning an appropriate sentence.
¶ 106 However, defendant did not merely possess a gun—the offense for which the trial
court sentenced him. He borrowed the weapon with the express purpose of confronting Moon,
the mother of his children. This act was particularly reckless and dangerous given their history of
mutual violence. Both parties testified that Moon had slashed defendant with a razor blade in an
earlier altercation, and both had sustained injuries from the altercation earlier that evening. By
bringing a firearm, defendant chose to escalate a potentially dangerous situation, even though
Moon gave no indication that she could enter the apartment or cause him harm. Defendant’s
actions were shortsighted and the result of a complete lack of critical thinking, which could have
resulted in severe injury or death.
¶ 107 Defendant also argues that he demonstrated rehabilitative potential by avoiding
new convictions between 2017 and 2023, maintaining and seeking employment before his arrest,
providing for his family, and working while in jail. He contends that lengthy imprisonment
- 25 - would cause undue hardship for his children and that the trial court gave insufficient weight to
mitigating evidence, such as his expression of remorse. These arguments, like the others,
ultimately ask this court to substitute its judgment for that of the trial court, which we will not
do.
¶ 108 We presume the trial court considered all relevant mitigating and aggravating
factors, and defendant bears the burden of affirmatively showing, with explicit record evidence,
that the trial court failed to consider these factors. Defendant has failed to meet this burden. As
the State noted at sentencing, defendant spent most of the last 16 years either incarcerated or
under some form of court supervision. Though some time had elapsed between his prior felonies
and this offense, the court could properly consider his history of repeatedly offending and failing
to complete probationary terms satisfactorily. Although Illinois law provides for “strong
consideration” to avoid disrupting the caregiving of young children (730 ILCS 5/5-5-
3.1(a)(18)(B) (West 2022)), the record shows that Moon serves as the primary caregiver, and
nothing in the record demonstrates that the court failed to consider how the nine-year sentence
would affect defendant’s children.
¶ 109 Ultimately, we will not second-guess the trial court’s decision. Defendant’s
conduct—possessing a gun with the intent and willingness to use it to intimidate another
person—went far beyond simple possession. His decision to introduce a firearm into an already
volatile situation, which he could have avoided entirely, demonstrates a dangerous disregard for
the safety of others. Given his criminal record and the particular nature of this offense, the court
did not abuse its discretion by imposing the nine-year sentence, which falls within the statutory
range.
¶ 110 III. CONCLUSION
- 26 - ¶ 111 For the reasons stated, we affirm the trial court’s judgment.
¶ 112 Affirmed.
- 27 -