NOTICE 2023 IL App (4th) 220597-U This Order was filed under FILED Supreme Court Rule 23 and is September 21, 2023 NOS. 4-22-0597, 4-22-0598 cons. Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McDonough County DAMON J. NIETHE, ) Nos. 21CF116 Defendant-Appellant. ) 21CF128 ) ) Honorable ) Raymond A. Cavanaugh, ) Judge Presiding.
JUSTICE DOHERTY delivered the judgment of the court. Justices Turner and Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed defendant’s convictions for theft and unlawful possession of firearm ammunition by a felon, finding that (1) defendant was not entitled to a Krankel hearing, (2) his conviction for unlawful possession of firearm ammunition by a felon was not against the manifest weight of the evidence, and (3) trial counsel did not render ineffective assistance.
¶2 In separate proceedings that are now consolidated on appeal, defendant Damon J.
Niethe was convicted of theft (720 ILCS 5/16-1(a) (West 2020)) (appeal No. 4-22-0597) and
unlawful use or possession of a firearm and firearm ammunition by a felon (UPWF) (id. § 24-
1.1(a)) (appeal No. 4-22-0598). He was sentenced to 3 years in prison for theft and 12 years in
prison for his UPWF convictions, with credit given in each sentence for time served in the county
jail. In appeal No. 4-22-0597, defendant argues that his case should be remanded for a Krankel hearing because the trial court failed to inquire concerning purported allegations of ineffective
assistance of counsel made by defense counsel in a written posttrial motion. See People v. Krankel,
102 Ill. 2d 181, 189 (1984). In appeal No. 4-22-0598, he argues (1) the State failed to prove beyond
a reasonable doubt that he knowingly possessed ammunition that was concealed in another
individual’s vehicle, which he was driving and (2) that his trial counsel was ineffective regarding
the arguments made in support of his pretrial motion to suppress.
¶3 We affirm.
¶4 I. BACKGROUND
¶5 Defendant’s consolidated appeals relate to his separate convictions in McDonough
County for two events that took place in mid-2021. Appeal No. 4-22-0597 involves his conviction
for a June 22, 2021, theft relating to a motor scooter and a 20-gallon water tank owned by Joel
Feikert. Appeal No. 4-22-0598 involves defendant’s convictions for knowingly possessing a
firearm and firearm ammunition on July 6, 2021. Defendant was interrogated by police for each
incident—on June 22 for the theft and on July 7 for the UPWF incident—and a copy of each video
recording was played for the jury during the respective trials.
¶6 We examine the pertinent facts of each case separately.
¶7 A. Appeal No. 4-22-0597/ McDonough County case No. 21-CF-116—Theft
¶8 On June 21, 2021, a theft occurred at a property owned by Joel Feikert in Bushnell,
Illinois. Defendant was charged by information with burglary (count I) (720 ILCS 5/19-1(a) (West
2020)) and theft (count II) (id. § 16-1(a)) relating to a black motor scooter and a 20-gallon water
tank belonging to Joel Feikert. Following a jury trial, he was convicted of theft but acquitted on
the burglary charge.
-2- ¶9 The sole issue on appeal relates to defendant’s entitlement to a Krankel hearing
based on written arguments contained in defense counsel’s posttrial motion; therefore, we limit
our discussion to those facts relating to the Krankel issue.
¶ 10 1. Admissibility of Defendant’s June 22, 2021, Interrogation Video
¶ 11 During trial, the State offered into evidence a video of defendant’s June 22, 2021,
police interrogation, People’s exhibit D, during which defendant had remarked that he did not want
to return to prison and that he was tired of being in prison. The video was then admitted into
evidence without objection. Although defense counsel did not initially object to its admission, as
the video began to play to the jury, he asked for a sidebar. Outside of the jury’s presence, counsel
interposed the following objection:
“I did not object originally, but just remembering the interview itself, I think I’m
going to object at this point because there is a part of the interview that my client
states that, you know, he’s not trying to go back to prison and mentions that. I feel
like if that’s brought up throughout the interview, that’s going to be an improper
impeachment towards my client. And I feel like the jury would weigh heavily on
the fact that he’s been to prison before and some of the comments that he’s made
in regards to that would affect the jury’s decision.”
¶ 12 The State argued that the motion should be denied and added that, “based upon my
recollection the defendant’s statements regarding his criminal history were all initiated by the
defendant. They weren’t in response to questions by law enforcement.” According to the State,
defendant “made affirmative statements regarding not wanting to go back to prison on his own and
not in response to questions from Detective Phelps.” Counsel also argued the objection was late
and that the video had already been “accepted into evidence.”
-3- ¶ 13 In denying defense counsel’s objection, the trial court found that defendant’s
incarceration had been brought up by defendant, who “throughout the course of the trial ***
brought out a couple times that [defendant’s] been in jail in Fulton County on fines and had a
warrant for arrest for fines in McDonough County when he was arrested.” The court felt that this
“indicates in some way that he had a prior criminal history of some kind.” The court did not address
the State’s contention that the objection had been waived.
¶ 14 Following defense counsel’s objection, the video was “admitted over objection.”
The full interrogation video was then played to the jury.
¶ 15 2. Motion for New Trial
¶ 16 Following defendant’s conviction for theft, he moved by counsel for a new trial,
arguing, inter alia, that the trial court erred by admitting the June 22, 2021, interrogation video,
because it contained defendant’s statements that he did not want to go back to prison. Concerning
the admissibility of the video, and following counsel’s arguments, the court stated: “I’ve seen
nothing or heard nothing which would show that this Court should have found the statements to
have been involuntarily made.” Moreover, the court remarked:
“I believe the Defendant received a fair trial ***. And even if some of this
evidence would not have been allowed into evidence, I don’t think it would have
changed the outcome ***. The Defendant was found not guilty Count I on
21-CF-116, the most serious charge, the burglary offense ***.
I believe the trial was fairly held and the jury worked through their
deliberation appropriately, and I believe that the trials were both fairly decided by
the juries, and I don’t believe there’s a sufficient basis to grant the Defendant a new
trial.”
-4- ¶ 17 The trial court denied defendant’s posttrial motion on June 16, 2022.
¶ 18 3. Sentencing
¶ 19 Defendant was sentenced to three years in prison, with credit for time served in the
county jail.
¶ 20 B. Appeal No. 4-22-0598/McDonough County case No. 21-CF-128,
Unlawful Possession of Firearm Ammunition
¶ 21 Defendant was charged with aggravated discharge of a firearm (720 ILCS
5/24-1.2(a)(2) (West 2020)) (count I), unlawful possession of a firearm by a felon (id. at § 24-
1.1(a)) (count II), and unlawful possession of firearm ammunition by a felon (id.) (count III).
¶ 22 1. General Facts
¶ 23 Defendant and Adrian Niethe are brothers. Adrian is married to Holli Warner. In
February 2021, defendant moved into Adrian and Warner’s residence, and he remained in the
home until he was told to leave in approximately mid-June 2021. At about the same time, Adrian
and Warner separated. Adrian explained that he kicked his brother out of his house because “he
was doing drugs in my house [with Warner] and I didn’t approve of it.” There was also testimony
that Warner and defendant were in a relationship. In late June, Warner obtained an order of
protection against Adrian.
¶ 24 On July 6, 2021, defendant and Warner were at the Gas Depot convenient mart in
Macomb, Illinois. Warner went into Gas Depot while defendant remained in the car as its driver.
While Warner was in the gas station, defendant’s brother Adrian arrived at the gas station on his
motorcycle. Adrian noticed Warner’s vehicle at the gas station and saw his brother sitting in the
driver’s seat. Defendant then drove out of the parking lot to avoid being seen by his brother. Adrian
-5- entered Gas Depot but did not notice Warner. However, Warner saw Adrian and immediately left
the store and began walking briskly towards her car and got into the passenger seat.
¶ 25 Shortly after Adrian exited Gas Depot, he saw Warner’s vehicle leaving the parking
lot. He rode his motorcycle towards the vehicle and, after an angry exchange of words, the two
vehicles ended up in a nearby bank’s parking lot. Defendant testified that Adrian parked his
motorcycle in front of Warner’s vehicle, blocking his exit; Adrian denied doing so. Although the
testimony conflicts in some respects, it shows that the two men exchanged heated words, and a
confrontation seemed to be developing. As Adrian walked towards Warner’s car, defendant either
retrieved or was given a loaded firearm (a Springfield XD 9-millimeter handgun owned by
Warner), which he subsequently pointed towards Adrian and fired. The testimony varied as to
whether one or two shots were fired and whether defendant actually aimed the gun at his brother
or fired into the ground. A 9-millimeter cartridge case was found in the parking lot at the location
where defendant was parked. The cartridge case matched the ammunition recovered from the
firearm as well as that found in Warner’s vehicle.
¶ 26 The police located a 9-millimeter firearm in the hotel room shared by Warner and
defendant and found 9-millimeter firearm ammunition in Warner’s vehicle’s trunk (two loose
rounds) and in the driver’s side door compartment (a partially filled 200-round box). When
retrieved by the police, the firearm contained a chambered round; additional rounds were in its
magazine.
¶ 27 It was stipulated that, at the time of the incident, defendant had been convicted of a
felony in 2014.
¶ 28 2. Pretrial Matters
-6- ¶ 29 Prior to trial, defendant moved to suppress his July 7, 2021, custodial interrogation
video and exclude it from evidence. The motion argued that defendant was intoxicated at the time
of his interrogation and that he was, therefore, unable to waive his Miranda rights (see Miranda v.
Arizona, 384 U.S. 436 (1966)) knowingly and intelligently. According to defendant’s motion, he
was interrogated by police over seven hours after being taken into custody. The motion further
asserted:
“Before being interviewed, the Defendant only stated ‘uh huh,’ when
acknowledging his Miranda rights. While he was being interrogated, the Defendant
had no shirt on, and was making abnormal body movements and statements.”
¶ 30 Defendant contended that these movements and statements indicated he was
grossly intoxicated and “never had the capacity to waive his Miranda rights,” and he requested the
State be barred from using any and all statements he made during the custodial interrogation.
¶ 31 At the hearing on defendant’s motion to suppress, the State played the interrogation
video and presented testimony from Lindsey May, a lieutenant with the Macomb Police
Department working in investigations, who had participated in the interrogation. May confirmed
that defendant had been taken into custody at about midnight on July 7 and that the interrogation
occurred the following morning at around 6 to 7 a.m. At the outset of the interrogation, defendant
denied any sort of drug use or consumption of alcohol and during the interview, he said, “I’m
good. I’m sober.” Defendant walked into the interrogation room under his own power, sat down
with no problems, and appeared to be engaged throughout the interrogation. Defendant orally
agreed that he understood his Miranda rights and signed a written Miranda waiver during the
interrogation.
-7- ¶ 32 May testified he had had prior contact with defendant on approximately 10
occasions; he believed defendant was under the influence during some of these encounters. May
said he had previously interviewed defendant in the jail two or three times and described for the
court his prior experiences with defendant:
“When I’ve interviewed [defendant] in the past, very animated. Like I said
earlier, talks very mumbled, kind of as I do. But then when he gets agitated, his
body starts to flail around. He starts to be pretty assertive in his talking as it
progresses louder, and he has a street slang to his talk when he talks when he’s
trying to get a point across.”
¶ 33 May was then asked:
“Q. And would it be fair to say based on the interview on July 7th that
[defendant] might have been under the influence of something?
A. I do not believe so ***. In my opinion, I do not believe he was under the
influence of anything at the time because of the time frame, but I do believe his
body was reacting to not having narcotics in his system.”
¶ 34 The trial court denied the motion to suppress, finding that defendant had orally
acknowledged his rights and also signed a written acknowledgement. The court further found that
defendant was “able to understand” and that, during parts of the interrogation, “was able to
articulate past events that took place. He acknowledged that he was good and sober. There was no
evidence of gross intoxication.”
¶ 35 The trial court subsequently denied defendant’s motion to reconsider its ruling.
¶ 36 Defendant filed a motion in limine requesting that “any evidence that references
him going to prison and evidence regarding another firearm incident be barred from trial.” The
-8- latter request referred to a UPWF charge pending in McDonough County case No. 21-CF-139 for
a matter in Bushnell on July 3, 2021. The same arguments were also made in defendant’s motion
to sever his trial in the instant case from case No. 21-CF-139. Although the trial court granted the
motion to sever, it denied that portion of the motion in limine seeking to bar introduction of the
July 7 interrogation video. According to the court, defendant’s statements about not wanting to go
back to jail were “not in response to any of Lieutenant May’s questions. They were spontaneous
statements or utterances.” The court ruled that the video would come into evidence at trial.
¶ 37 3. Conviction Following a Jury Trial
¶ 38 On April 19, 2022, defendant was convicted of knowingly possessing a firearm
(count II) and firearm ammunition (count III) by a felon; he was acquitted of aggravated discharge
of a firearm (count I).
¶ 39 4. Posttrial Motion and Sentencing
¶ 40 Defendant filed a motion for a new trial, challenging the admission of various
“Chirp” messages (a matter which is not at issue on appeal) and the introduction of the July 7
interrogation video. The latter argument asserted that defendant had filed a motion in limine to
prevent introduction of the statements regarding not wanting to go back to jail and the other
firearms charge and that he was continuing to argue that the video should not have been allowed
into evidence. The motion for a new trial did not challenge the verdict or the ruling on the motion
to suppress.
¶ 41 The posttrial motion was denied.
¶ 42 On that same day, defendant was sentenced to 12 years in prison on the charge of
knowing possession of a firearm and of firearm ammunition, with credit for time served in the
county jail. A motion to reconsider and reduce the sentence was filed, but it was denied.
-9- ¶ 43 This appeal followed.
¶ 44 II. ANALYSIS
¶ 45 We address the merits of each appeal in turn.
¶ 46 A. Right to a Krankel Hearing—Appeal No. 4-22-0597
¶ 47 Defendant argues that this court should remand this case to the trial court for a
Krankel hearing on potential ineffective assistance of counsel because his trial counsel’s written
motion for new trial “explained that he made a mistake when [counsel] failed to object to the
interrogation video being admitted in its entirety.” Defendant claims the court erroneously failed
to inquire concerning “defense counsel’s extremely credible allegation of [his] own
ineffectiveness.”
¶ 48 1. Krankel Hearing
¶ 49 As this court recently held in People v. Cook, 2023 IL App (4th) 210621, ¶ 52,
“Krankel and its progeny establish the procedures a trial court must follow when a pro se defendant
raises a posttrial claim of ineffective assistance of counsel.” (citing Krankel, 102 Ill. 2d at 187-89;
People v. Jolly, 2014 IL 117142, ¶ 29; People v. Roddis, 2020 IL 124352, ¶ 34; People v. Jackson,
2020 IL 124112, ¶ 95). The objective of a Krankel inquiry is to allow the trial court “to decide
whether independent counsel is necessary to argue a defendant’s pro se posttrial ineffective
assistance claims at a full Krankel hearing.” In re Johnathan T., 2022 IL 127222, ¶ 23.
¶ 50 As we explained in Cook, “[t]hese procedures serve ‘ “the narrow purpose of
allowing the trial court to decide whether to appoint independent counsel to argue a defendant’s
pro se posttrial ineffective assistance claims [citation] to promote consideration of pro se
ineffective assistance claims in the trial court and to limit issues on appeal. [Citation.]” (Internal
quotation marks omitted.) Cook, 2023 IL App (4th) 210621, ¶ 52. “Whether Krankel procedures
- 10 - apply to a particular proceeding presents a question of law that is reviewed de novo.” Id. ¶ 54;
People v. Custer, 2019 IL 123339, ¶ 25.
¶ 51 2. Application to Our Facts
¶ 52 Illinois law is clear that Krankel only applies to posttrial claims raised pro se by
defendants alleging that trial counsel was ineffective. People v. Bates, 2018 IL App (4th)
160255, ¶ 102 (citing People v. McGath, 2017 IL App (4th) 150608, ¶ 49), aff’d as modified, 2019
IL 124143, ¶¶ 21, 32-33. Here, Krankel was not triggered by any pro se action taken by defendant.
First, defendant did not file a pro se motion before the trial court. See, e.g., Cook, 2023 IL App
(4th) 210621, ¶ 57 (considering defendant’s pro se motion to reconsider sentence but concluding
that no Krankel issues had been raised). Second, although it is true that a represented defendant’s
oral statements about his counsel’s ineffectiveness may be sufficient to trigger a Krankel inquiry
(see People v. Rhodes, 2019 IL App (4th) 160917, ¶ 18; Jackson, 2020 IL 124122, ¶ 96), a review
of the posttrial motion hearing transcript shows defendant did not testify or make any remarks to
the court. Accordingly, defendant raised no pro se claims of ineffective assistance of counsel.
¶ 53 Next, we briefly address defendant’s central assertion on this issue—that defense
counsel’s written posttrial motion arguments triggered the need for a Krankel hearing. Defendant’s
posttrial motion argued only that the trial court should have sustained counsel’s objection to
entering the interrogation video into evidence; in short, the arguments centered on the substance
of the asserted objection, not counsel’s own ineffectiveness. Indeed, Illinois law provides that an
attorney cannot raise his or her own ineffectiveness except at the direction of the defendant. Bates,
2019 IL 124143, ¶ 33. It is “inappropriate for trial counsel to argue his own ineffectiveness.”
McGath, 2017 IL App (4th) 150608, ¶ 52 (citing People v. Lawton, 212 Ill. 2d 285, 296 (2004)
(stating a lawyer faces an “inherent conflict of interest” when he argues his own ineffectiveness)).
- 11 - ¶ 54 Although the written posttrial motion acknowledged that counsel initially “did not
object” to the video’s introduction into evidence and that he subsequently objected “after
remembering that the Defendant [had] made some prejudicial comments,” it is patently evident
that the supporting arguments were directed against the ruling itself. It is equally apparent that the
trial court’s ruling on the objection was not based on waiver or tardiness in objecting. The court
listened to counsel’s objection, overruled it because “defense counsel ‘opened the door’ for
testimony about the Defendant being incarcerated on a previous matter,’ ” and made a docket entry
stating that the video was “admitted over objection.”
¶ 55 We conclude there was no pro se action taken by defendant, whether by motion or
orally, to trigger a Krankel hearing.
¶ 56 Because the appeal does not raise any challenge to the trial court’s substantive
ruling on the objection or the actual admission of the video into evidence, we affirm jury’s verdict
in case No. 4-22-0597.
¶ 57 B. Knowing Possession of Firearm Ammunition—Appeal No. 4-22-0598
¶ 58 Defendant challenges the sufficiency of the evidence to support the jury’s guilty
verdict on the charge of knowingly possessing ammunition by a felon. Specifically, he contends
the State failed to prove beyond a reasonable doubt that he “knowingly possessed ammunition that
was concealed in Holli Warner’s car.”
¶ 59 Section 24-1.1(a) of the Criminal Code of 2012 provides, in part:
“It is unlawful for a person to knowingly possess on or about his person or
on his land or in his own abode or fixed place of business any weapon prohibited
under Section 24-1 of this Act or any firearm or any firearm ammunition if the
- 12 - person has been convicted of a felony under the laws of this State or any other
jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2020).
¶ 60 The statute further provides that “[t]he possession of each firearm or firearm
ammunition in violation of this Section constitutes a single and separate violation.” Id. § 24-1.1(e).
The purpose underlying the UPWF statute “ ‘is to protect the health and safety of the public by
deterring possession of weapons by convicted felons, a class of persons that the legislature has
determined presents a higher risk of danger to the public when in possession of a weapon.’ ” People
v. Garvin, 2013 IL App (1st) 113095, ¶ 14 (quoting People v. Crawford, 145 Ill. App. 3d 318, 321
(1986)).
¶ 61 “In order to establish knowing possession, the State must prove that the defendant
had actual or constructive possession of the contraband.” People v. Hester, 271 Ill. App. 3d 954,
961 (1995) (citing People v. Adams, 242 Ill. App. 3d 830, 832 (1993)). When a defendant is not
found in actual possession of firearm ammunition, the State must prove constructive possession.
People v. McCarter, 339 Ill. App. 3d 876, 879 (2003). To establish constructive possession, the
State must show that defendant (1) had knowledge of the presence of the firearm ammunition
and (2) exercised immediate and exclusive control over the area where the ammunition was found.
Id.
¶ 62 Knowledge may be shown by evidence of a defendant’s acts, declarations, or
conduct from which one can infer that he knew the contraband existed in the place where it was
found. People v. Beverly, 278 Ill. App. 3d 794, 798 (1996). Control is established when a defendant
has the “intent and capability to maintain control and dominion” over an item, even if he lacks
personal present dominion over it. People v. Frieberg, 147 Ill. 2d 326, 361 (1992). A defendant’s
control over the location where ammunition is found gives rise to an inference that he possessed
- 13 - the ammunition. See People v. Hines, 2021 IL App (1st) 191378, ¶¶ 31-32 (citing McCarter, 339
Ill. App. 3d at 879) (dealing with weapons).
¶ 63 We review a defendant’s challenge to the sufficiency of the evidence “to determine
whether, after viewing the evidence in the light most favorable to the State, any rational trier of
fact could have found the essential elements of the offense beyond a reasonable doubt.” People v.
Grimes, 386 Ill. App. 3d 448, 455 (2008) (citing People v. Wheeler, 226 Ill. 2d 92, 114 (2007)).
“ ‘This same standard of review applies regardless of whether the evidence is direct or
circumstantial.’ ” Id. (quoting People v. Cooper, 194 Ill. 2d 419, 431 (2000)). “Because the jury is
in the best position to judge the credibility and demeanor of the witnesses, its findings are entitled
to great weight.” Id. (citing Wheeler, 226 Ill. 2d at 114-15).
¶ 64 Here, although defendant did not raise the sufficiency of the evidence argument in
his posttrial motion, we note that a defendant “can never forfeit his or her challenge to the
sufficiency of the evidence proving an element of a criminal offense.” People v. Clifton, 2019 IL
App (1st) 151967, ¶ 44 (citing People v. Cregan, 2014 IL 113600, ¶ 16). Thus, we consider this
contention on appeal.
¶ 65 Defendant has failed to show that the jury’s verdict was against the manifest weight
of the evidence. As a starting point, we note that defendant concedes the existence of his prior
felony charge. He asserts, however, that he did not know that there was ammunition in the vehicle
and that he had no control over Warner’s vehicle; in essence, he is arguing a lack of knowledge
sufficient to support constructive possession.
¶ 66 Defendant wholly overlooks the overwhelming evidence in the record that he held
(and thus possessed) a firearm (he was also convicted of unlawful possession of a firearm by a
felon, count II), that the firearm was loaded at that time, and that he discharged ammunition from
- 14 - it. According to witnesses Warner and Adrian Niethe, defendant held the handgun and fired it.
Warner, who owned the gun, testified that it was “fully loaded” and that there was ammunition
stored with it in the center console of the car. She testified that defendant reached into the center
console and grabbed the firearm, then fired it at the ground in Adrian’s direction. Adrian confirmed
that defendant aimed the gun at him and fired it. He was then asked, “And at what point do you
see your brother with the gun?” to which Adrian responded, “At the point that he pulls it out from
below and pulls it out.” Adrian said the gun was pointed directly at him and that he was looking at
defendant when the gun was fired.
¶ 67 We can likewise consider defendant’s admission at trial that he possessed a loaded
firearm and fired it. Defendant testified that Adrian was walking towards him when “Holli handed
me the firearm, and I shot the gun out the window into the ground.” He elaborated, “I stuck my
arm out the window and pointed the gun in the ground and fired a single shot into the ground.”
Defendant, however, claimed that Warner removed the gun from her purse and handed it to him
and denied it was located in the center console. This testimony constitutes direct evidence of actual
possession by defendant of firearm ammunition.
¶ 68 Section 5/24-1.1(a) (the UPWF statute) authorizes “separate convictions when a
felon possesses a loaded firearm, a conviction based on the firearm and a conviction based on the
ammunition inside that firearm.” People v. Almond, 2015 IL 113817, ¶ 36; see People v. Anthony,
2011 IL App (1st) 091528-B, ¶ 9; People v. Howard, 2014 IL App (1st) 122958, ¶¶ 17-18; cf.
People v. Lee, 379 Ill. App. 3d 533, 538 n.2 (2008) (charges merged into one conviction under
former statute but acknowledged that the Criminal Code of 1961 was subsequently “amended by
Public Act 94-284 (Pub. Act. 94-284, eff. July 21, 2005), such that possession of any firearm or
firearm ammunition constitutes a single and separate violation of the statute”). Here, count III of
- 15 - the information stated that defendant “knowingly possessed firearm ammunition, being 9mm
handgun rounds, at a time when he was not on his own land or in his own abode or fixed place of
business, after having been previously convicted of a forcible felony [(burglary)].”
¶ 69 It is the responsibility of the trier of fact to weigh, resolve conflicts in, and draw
reasonable inferences from the testimony and other evidence. People v. Harris, 2018 IL
121932, ¶ 26. We do not retry a defendant. People v. Eubanks, 2019 IL 123525, ¶ 95. A
defendant’s conviction will be reversed only if the evidence is so unreasonable, improbable, or
unsatisfactory that a reasonable doubt of the defendant’s guilt remains. Hines, 2021 IL App (1st)
191378, ¶ 31. We conclude the jury, as trier of fact, was free to infer defendant’s actual possession
of ammunition based on the strong evidence—including defendant’s own testimony—that he held
a loaded firearm and subsequently discharged it. We need not address the arguments relating to
constructive possession.
¶ 70 Although defendant complains that the charging documents did not properly charge
him with simultaneous possession of a firearm and possession of firearm ammunition, this
argument has also been forfeited. First, the issue was only raised in defendant’s reply brief, and it
is well-settled that issues raised for the first time in the reply brief do not merit consideration on
appeal and are forfeited. Tivoli Enterprises, Inc. v. Brunswick Bowling & Billiards Corp., 269 Ill.
App. 3d 638, 642 (1995) (citing Britamco Underwriters, Inc. v. J.O.C. Enterprises, Inc., 252 Ill.
App. 3d 96, 98 (1993)). Second, the issue of proper charging is likewise forfeited because it was
not raised at trial or in defendant’s posttrial motion. See People v. Davis, 352 Ill. App. 3d 570, 573
(2004) (“[T]he defendant did not timely object to the allegedly deficient charging instrument or
jury instructions at trial. As such, the defendant’s argument is waived.”).
¶ 71 We therefore affirm the jury’s verdict on count III.
- 16 - ¶ 72 C. Ineffective Assistance of Counsel—Appeal No. 4-22-0598
¶ 73 Defendant further argues ineffective assistance of counsel, contending that his trial
attorney failed to properly support the motion to suppress his July 7, 2021, interrogation video,
which was shown to the jury during trial. He has not, however, appealed the merits of the motion
to suppress. Thus, we examine his ineffective assistance claim.
¶ 74 1. Ineffective Assistance of Counsel Claims
¶ 75 This court analyzes claims of ineffective assistance of counsel under the
two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
Merriweather, 2022 IL App (4th) 210498, ¶ 40 (citing People v. Evans, 186 Ill. 2d 83, 93 (1999));
see People v. Thomas, 2017 IL App (4th) 150815, ¶ 10. To establish ineffective assistance of
counsel, a defendant must show (1) counsel’s performance fell below minimal professional
standards and (2) a reasonable probability exists the defendant’s trial was affected. People v.
Hibbler, 2019 IL App (4th) 160897, ¶ 88; People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010).
¶ 76 To satisfy the deficiency prong of Strickland, “the defendant must demonstrate
counsel made errors so serious and counsel’s performance was so deficient that counsel was not
functioning as ‘counsel’ guaranteed by the sixth amendment.” Merriweather, 2022 IL App (4th)
210498, ¶ 40 (citing Evans, 186 Ill. 2d at 93). “Effective assistance of counsel refers to competent,
not perfect representation.” (Internal quotation marks omitted.) Evans, 209 Ill. 2d at 220.
Moreover, “[m]istakes in trial strategy or tactics do not necessarily render counsel’s representation
defective.” Thomas, 2017 IL App (4th) 150815, ¶ 10 (citing People v. Kyse, 220 Ill. App. 3d 971,
794 (1991)). Indeed, the defendant must overcome the strong presumption the challenged action
or inaction could have been the product of sound trial strategy. Merriweather, 2022 IL App (4th)
210498, ¶ 40 (citing Evans, 186 Ill. 2d at 93). “This court is highly deferential of counsel’s
- 17 - performance.” In re T.R., 2019 IL App (4th) 190529, ¶ 126 (citing McGath, 2017 IL App (4th)
150608, ¶ 38). This deferential standard is used because “ ‘[t]here are countless ways to provide
effective assistance in any given case. Even the best criminal defense attorneys would not defend
a particular client in the same way.’ ” Id. (quoting Strickland, 466 U.S. at 689).
¶ 77 To satisfy the prejudice prong, a defendant must prove a reasonable probability
exists that, but for counsel’s unprofessional errors, the proceeding’s result would have been
different. Id. ¶ 125; Thomas, 2017 IL App (4th) 150815, ¶ 11; People v. Houston, 229 Ill. 2d 1, 4
(2008). A “reasonable probability” has been defined as a probability which would be sufficient to
undermine confidence in the outcome of the trial. Houston, 229 Ill. 2d at 4. “A defendant must
satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a
finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35; see Merriweather, 2022 IL
App (4th) 210498, ¶ 40 (quoting Hibbler, 2019 IL App (4th) 160897, ¶ 88).
¶ 78 A defendant’s claim of ineffective assistance of counsel on appeal is reviewed
under the de novo standard. Hibbler, 2019 IL App (4th) 160897, ¶ 88; T.R., 2019 IL App (4th)
190529, ¶ 128.
¶ 79 2. No Prejudice Shown
¶ 80 In this case, we can dispose of defendant’s assertion of ineffective assistance of
counsel on the prejudice prong alone. See, e.g., People v. Smith, 195 Ill. 2d 179, 188 (2000) (“If a
defendant cannot establish that he suffered prejudice, a court need not determine whether counsel’s
performance was constitutionally deficient.”); People v. Coleman, 183 Ill. 2d 366, 397-398 (1998)
(“Courts, however, may resolve ineffectiveness claims under the two-part Strickland test by
reaching only the prejudice component, for lack of prejudice renders irrelevant the issue of
counsel’s performance.”).
- 18 - ¶ 81 As we previously detailed (infra ¶ 66), Warner and Adrian Niethe each testified
that defendant held and discharged a loaded firearm. Thus, even if the interrogation video had not
been admitted into evidence, and even if defendant had not testified at trial, sufficient evidence
was presented by Warner and Adrian to establish that defendant possessed firearm ammunition;
he fired the handgun, which necessarily implies it contained ammunition. Based on this testimony,
defendant has failed to show a reasonable probability that the result at trial would have been
different had the July 7 interrogation video been suppressed. See Jackson, 2020 IL 124112, ¶ 90.
¶ 82 We conclude that defendant cannot establish ineffective assistance of counsel
because, even if we were to conclude that counsel was deficient in handling the motion to suppress
the interview, defendant cannot show that he suffered any prejudice. Thus, he failed to satisfy the
second prong of Strickland: that “absent counsel’s deficient performance, there is a reasonable
probability that the result of the proceedings would have been different.” Id. Because defendant
must satisfy both prongs of this test, the failure to establish either is fatal to his claim. Id. (citing
Strickland, 466 U.S. at 697).
¶ 83 III. CONCLUSION
¶ 84 For the reasons stated, we affirm the trial court’s judgment.
¶ 85 Affirmed.
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