Filed 1/27/10 NO. 4-08-0797
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Adams County CHAUNCEY PERRY, ) No. 08CF358 Defendant-Appellee. ) ) Honorable ) Michael R. Roseberry, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In July 2008, the State charged defendant, Chauncey
Perry, with aggravated battery, a Class 3 felony (720 ILCS 5/12-
4(b)(1), (e)(1) (West 2006)), and unlawful use of weapons by a
felon, a Class 1 felony (720 ILCS 5/24-1.1(b), (e) (West 2006)).
Defendant was an inmate in the Department of Corrections at the
time of the July 2006 incident. While the information calls the
charge "Unlawful Use of Weapons by Felons," defendant was actu-
ally charged with "Unlawful Possession of a Weapon by a Person in
a Penal Institution of the Department of Corrections," pursuant
to section 24-1.1(b) of the Criminal Code of 1961 (720 ILCS 5/24-
1.1(b) (West 2006)). Defendant possessed a metal padlock inside
a knotted sock and swung this improvised weapon into the face of
another inmate.
In October 2008, a jury was empaneled. After several
witnesses had testified for the prosecution, the State moved to admit its exhibits, including the lock and the sock described
above. Defense counsel objected on the basis the object did not
constitute a "bludgeon" within the meaning of the unlawful-use-
of-weapons statute. 720 ILCS 5/24-1(a)(1) (West 2006). The
trial court dismissed the unlawful-use-of-weapons count for
failure to state an offense. The court held no reasonable jury
could find the padlock in a sock was a "bludgeon" as charged in
the information and prohibited by statute (720 ILCS 5/24-1(a)(1)
(West 2006)). The court permitted the State to amend the
aggravated-battery charge to delete the word "bludgeon" following
"a deadly weapon." The jury heard the evidence and convicted
defendant of aggravated battery. In December 2008, the court
sentenced defendant to six years and six months’ imprisonment on
the aggravated-battery conviction.
The State appeals, arguing the trial court erred in
dismissing the unlawful-use-of-weapons count because the padlock
in a sock is a "bludgeon" within the meaning of the statute. In
addition, the State argues if the padlock in a sock is not a
bludgeon, rather than dismissal, the State should have been
allowed to amend the information.
No challenge is made to defendant's aggravated-battery
conviction. We reverse the trial court’s judgment dismissing the
unlawful-use-of-weapons count and remand the case with direc-
tions.
- 2 - I. BACKGROUND
On July 13, 2006, defendant was confined in the Western
Illinois Correctional Center Clayton work camp. While standing
in line to be served food, defendant swung a sock containing a
padlock and deliberately struck the inmate behind him in the
face. The padlock had been issued to defendant by the Department
of Corrections for the purpose of securing his belongings.
Defendant testified he had been carrying the sock containing a
padlock, for the purpose of protection, for approximately one
week before the incident. A knot was tied in the sock to keep
the padlock inside.
As stated, the State charged defendant with aggravated
battery and unlawful use of weapons by a person in the custody of
a Department of Corrections facility. The information referred
to the weapon as a bludgeon, a statutorily prohibited weapon (720
ILCS 5/24-1(a)(1) (West 2006)). After presenting several wit-
nesses in an October 2008 jury trial, the State attempted to
introduce the sock and padlock into evidence. Defense counsel
objected, arguing the sock-and-padlock combination was not a
bludgeon under the statute upon which the charge was brought.
The trial court held no reasonable jury could find the padlock in
a sock was a "bludgeon" and dismissed the unlawful-use-of-weapons
count for failure to state an offense. The court denied the
State’s motion for an interlocutory appeal. The jury convicted
- 3 - defendant of aggravated battery, and the court sentenced him as
stated.
This appeal followed.
II. ANALYSIS
A. Standard of Review
The trial court held as a matter of law that defen-
dant’s padlock in a sock was not a bludgeon. We review questions
of law de novo. Naleway v. Agnich, 386 Ill. App. 3d 635, 647,
897 N.E.2d 902, 915 (2008).
B. Trial Court’s Determination: Lock in Sock Not a Bludgeon
In attempting to determine if the padlock in a sock was
a bludgeon, the trial court consulted the Oxford English Dictio-
nary, the Random House Dictionary, and the New Collegiate
Dictionary before noting, "[t]he common definition of bludgeon is
a short stick or club." The court then attempted to assess the
intent of the legislature. The primary objective when interpret-
ing a statutory term is to give effect to the intent of the
legislature. People v. Kohl, 364 Ill. App. 3d 495, 499, 847
N.E.2d 150, 154 (2006).
The trial court found the legislature restricted the
unlawful-use-of-weapons offense to those weapons specifically
listed in the statute without including "catch-all" language such
as "other dangerous weapons." The court further found the common
definition of "bludgeon" to be a short stick or club. The court
- 4 - noted a sock is not rigid or stick-like and therefore not a
bludgeon. The court allowed the State to proceed on count II,
the aggravated-battery charge, because, although not a bludgeon,
the lock in the sock could be found by a jury to be a deadly
weapon. The trial court reasoned if the legislature had wanted
additional expansive language added to the unlawful-use-of-
weapons statute, it could have expressly included it in subsec-
tion (a)(1) of section 24-1 (720 ILCS 5/24-1 (West 2006)).
Therefore, to convict defendant under the unlawful-use-of-weapons
statute, the padlock in a sock must literally be a bludgeon, not
merely something similar to a bludgeon or a "dangerous weapon of
like character."
C. Trial Court’s Definition Is Too Narrow
We look to the dictionary as well. Instead of blud-
geon, we first turn to the definition of "blackjack." Black’s
Law Dictionary defines a "blackjack" in several ways, including
as "[a] short bludgeon consisting of a heavy head, as of metal,
on an elastic shaft or with a flexible handle." Black’s Law
Dictionary 154 (5th ed. 1979). Thus, a blackjack meeting this
specification is a bludgeon. Not all bludgeons are blackjacks,
but all blackjacks consisting of a heavy head, as of metal, on an
elastic shaft or with a flexible handle are bludgeons. In
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Filed 1/27/10 NO. 4-08-0797
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Adams County CHAUNCEY PERRY, ) No. 08CF358 Defendant-Appellee. ) ) Honorable ) Michael R. Roseberry, ) Judge Presiding. _________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In July 2008, the State charged defendant, Chauncey
Perry, with aggravated battery, a Class 3 felony (720 ILCS 5/12-
4(b)(1), (e)(1) (West 2006)), and unlawful use of weapons by a
felon, a Class 1 felony (720 ILCS 5/24-1.1(b), (e) (West 2006)).
Defendant was an inmate in the Department of Corrections at the
time of the July 2006 incident. While the information calls the
charge "Unlawful Use of Weapons by Felons," defendant was actu-
ally charged with "Unlawful Possession of a Weapon by a Person in
a Penal Institution of the Department of Corrections," pursuant
to section 24-1.1(b) of the Criminal Code of 1961 (720 ILCS 5/24-
1.1(b) (West 2006)). Defendant possessed a metal padlock inside
a knotted sock and swung this improvised weapon into the face of
another inmate.
In October 2008, a jury was empaneled. After several
witnesses had testified for the prosecution, the State moved to admit its exhibits, including the lock and the sock described
above. Defense counsel objected on the basis the object did not
constitute a "bludgeon" within the meaning of the unlawful-use-
of-weapons statute. 720 ILCS 5/24-1(a)(1) (West 2006). The
trial court dismissed the unlawful-use-of-weapons count for
failure to state an offense. The court held no reasonable jury
could find the padlock in a sock was a "bludgeon" as charged in
the information and prohibited by statute (720 ILCS 5/24-1(a)(1)
(West 2006)). The court permitted the State to amend the
aggravated-battery charge to delete the word "bludgeon" following
"a deadly weapon." The jury heard the evidence and convicted
defendant of aggravated battery. In December 2008, the court
sentenced defendant to six years and six months’ imprisonment on
the aggravated-battery conviction.
The State appeals, arguing the trial court erred in
dismissing the unlawful-use-of-weapons count because the padlock
in a sock is a "bludgeon" within the meaning of the statute. In
addition, the State argues if the padlock in a sock is not a
bludgeon, rather than dismissal, the State should have been
allowed to amend the information.
No challenge is made to defendant's aggravated-battery
conviction. We reverse the trial court’s judgment dismissing the
unlawful-use-of-weapons count and remand the case with direc-
tions.
- 2 - I. BACKGROUND
On July 13, 2006, defendant was confined in the Western
Illinois Correctional Center Clayton work camp. While standing
in line to be served food, defendant swung a sock containing a
padlock and deliberately struck the inmate behind him in the
face. The padlock had been issued to defendant by the Department
of Corrections for the purpose of securing his belongings.
Defendant testified he had been carrying the sock containing a
padlock, for the purpose of protection, for approximately one
week before the incident. A knot was tied in the sock to keep
the padlock inside.
As stated, the State charged defendant with aggravated
battery and unlawful use of weapons by a person in the custody of
a Department of Corrections facility. The information referred
to the weapon as a bludgeon, a statutorily prohibited weapon (720
ILCS 5/24-1(a)(1) (West 2006)). After presenting several wit-
nesses in an October 2008 jury trial, the State attempted to
introduce the sock and padlock into evidence. Defense counsel
objected, arguing the sock-and-padlock combination was not a
bludgeon under the statute upon which the charge was brought.
The trial court held no reasonable jury could find the padlock in
a sock was a "bludgeon" and dismissed the unlawful-use-of-weapons
count for failure to state an offense. The court denied the
State’s motion for an interlocutory appeal. The jury convicted
- 3 - defendant of aggravated battery, and the court sentenced him as
stated.
This appeal followed.
II. ANALYSIS
A. Standard of Review
The trial court held as a matter of law that defen-
dant’s padlock in a sock was not a bludgeon. We review questions
of law de novo. Naleway v. Agnich, 386 Ill. App. 3d 635, 647,
897 N.E.2d 902, 915 (2008).
B. Trial Court’s Determination: Lock in Sock Not a Bludgeon
In attempting to determine if the padlock in a sock was
a bludgeon, the trial court consulted the Oxford English Dictio-
nary, the Random House Dictionary, and the New Collegiate
Dictionary before noting, "[t]he common definition of bludgeon is
a short stick or club." The court then attempted to assess the
intent of the legislature. The primary objective when interpret-
ing a statutory term is to give effect to the intent of the
legislature. People v. Kohl, 364 Ill. App. 3d 495, 499, 847
N.E.2d 150, 154 (2006).
The trial court found the legislature restricted the
unlawful-use-of-weapons offense to those weapons specifically
listed in the statute without including "catch-all" language such
as "other dangerous weapons." The court further found the common
definition of "bludgeon" to be a short stick or club. The court
- 4 - noted a sock is not rigid or stick-like and therefore not a
bludgeon. The court allowed the State to proceed on count II,
the aggravated-battery charge, because, although not a bludgeon,
the lock in the sock could be found by a jury to be a deadly
weapon. The trial court reasoned if the legislature had wanted
additional expansive language added to the unlawful-use-of-
weapons statute, it could have expressly included it in subsec-
tion (a)(1) of section 24-1 (720 ILCS 5/24-1 (West 2006)).
Therefore, to convict defendant under the unlawful-use-of-weapons
statute, the padlock in a sock must literally be a bludgeon, not
merely something similar to a bludgeon or a "dangerous weapon of
like character."
C. Trial Court’s Definition Is Too Narrow
We look to the dictionary as well. Instead of blud-
geon, we first turn to the definition of "blackjack." Black’s
Law Dictionary defines a "blackjack" in several ways, including
as "[a] short bludgeon consisting of a heavy head, as of metal,
on an elastic shaft or with a flexible handle." Black’s Law
Dictionary 154 (5th ed. 1979). Thus, a blackjack meeting this
specification is a bludgeon. Not all bludgeons are blackjacks,
but all blackjacks consisting of a heavy head, as of metal, on an
elastic shaft or with a flexible handle are bludgeons. In
essence, a blackjack is a specialty type of bludgeon. The common
definition of "bludgeon" simply does not specifically list this
- 5 - subset of bludgeons. Even Black’s Law Dictionary defines "blud-
geon" in the general sense as "[a] heavy club or stick used as a
weapon, commonly weighted in one end by metal." Black’s Law
Dictionary 157 (5th ed. 1979).
No decisive cases in Illinois establish exactly what
constitutes a bludgeon. People v. Collins, 6 Ill. App. 3d 616,
619, 286 N.E.2d 117, 119 (1972). However, under Illinois law a
bludgeon need not take the form of a club or stick. Collins, 6
Ill. App. 3d at 619, 286 N.E.2d at 119 (after consulting Black’s
Law Dictionary, holding that a heavy metal chain wrapped with
tape satisfied the definition of both "bludgeon" and "black-
jack").
Recognizing that a bludgeon may take the form of a
blackjack, in addition to the more common form of a club or
stick, we next consider whether a reasonable jury could find the
padlock in a sock to be a bludgeon. The padlock in the end of
the sock could be considered a heavy head, especially since made
of metal. The sock could also be interpreted to be an elastic
shaft or flexible handle. A reasonable jury could find defen-
dant’s padlock in a sock to be a bludgeon in the form of a
blackjack. Such a finding would be supported by the fact that
the padlock-and-sock combination had no legitimate use other than
as a weapon. See Collins, 6 Ill. App. 3d at 619, 286 N.E.2d at
119; People v. Tate, 68 Ill. App. 3d 881, 882-83, 386 N.E.2d 584,
- 6 - 586 (1979). The sock could not be worn with a padlock in the
toe, and the padlock could not be used for locking up defendant’s
belongings while tied up in the sock. We note that a prisoner
employing a lock in a sock as a bludgeon is not a new phenomenon.
See Shrader v. White, 761 F.2d 975, 982 (4th Cir. 1985) ("a lock
inside a sock [becomes] a bludgeon").
Since a reasonable jury could find the padlock in a
sock to be a bludgeon, the trial court erred in dismissing the
unlawful-use-of-weapons count (720 ILCS 5/24-1.1(b) (West 2006)).
III. CONCLUSION
For the reasons stated, we reverse the trial court’s
judgment dismissing the unlawful-use-of-weapons count and remand
for trial on that count. If defendant should be convicted,
defense counsel may make any arguments deemed appropriate regard-
ing merger of the Class 3 aggravated-battery conviction with any
Class 1 sentence imposed on count I. To avoid confusion, the
name of the charge in count I should conform to the substance of
the charge, i.e., "Unlawful Possession of a Weapon by a Person in
the Custody of a Department of Corrections Facility." We affirm
the conviction and sentence for aggravated battery, without
prejudice to any merger argument and the trial court's ruling
thereon.
Affirmed in part and reversed in part; cause remanded
with directions.
- 7 - MYERSCOUGH, P.J., and KNECHT, J., concur.
- 8 -