2019 IL App (1st) 163182
SIXTH DIVISION MARCH 29, 2019 No. 1-16-3182
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 20308 ) ROBERT SCHULTZ, ) Honorable ) Thaddeus L. Wilson, Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Connors concurred in the judgment.
OPINION
¶1 The defendant-appellant Robert Schultz (defendant) seeks a reduction of his Class 2
conviction for unlawful use or possession of a weapon by a felon (UUWF) to a Class 3 offense,
because he claims that the State did not prove that he had a prior conviction for a “forcible
felony.” For the following reasons, we reject the defendant’s argument and affirm the judgment
of the circuit court of Cook County.
¶2 BACKGROUND
¶3 In December 2015, the defendant was charged by indictment with seven counts,
including two counts of UUWF (counts 1 and 2) and five counts of aggravated unlawful use of a
weapon (counts 3 through 5). With respect to Count 1, which is the only relevant count in this
appeal, the indictment alleged that the defendant “committed the offense of unlawful use or
possession of a weapon by a felon in that he knowingly possessed on or about his person any
firearm, after having been previously convicted of the felony offense of felony firearm under 1-16-3182
case number 12-009438 (Wayne County, Michigan), in violation of Chapter 720 Act 4 Section
24-1.1(a) of the Illinois Compiled Statutes ***.” The indictment also specified that “The State
shall seek to sentence him as a Class 2 offender in that he has been previously convicted of
felony firearm under case number 12-009438 (Wayne County, Michigan).”
¶4 The circuit court conducted a bench trial on October 6, 2016. The State first called a
witness from the Illinois State Police Firearm Services Bureau, who testified that there was no
record of the defendant ever having a Firearm Owner Identification Card or concealed carry
license. The State then called the defendant’s arresting officer, Michael Power. Officer Power
testified that he was driving an unmarked police vehicle when he noticed a number of
individuals, including the defendant, loitering near a van. When Officer Power approached the
van to conduct a field interview, the defendant removed a handgun from his waistband and
“tossed it underneath the car onto the ground.” Officer Power arrested the defendant and
recovered the handgun at the scene.
¶5 In addition to this testimony, the State also offered into evidence the following
stipulation: “It is hereby stipulated by and through the parties, the defendant, Robert Schultz, has
prior felony convictions for the offenses of assault with a dangerous weapon and carrying a
firearm while committing or attempting to commit a felony in Wayne County, Michigan, under
Case 12-009438.” Defense counsel agreed that this was “So stipulated.” The State rested
following the stipulation.
¶6 The defendant called a single witness, Ronnie Burnett, who testified that he was with the
defendant at the time of his arrest but denied seeing the defendant with a gun. The defendant
elected not to testify.
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¶7 After closing arguments, the trial court found the defendant guilty of all counts. The
court ordered a pre-sentencing investigation report (PSI report) and scheduled post-trial motions
and sentencing.
¶8 The defendant’s PSI report reflected a prior conviction in Michigan for “Assault With a
Dangerous Weapon” under Case #1200943801. Attached to the PSI report is a “Criminal History
Record” from Michigan, reflecting that in January 2013 defendant was convicted of felony
“assault with a dangerous weapon” under section 750.82 of the Michigan Penal Code. MCL
750.82.
¶9 On November 18, 2016, the court denied the defendant’s motion for new trial and
proceeded to sentencing. In aggravation, the State referenced the two prior Michigan convictions
in the trial stipulation but did not offer specific evidence about the circumstances of either
conviction. The State requested a sentence in the range of three to seven years.
¶ 10 After hearing evidence in mitigation, the court determined that all counts merged into
count 1 for UUWF, and sentenced the defendant on that count to four years in the Illinois
Department of Corrections, plus two years of mandatory supervised release. The transcript does
not reflect that the court orally stated whether it found that the offense was a Class 2 or Class 3
felony. However, the court’s written sentencing order specified a Class 2 conviction for UUWF.
¶ 11 After the defendant’s motion to reconsider sentence was denied, defendant filed a timely
notice of appeal. Accordingly, we have jurisdiction. Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014).
¶ 12 ANALYSIS
¶ 13 On appeal, the defendant does not dispute that he possessed a firearm on the date of his
arrest. Rather, he raises a single sentencing issue. He asserts that his Class 2 UUWF conviction
should be reduced to a Class 3 conviction, because the State failed to prove that either of the
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prior Michigan convictions referenced in the trial stipulation constituted a “forcible felony.” See
720 ILCS 5/24-1.1(e) (West 2016) (violation of the UUWF statute by a person “who has been
convicted of a forcible felony” is a Class 2 felony, rather than a Class 3 offense).
¶ 14 The defendant acknowledges the trial stipulation referencing two prior Michigan
convictions, but he argues that the State failed to prove that either of the stipulated convictions
was a “forcible felony,” as that term is defined by section 2-8 of the Criminal Code of 2012
(Code) (720 ILCS 5/2-8 (West 2016)). He claims that because neither of the prior Michigan
offenses is explicitly named as a “forcible felony” in section 2-8, the State was required to offer
additional evidence regarding the circumstances of the prior crimes, to prove that either fell
within the so-called “residual clause” of section 2-8 of the Code. See 720 ILCS 5/2-8 (West
2016) (extending the definition of a forcible felony to “any other felony which involves the use
or threat of physical force or violence against any individual”). The defendant thus argues that
the State failed to meet its burden to prove a prior “forcible felony,” as necessary to warrant a
Class 2 UUWF conviction.
¶ 15 The defendant acknowledges that this issue was forfeited, as he did not raise this
argument in the trial court. Nonetheless, he urges that we should consider it under the plain-error
rule, which “bypasses normal forfeiture principles and allows a reviewing court to consider
unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d 598, 613
(2010). The defendant relies on the second prong of the plain error doctrine, which applies if “a
clear or obvious error occurred and that error is so serious that it affected the fairness of the
defendant’s trial and challenged the integrity of the judicial process.” Id.
¶ 16 The State responds that there was no error, and thus no plain error. See id. (“The first step
of plain-error review is determining whether any error occurred.”) The State urges that the trial
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stipulation was sufficient to support his Class 2 UUWF conviction, even without evidence of the
specific facts underlying the prior Michigan convictions, because both Michigan convictions
were “inherently forcible felonies.” That is, the State contends that either of the prior Michigan
offenses fell within the residual clause of section 2-8, and thus both were forcible felonies
supporting enhancement to a Class 2 conviction.
¶ 17 The sentencing provision of the UUWF statute states:
“Violation of this Section by a person not confined in a penal
institution shall be a Class 3 felony for which the person shall be
sentenced to no less than 2 years and no more than 10 years ***.
Violation of this Section by a person not confined in a penal
institution who has been convicted of a forcible felony *** is a
Class 2 felony for which the person shall be sentenced to no less
than 3 years and not more than 14 years.” (Emphasis added.) 720
ILCS 5/24-1.1(e) (West 2016).
In other words, “the offense of unlawful use of a weapon by a felon is enhanced from a Class 3
felony to a Class 2 felony when the defendant has previously been convicted of a forcible felony.
[Citation.]” People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003).
¶ 18 The term “forcible felony” is defined by section 2-8 of the Code. 720 ILCS 5/2-8 (West
2016). Section 2-8 of the Code first sets forth a list of certain enumerated offenses that constitute
forcible felonies, 1 which is followed by a residual clause that encompasses “any other felony
1 The enumerated offenses are “treason, first degree murder, second degree murder, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery, burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated battery resulting in great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8 (West 2016).
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which involves the use or threat of physical violence against any individual.” 720 ILCS 5/2-8
(West 2016).
¶ 19 The parties agree that neither of the Michigan convictions referenced in the stipulation at
defendant’s trial is included in section 2-8’s list of enumerated offenses. Thus, the crux of this
appeal is whether either of those prior Michigan convictions falls within the residual clause of
section 2-8. “Interpretation of the forcible felony statute is an issue of law, which we review de
novo.” People v. Sanderson, 2016 IL App (1st) 141381, ¶ 5 (citing People v. Belk, 203 Ill. 2d
187, 192 (2003)).
¶ 20 “An unenumerated felony falls within the residual clause if the defendant ‘contemplated
that the use of force or violence against an individual might be involved and [was] willing to use
such force or violence.’ ” (Emphasis in original.) Belk, 203 Ill. 2d 187, 196 (2003). But the
defendant need not actually inflict physical injury. [Citation.]” Sanderson, 2016 IL App (1st)
141381, ¶ 5.
¶ 21 “[C]rimes fall under the residual clause in one of two ways. First, where one of a crime’s
elements is ‘a specific intent’ to carry out a violent act, every instance of that crime ‘necessarily
qualifies’ as a forcible felony.” Id. ¶ 6 (quoting People v. Thomas, 407 Ill. App. 3d at 139-40).
Thus, certain crimes, by definition, are necessarily considered forcible felonies, even absent
specific evidence of the circumstances of the prior offense. For example, in Thomas, the
defendant challenged his conviction under the armed habitual criminal statute (which required
two predicate forcible felonies), on the grounds that “proof of his previous conviction for
attempted murder did not prove that he committed a forcible felony.” 407 Ill. App. 3d at 139.
Our court thus “review[ed] de novo the question of law as to whether evidence that a defendant
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had a prior conviction for attempted murder, without any details about the crime, proves that he
committed a forcible felony.” Id. We held that attempted murder is necessarily a forcible felony:
“Because every attempted murder involves a specific intent to
cause death, the trier of fact who finds a person guilty of attempted
murder must find that the guilty person contemplated the use of
sufficient force to cause very serious injury, injury that can lead to
death. Accordingly, we hold that every attempted murder qualifies
as a forcible felony for purposes of the armed habitual criminal
statute ***.” Id. at 140.
¶ 22 Thus, to determine if a crime is inherently a forcible felony, we perform “an analysis of
the elements of the underlying offense to determine whether proof of those elements necessarily
entails the use or threat of force or violence against an individual.” Sanderson, 2016 IL App (1st)
141381, ¶ 6. Under that approach, we have held that attempted armed robbery is an “inherently
forcible felony” because it “requires evidence that a defendant possessed the specific intent to
knowingly take property from another by threat or use of force while armed with a firearm ***.”
People v. Brown, 2017 IL App (1st) 150146, ¶¶ 19-22. We have also held that vehicular
hijacking is an inherently forcible felony, because “the act of taking a motor vehicle from a
person by the use of force or by threatening the imminent use of force necessarily involves at
least the contemplation that violence might be necessary to carry out the crime.” People v.
Wooden, 2014 IL App (1st) 130907, ¶ 20.
¶ 23 “The second way a felony can qualify as a forcible felony, even if a crime does not have
violent intent as an element, is if the State proves that ‘under the particular facts of this case,’ the
defendant contemplated the use of force and was willing to use it.” Sanderson, 2016 IL App (1st)
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141381, ¶ 7 (quoting Belk, 203 Ill. 2d at 195). Our supreme court’s decision in Belk illustrates
this principle. The Belk defendant stole a vehicle and fled from police before crashing the
vehicle, resulting in two deaths. 203 Ill. 2d at 189. The defendant was convicted of felony
murder, based on the predicate felony of aggravated possession of a stolen motor vehicle. Id. at
191. The defendant argued that the predicate offense was not a forcible felony, as required to
implicate the felony-murder statute. Id.
¶ 24 Because aggravated possession of a stolen motor vehicle was not one of the specifically
enumerated felonies in section 2-8 of the Code, our supreme court framed the issue as “whether,
under the facts of this case, Belk’s aggravated possession of a stolen motor vehicle involved the
use or threat of physical force or violence against any individual.” Id. at 193. Our supreme court
discussed whether there was “any evidence which would give rise to an inference that at some
point during his attempt to elude the police [defendant] contemplated that escape might involve
the use of force or violence against an individual.” Id. at 195. The court answered in the
negative, finding that, although Belk may have “acted recklessly,” the evidence “does not
support an inference that Belk contemplated that the use of force or violence against an
individual might be necessary in order for him to accomplish his escape.” (Emphasis in original.)
Id. Thus, our supreme court held that there was not a forcible felony supporting a felony murder
conviction. Id. at 197.
¶ 25 In addition to Belk, defendant relies on more recent decisions of our court holding that, if
a prior conviction was not inherently a forcible felony, then the State must offer specific
evidence to show that the prior crime involved the use or threat of force. Thus, in Sanderson,
2016 IL App (1st) 141381, our court reversed a conviction for the offense of armed habitual
criminal, to the extent it was premised upon a prior conviction for attempted residential burglary.
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We held that the attempted burglary was “not inherently a forcible felony, since its elements do
not include a specific intent to carry out a violent act.” Id. ¶ 9. Furthermore, the State offered “no
evidence that, under the particular facts of this case, Sanderson contemplated the use of force.”
Id. ¶ 11. Without such evidence, the State could not prove the defendant’s “willingness to use
violence against another, which would be necessary for his conviction to constitute a forcible
felony.” Id. ¶ 12.
¶ 26 The defendant also directs us to People v. Carmichael, 343 Ill. App. 3d 855 (2003).
Similar to the instant appeal, Carmichael concerned whether a prior stipulated conviction was a
forcible felony that supported enhancement of a UUWF conviction to a Class 2 felony. Id. at
856-57. The Carmichael defendant’s trial counsel stipulated that defendant had a prior
conviction for armed violence, but the State did not introduce evidence regarding the
circumstances of that prior offense. Id. at 858. We reasoned that, since the “record [was] silent as
to the circumstances surrounding the defendant’s armed violence conviction,” we could not
assess whether the defendant “contemplated that the use or threat of force or violence might be
necessary to carry out” the prior crime. Id. at 861. We further determined that armed violence
was not an “inherently violent” offense, as it could be “committed by merely possessing a
firearm” during the commission of a non-violent felony. Id. 2 Thus, we concluded that the trial
court erred in enhancing the UUWF conviction to a Class 2 felony. Id.
¶ 27 The defendant’s opening brief relies on Carmichael and Sanderson to urge that the State
was required to offer proof of the particular facts and circumstances of the prior Michigan
convictions, beyond the trial stipulation, to prove that either offense was a forcible felony.
However, the defendant’s argument ignores our precedent holding that such particularized proof
2 Further, the parties in Carmichael agreed on appeal that the armed violence conviction was “based upon [defendant’s] commission of the predicate felony of possession of a controlled substance.” Id. at 860.
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is not necessary, if a defendant’s prior conviction was for an inherently forcible felony. Indeed,
the Sanderson decision explicitly recognizes that “crimes fall under the residual clause [of
section 2-8] in one of two ways”; either the elements are such that “every instance of that crime
necessarily qualifies as a forcible felony,” or the State can prove that “under the particular facts
of this case, the defendant contemplated the use of force and was willing to use it.” (Internal
quotation marks omitted.) Sanderson, 2016 IL App (1st) 141381, ¶¶ 6-7.
¶ 28 The State urges that either of the two prior Michigan convictions referenced in the trial
stipulation inherently constitutes a forcible felony. First, to the extent the stipulation referred to
the defendant’s prior felony conviction for “assault with a dangerous weapon,” the State argues
that this stipulation (as well as the PSI report and other documents in the record) prove that he
was convicted under Michigan’s felonious assault statute, section 750.82 of the Michigan Penal
Code (MCL 750.82). The State urges that the language of that statute, as well as Michigan case
law defining “assault,” establish that this conviction necessarily qualifies as a forcible felony.
¶ 29 In response, the defendant’s reply brief first argues that the State cannot rely on any
Michigan statute because “the prosecutor did not refer to the Michigan statutes [the defendant]
violated” at trial or during sentencing. The defendant does not dispute that the PSI report and
other record documents reflect that he was, in fact, convicted under MCL 750.82. However, he
argues that “[b]ecause the criminal history report was not introduced at trial and the prosecutor
never referred to the particular [Michigan] statutes *** at sentencing, it is improper for the State
to rely on them” in this appeal. The defendant essentially argues that, since the trial stipulation
did not cite a specific statute, the State cannot refer to any statute in its argument before our
court.
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¶ 30 We disagree. At trial, the defendant stipulated that he was convicted in Michigan of two
felonies, including “assault with a dangerous weapon.” We recognize that the State was
somewhat careless in crafting the wording of the stipulation, to the extent that it failed to include
a citation to the precise Michigan statute underlying that prior conviction. We certainly do not
mean to encourage that practice, and we admonish the State to be more precise in such
stipulations, especially when referencing prior out-of-state convictions. Nonetheless, we do not
find that this omission leads to reversible error in this case, as the defendant does not cite (and
we are not aware of) any authority that would preclude the trial court from taking notice of the
Michigan legal authorities that define the stipulated offense. As discussed below, those
authorities make clear that a felony for “assault with a dangerous” weapon in Michigan would be
premised under MCL 750.82. Further, the defendant does not dispute that the trial stipulation
referred to his prior conviction under MCL 750.82. 3
¶ 31 The defendant’s reply otherwise suggests that it is improper for our court to consider
whether an out-of-state statute describes a “forcible felony” for purposes of section 2-8’s residual
clause. He acknowledges that “Illinois courts have evaluated Illinois statutes” to determine if an
offense is inherently a forcible felony under section 2-8, but points out that “the State cites no
cases where out of state statutes were examined.” We reject the defendant’s suggestion. Our
precedent indicates that we may conduct “an analysis of the elements of the underlying offense
3 We note that other record documents make clear that the defendant was, in fact, convicted under MCL 750.82. The PSI report references a conviction for “Assault with a Dangerous Weapon” in Case #1200943801; the Michigan criminal history records state (under the same case number) that he was convicted of “Assault With [a] Dangerous Weapon,” explicitly referencing “750.82” as the statutory basis for that conviction. The defendant does not dispute the accuracy of these records. We recognize that these sentencing documents could not be relied upon by the trial court as evidence that the prior conviction was for a violation of MCL 750.82; nonetheless, they undermine any suggestion that the stipulated conviction at issue could have referred to some other offense.
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to determine whether proof of those elements necessarily entails the use or threat of force or
violence.” Sanderson, 2016 IL App (1st) 141381, ¶ 6. The defendant does not cite any authority
suggesting that we are precluded from applying that same analysis to crimes committed in other
jurisdictions. Moreover, nothing in section 2-8 of the Code suggests that only a prior conviction
under Illinois law may constitute a “felony which involves the use or threat of physical force or
violence against any individual.” 720 ILCS 5/2-8 (West 2016). Similarly, the UUWF statute does
not suggest that only Illinois forcible felonies may support a sentencing enhancement to a Class
2 offense. 720 ILCS 5/24-1.1(e) (West 2016).
¶ 32 We thus reach the question of whether the defendant’s prior Michigan conviction for
“assault with a dangerous weapon” constituted a forcible felony. The defendant urges that, even
assuming that he was “found guilty of felonious assault pursuant to [MCL 750.82], this offense
does not inherently constitute a forcible felony.” As set forth below, we disagree.
¶ 33 Section 750.82 of the Michigan Penal Code is entitled “Felonious assault; violation in a
weapon free school zone” and provides, in relevant part:
“Except as provided in subsection (2), 4 a person who assaults
another person with a gun, revolver, pistol, knife, iron bar, club,
brass knuckles, or other dangerous weapon without intending to
commit murder or to inflict great bodily harm less than murder is
guilty of a felony punishable by imprisonment for not more than 4
years or a fine of not more than $2,000.00, or both.” MCL 750.82.
¶ 34 We first note, as recognized by the parties, that Michigan lacks a statutory definition for
the crime of simple “assault.” However, in People v. Gardner, 402 Mich. 460 (1978), the
4 Subsection (2) refers to a violation of subsection (1) “in a weapon free school zone.” MCL 750.82.
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Michigan Supreme Court approved of three separate definitions of criminal assault, derived from
three different treatises. First, the Michigan supreme court stated: “We adopt what Perkins on
Criminal Law *** says is the majority rule, namely a simple criminal assault is made out from
either an attempt to commit a battery or an unlawful act which places another in reasonable
apprehension of receiving an immediate battery.” (Internal quotation marks omitted). Id. at 479.
The Gardner court further approved definitions from two additional treatises. Id. (“We also hold
that either the Cyclopedia or the Bishop definition *** is an adequate definition of a form of
assault and that both forms are actionable in the criminal law.”) Thus, the Michigan Supreme
Court also approved two other definitions: (1) “An assault is any attempt or offer with force or
violence to do a corporal hurt to another, whether from malice or wantonness, with such
circumstances as denote at the time an intention to do it, coupled with a present ability to carry
such intention into effect”; and (2): “An assault is any unlawful physical force *** creating a
reasonable apprehension of immediate injury to a human being.” (Internal quotation marks
omitted.) Id.
¶ 35 The State notes that two of the three definitions of assault approved in Gardner include
the term “force,” and thus argues: “The fact that ‘force’ is a defined element of assault shows
that some measure of violence was not only contemplated but carried out by defendant.” The
State thus suggests that Gardner establishes that any assault is necessarily a forcible felony.
¶ 36 The defendant’s reply brief emphasizes the remaining definition approved by Gardner,
i.e., that “a simple criminal assault is made out from either an attempt to commit a battery or an
unlawful act which places another in reasonable apprehension of receiving an immediate
battery.” Id. The defendant argues that because this definition does not “include either the use or
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threat of force” as an element, Gardner establishes “that a Michigan felonious assault conviction
does not inherently constitute a forcible felony in Illinois.”
¶ 37 We disagree. First, we are not convinced that the Gardner definition relied upon by
defendant does not describe an inherently forcible act. That definition states that a simple
criminal assault is an “either an attempt to commit a battery or an unlawful act which places
another in reasonable apprehension of receiving an immediate battery.” Id. We recognize that
this definition does not use the precise terms “threat” or “force.” Yet, even under this definition,
we fail to see how one can attempt to commit a battery, or place another in reasonable
apprehension of receiving an immediate battery, without contemplating or threatening the use of
force. Notably, defendant does not even attempt to argue how one could commit an assault under
this definition without contemplating or threatening force or violence.
¶ 38 More importantly, whereas Gardner concerned the common law definition of simple
assault, in this case, defendant stipulated to a Michigan felony conviction for “assault with a
dangerous weapon.” As discussed, the record makes clear that this referred to defendant’s
conviction under Michigan’s “felonious assault” statute, MCL 750.82. 5 Michigan authorities
make clear that a conviction under this statute requires additional elements beyond the
commission of the “simple assault” defined in Gardner.
¶ 39 Significantly, in a decision just one year after Gardner, the Michigan Supreme Court held
that, in prosecutions for felonious assault under MCL 750.82, “the jury should be instructed that
there must be either an intent to injure or an intent to put the victim in reasonable fear or
apprehension of an immediate battery.” People v. Johnson, 407 Mich. 196, 210 (1979). Thus,
Michigan courts now recognize that “[t]o perpetrate a felonious assault, a defendant must
5 Michigan courts refer to this statutory offense as either “assault with a dangerous weapon” or “felonious assault.” See, e.g., People v. Bosca, 310 Mich. App. 1 (using both terms to refer to violations of MCL 750.82).
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commit ‘(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the
victim in reasonable apprehension of an immediate battery.’ [Citation.]” People v. Nix, 301
Mich. App. 195, 230 (2013); see also People v. Bosca, 310 Mich. App. 1, 20 (2015) (“ ‘The
elements of [assault with a dangerous weapon] are (1) an assault, (2) with a dangerous weapon,
and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate
battery. [Citation.]”).
¶ 40 We note that this case law precedent refutes the argument in the defendant’s reply brief
that relies upon the portion of the felonious assault statute specifying that is it committed
“without intending to commit murder or to inflict great bodily harm less than murder.”
(Emphasis added.) M.C.L.A. 750.82. The defendant suggests that “it cannot be said that a
felonious assault conviction is inherently violent *** where an element of felonious assault is
that the defendant lack an intent to inflict severe bodily harm.” The defendant’s argument is
without merit, as it confuses the lack of intent to kill or inflict serious bodily harm as equivalent
to the lack of any intent to use or threaten force. However, the Michigan case law precedent
clarifies that a conviction under MCL 750.82 requires a finding that defendant intended to injure
or place the victim in reasonable apprehension of an immediate battery.
¶ 41 Under this precedent, it is apparent that defendant’s stipulated Michigan conviction for
assault with a dangerous weapon included findings that defendant had made “either an attempt to
commit a battery or an unlawful act which place[d] another in reasonable apprehension of
receiving an immediate battery,” that he did so with a dangerous weapon, and that he acted with
“either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an
immediate battery.” Johnson, 407 Mich. at 210; MCL 750.82. Especially considering the
requisite intent for this offense, we cannot see, and the defendant does not attempt to articulate,
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how one could violate MCL 750.82 without “the use or threat of physical force or violence,”
within the meaning of section 2-8 of the Code. 720 ILCS 5/2-8 (West 2016). Thus, upon
considering relevant Michigan authorities, we hold that defendant’s prior conviction for violation
of MCL 750.82 was inherently a forcible felony pursuant to section 2-8 of the Code.
¶ 42 As the State points out, it needed only to prove that one of the two stipulated prior
Michigan convictions was a forcible felony, in order to support the enhancement of the
defendant’s UUWF conviction to a Class 2 offense. See 720 ILCS 5/24-1.1(e). (West 2016). As
we have determined that the defendant’s stipulated conviction for “assault with a dangerous
weapon” constituted a forcible felony, we need not address the parties’ arguments regarding the
other prior Michigan conviction referenced in the trial stipulation, for “carrying a firearm while
committing or attempting to commit a felony.”
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 44 Affirmed.