People v. Ames
| Decision Date | 17 July 2020 |
| Docket Number | No. 2-16-0722,2-16-0722 |
| Citation | 447 Ill.Dec. 592,2020 IL App (2d) 160722,174 N.E.3d 958 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Troyan D. AMES, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Thomas A. Lilien, and April D. Kentala, of State Appellate Defender's Office, of Elgin, for appellant.
Robert B. Berlin, State's Attorney, of Wheaton (Lisa Anne Hoffman and Edward R. Psenicka, Assistant State's Attorneys, of counsel), for the People.
¶ 1 After a jury trial, defendant, Troyan D. Ames, was convicted of unlawful possession of a firearm by a street gang member and aggravated unlawful use of a weapon. He received concurrent prison terms of six and nine years. His appeal presents the following issues for review: (1) whether the State's evidence established that defendant was a member of a street gang and (2) whether the trial court improperly enhanced the sentence for aggravated unlawful use of a weapon. For the reasons that follow, we vacate defendant's conviction of and sentence for unlawful possession of a firearm by a street gang member and reduce his sentence for aggravated unlawful use of a weapon from nine to seven years.
¶ 3 In July 2014, defendant and his two young children were passengers in a car driven by his wife when they were pulled over for a seat belt violation. The Carol Stream police officer who stopped the car called for backup because he purportedly smelled cannabis and his Law Enforcement Agencies Data System (LEADS) check indicated that defendant was a "criminal gang member." The police searched the car and discovered a loaded handgun in an inner pocket of a diaper bag.
¶ 4 According to the officers, defendant admitted that the gun was his and that he did not have a valid Firearm Owner's Identification (FOID) card. Defendant told the officers that he carried the gun for his family's protection, as he was a former gang member and had recently been attacked. His wife told the officers that defendant had been a Four Corner Hustler and had ceased his involvement with the gang a few years prior, when she agreed to marry him.
¶ 5 Defendant was arrested and charged by complaint with two counts of unlawful possession of a weapon by a felon and ticketed for a seat belt violation. The complaint was superseded by a two-count indictment charging defendant with unlawful possession of a firearm by a street gang member (UPF) ( 720 ILCS 5/24-1.8(a)(1) (West 2014)) and aggravated unlawful use of a weapon (AUUW) (id. § 24-1.6).
¶ 6 A three-day jury trial commenced in January 2016. The trial court admitted a certified record from the Illinois State Police indicating that defendant did not have a FOID card at the time of his arrest, and counsel for both parties stipulated that as of that time defendant was a convicted felon. Other evidence adduced at trial related primarily to whether defendant was a street gang member at the time of his arrest.
¶ 7 Du Page County police detective Patrick O'Neil was qualified as a gang expert by the court. O'Neil testified that the Four Corner Hustlers is a street gang faction that originated in Chicago in the late 1950s or early 1960s and had "currently active" members throughout Cook and Du Page Counties, including in Chicago, Bellwood, and Maywood. When asked about the type of "criminal conduct of the Four Corner Hustlers," the "type of crimes or course of criminal conduct," O'Neil answered that he was personally aware of "prior investigations with the Four Corner Hustlers on possession of firearms, narcotics offenses to include heroin, and then aggravated batteries."
¶ 8 Based on the totality of the evidence he reviewed, O'Neil opined that defendant was a member of the Four Corner Hustlers at the time of the incident. That evidence included screenshots of photos posted on defendant's Facebook page that depicted images "indicative of gang lifestyle"—for example, money, a gangster character from a movie, and the words "Hustler Spirit"—photos of defendant's tattoos, which, O'Neil testified, were consistent with symbols used by members of the Four Corner Hustlers and street gang members generally; information compiled by the Bellwood and Carol Stream Police Departments that indicated that defendant was a member of the Four Corner Hustlers as recently as June 2012; and photos of graffiti found in the jail cell defendant occupied from July 2014 to July 2015 that depicted symbols and language used by members of the Four Corner Hustlers to represent their street gang and establish their "turf."
¶ 9 On cross-examination, O'Neil admitted that he did not know when any of the photos on defendant's Facebook page had been taken or posted, when defendant's tattoos were applied, who vandalized the jail cell or when, or whether defendant had taken the necessary steps to leave a street gang. James Buckardt, the sheriff's deputy who found and photographed the jail cell graffiti one year after defendant had occupied the cell, also testified that he had "no idea whether or not the graffiti in the cell was there prior to defendant being moved into that cell" and agreed that it was "possible" that the graffiti predated defendant's assignment to that cell.
¶ 10 The jury found defendant guilty of both offenses, and the trial court denied defendant's posttrial motion. At sentencing, the presentence investigation report (PSI) revealed that defendant was convicted of conspiracy to commit first degree murder in 2004 and UPF in 2010, both classified as Class 2 felonies when they were committed. The trial court imposed the mandatory minimum prison term of six years for defendant's current UPF offense and a concurrent term of nine years for the AUUW offense. The court used the conspiracy-to-commit-first-degree-murder conviction both to classify defendant as a Class X offender and to elevate the sentence, apparently believing that it could avoid the prohibition against double enhancement by considering the specific "nature of the offense" to be "especially aggravating." Defendant did not file a postsentencing motion.
¶ 11 This appeal ensued. On May 13, 2019, we held the appeal in abeyance pending our supreme court's decision in People v. Murray , 2019 IL 123289, 440 Ill.Dec. 642, 155 N.E.3d 412. The supreme court entered its decision on October 18, 2019, and we requested supplemental briefing addressing the decision's impact on this case.
¶ 14 Defendant argues that the State failed to prove him guilty UPF, because it presented insufficient evidence that the Four Corner Hustlers was a "street gang" as defined in section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act (Act) ( 740 ILCS 147/10 (West 2012) ). Our review is governed by the following principles:
¶ 15 Defendant was charged with violating section 24-1.8(a)(1) of the Criminal Code of 2012 (Code). As we recently explained in People v. Figueroa , 2020 IL App (2d) 160650, ¶¶ 70-71, 441 Ill.Dec. 384, 156 N.E.3d 1133, section 24-1.8(a)(1) provides:
"Course or pattern of criminal activity," in turn, means:
According to defendant, although O'Neil, as the State's expert, testified that the Four Corner Hustlers was a street gang, the State failed to establish that the Four...
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