People v. Davis

• Citation: 199 Ill.2d 130,766 N.E.2d 641,262 Ill.Dec. 721
• Decision Date: 25 January 2002
• Docket Number: No. 90969.,90969.
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Joshua T. DAVIS, Appellant.
• Court: Supreme Court of Illinois

766 N.E.2d 641

199 Ill.2d 130

262 Ill.Dec. 721

The PEOPLE of the State of Illinois, Appellee, v. Joshua T. DAVIS, Appellant.

No. 90969.

Supreme Court of Illinois.

January 25, 2002.

Rehearing Denied April 1, 2002.

Robert Agostinelli, Deputy Defender, and Thomas A. Karalis, Assistant Defender, Office of the State Appellate Defender, Ottawa, for appellant.

James E. Ryan, Attorney General, Springfield, and Ted J. Hamer, State's Attorney, Cambridge (Joel D. Bertocchi, Solicitor General, William L. Browers and Russell K. Benton, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice MCMORROW delivered the opinion of the court:

Defendant Joshua T. Davis was found guilty of armed violence (720 ILCS 5/33A-2 (West 1992)), aggravated battery (great bodily harm) (720 ILCS 5/12-4 (West 1998)), and battery (720 ILCS 5/12-3 (West 1998)), after it was stipulated at a bench trial, in the circuit court of Henry County, that, on July 2, 1998, defendant shot BBs from a Crossman .177 caliber pellet/BB gun at Matthew Mulder and Cody Junior. Although Mulder sustained only minor injuries, Junior lost his left eye. The trial court found that the pellet/BB gun used by defendant was a category I dangerous weapon within the meaning of the armed violence statute (720 ILCS 5/33A-1(b) (West 1992)). Accordingly, the armed violence offense was a Class X felony for which defendant was sentenced to the minimum term of six years' imprisonment. Defendant was also sentenced to a concurrent jail term of 364 days on the simple battery conviction and was ordered to pay restitution.

On appeal, a divided court upheld the convictions and sentences. 318 Ill.App.3d 893, 252 Ill.Dec. 942, 743 N.E.2d 1098. We granted defendant's petition for leave to appeal. 134 Ill.2d R. 651(a).

The narrow issue before this court is one of first impression. We are asked to determine whether a pellet/BB gun, of the sort used in this case, is a dangerous weapon within the meaning of the armed violence statute.

ANALYSIS

At the time defendant committed the acts which led to his conviction, the armed violence statute provided as follows:

"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law." 720 ILCS 5/33A-2 (West 1992).¹

The legislature defined the term "dangerous weapon" in section 33A-1. Under that section, "[a] person is considered armed with a dangerous weapon * * * when he carries on or about his person or is otherwise armed with a category I or category II weapon." 720 ILCS 5/33A-1(a) (West 1992). A category I weapon is defined as "a pistol, revolver, rifle, shotgun, spring gun, or any other firearm, sawed-off shotgun, a stun gun or taser as defined in paragraph (a) of Section 24-1 of this Code, knife with a blade of at least 3 inches in length, dagger, dirk, switchblade knife, stiletto, or any other deadly or dangerous weapon or instrument of like nature." 720 ILCS 5/33A-1(b) (West 1992). A category II weapon is defined as "a bludgeon, blackjack, slungshot, sand-bag, sand-club, metal knuckles, billy or other dangerous weapon of like character." 720 ILCS 5/33A-1(c) (West 1992).

In addition to being charged with armed violence, defendant was charged with two counts of aggravated battery with a firearm, one count of aggravated battery (great bodily harm), and one count of battery. Prior to trial, defense counsel moved to dismiss the counts charging armed violence and aggravated battery with a firearm, arguing that the device used by defendant was not a "firearm" as defined in the Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West 2000)). The State opposed the motion, arguing that the device used by defendant, although used to fire BBs, had the capacity to fire tubular pellets and, therefore, was a firearm. See People v. Green, 50 Ill.App.3d 980, 9 Ill. Dec. 7, 366 N.E.2d 121 (1977).

The trial court initially granted defendant's motion, dismissing the counts charging armed violence and aggravated battery with a firearm. The court found that defendant used a "Crossman 357 model pellet/BB pistol which discharges ammunition by expulsion of compressed gas from a CO2 cylinder" and that "the ammunition used by defendant was a globular projectile (a BB), .177 calibre and the weapon had a maximum velocity of 500.2 feet per second." Although the weapon was also capable of firing a tubular projectile of the same caliber, the trial court concluded that the device used by defendant was not a firearm. Upon reconsideration, however, the court reinstated the armed violence count, finding that the device, though not a firearm, came under the statutory clause "a dangerous weapon or instrument of like character" in that it was "like a firearm."

On appeal, two justices agreed with the trial court that defendant possessed a category I dangerous weapon in that the device, though not a firearm, came within the scope of the "any other dangerous weapon or instrument" clause. One justice dissented in part. Applying the doctrine of ejusdem generis, the dissenting justice found that the clause at the end of the category I definition could not be interpreted as encompassing firearm-like weapons such as the pellet/BB gun in this case. The dissenting justice, instead, would have found defendant guilty of armed violence with a category II weapon, holding that the pellet/BB gun was of "like character" to a slung-shot. 318 Ill.App.3d at 898, 252 Ill.Dec. 942, 743 N.E.2d 1098 (Homer, P.J., concurring in part and dissenting in part).

Defendant contends that he was wrongly convicted of armed violence because the pellet/BB gun he used to commit an aggravated battery on Cody Junior was not a "dangerous weapon" within the meaning of the armed violence statute. Defendant argues that the trial and appellate courts erred when they found that the clause "any other deadly or dangerous weapon or instrument of like nature," at the end of the definition of a category I weapon, could be interpreted to encompass the pellet/BB gun he used. Defendant also denies that the pellet/BB gun comes within the scope of the category II definition.

Whether the trial and appellate courts have correctly interpreted the provisions of the armed violence statute is a question of law, which this court reviews de novo. In re D.D., 196 Ill.2d 405, 256 Ill.Dec. 870, 752 N.E.2d 1112 (2001)

. Our purpose when construing a statute is to ascertain and give effect to the intent of the legislature. People v. Latona, 184 Ill.2d 260, 269, 234 Ill.Dec. 801, 703 N.E.2d 901 (1998). Courts should consider the statute in its entirety, keeping in mind the subject it addresses and the legislature's apparent objective in enacting it. Gill v. Miller, 94 Ill.2d 52, 56, 67 Ill.Dec. 850, 445 N.E.2d 330 (1983). The most reliable indicator of legislative intent is the language of the statute, which, if plain and unambiguous, must be read without exception, limitation, or other condition. People v. Lavallier, 187 Ill.2d 464, 468, 241 Ill.Dec. 529, 719 N.E.2d 658 (1999); People v. Robinson, 172 Ill.2d 452, 457, 217 Ill.Dec. 729, 667 N.E.2d 1305 (1996). Moreover, criminal or penal statutes are to be strictly construed in favor of the accused, and nothing should be taken by intendment or implication beyond the obvious or literal meaning of the statute. People v. Laubscher, 183 Ill.2d 330, 337, 233 Ill.Dec. 639, 701 N.E.2d 489 (1998); People v. Woodard, 175 Ill.2d 435, 444, 222 Ill.Dec. 401, 677 N.E.2d 935 (1997); People v. Shinkle, 128 Ill.2d 480, 486, 132 Ill.Dec. 432, 539 N.E.2d 1238 (1989).

Applying these principles to the present case, we have carefully examined the statutory definition of a category I weapon to determine whether the pellet/BB gun used by defendant in this case properly falls within its parameters. We find that it does not.

In defining a category I weapon, the legislature specifically named several weapons—pistol, revolver, rifle, shotgun, spring gun, sawed-off shotgun, stun gun or taser, knife with a blade of at least three inches in length, dagger, dirk, switchblade knife, and stiletto. Pellet and BB guns are not specifically referred to in this list of weapons and, consequently, are not per se dangerous weapons. People v. Ptak, 193 Ill.App.3d 782, 785, 140 Ill.Dec. 826, 550 N.E.2d 711 (1990) (any weapon specifically listed in the definition is considered to be a per se dangerous weapon). However, in addition to individually naming certain weapons, the provision also uses two inclusive clauses—"any other firearm" and "any other deadly or dangerous weapon or instrument of like nature." We will address each clause separately.

The first clause, "any other firearm," comes in the middle of the provision and at the end of a list of devices generally recognized as "firearms." The lower courts found that the pellet/BB gun used by defendant did not fit within this clause because it was not a "firearm." We agree.

In section 2-7.5 of the Criminal Code of 1961 (720 ILCS 5/2-7.5 (West 2000)), the legislature, in reference to "firearms," states:

"Except as otherwise provided in a specific Section, `firearm' has the meaning ascribed to it in Section 1.1 of the Firearm Owners Identification Card Act."

The Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West 2000)) defines "[f]irearm" as "any device, by whatever name known, which is designed to expel a projectile or projectiles by the action of an explosion, expansion of gas or escape of gas; excluding, however: (1) any pneumatic gun, spring gun, paint ball gun or B-B gun which either expels a single globular projectile not exceeding .18 inch in diameter and which has a maximum muzzle velocity of less than 700 feet per second or breakable paint balls containing washable marking colors."

At the same time, the Air Rifle Act (720 ILCS 535/0.01 (West 2000)) defines "[a]ir rifle" as "any air gun, air pistol, spring gun, spring pistol, B-B gun, paint ball gun, pellet gun or any...