People v. Hunter

• Decision Date: 30 June 2016
• Docket Number: No. 1–14–1904.,1–14–1904.
• Citation: 407 Ill.Dec. 1,62 N.E.3d 246
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Kevin HUNTER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

62 N.E.3d 246

407 Ill.Dec. 1

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Kevin HUNTER, Defendant–Appellant.

No. 1–14–1904.

Appellate Court of Illinois, First District, Sixth Division.

Filed June 30, 2016.

Rehearing Denied Aug. 3, 2016.

Modified Upon Denial of Rehearing Aug. 12, 2016.

Michael J. Pelletier and Patricia Mysza, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Ruth I. Gudino, Assistant State's Attorney, of counsel), for the People.

OPINION

Presiding Justice ROCHFORD delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, defendant, Kevin Hunter, was convicted of armed robbery, aggravated kidnaping, and aggravated vehicular hijacking, and sentenced to concurrent terms of 21 years' imprisonment, which included a 15–year enhancement for defendant's use of a firearm. Defendant, age 16 at the time of the offense, was tried and sentenced as an adult in accordance with the automatic transfer provision set forth in section 5–130 of the Juvenile Court Act of 1987(Act) (705 ILCS 405/5–130 (West 2010) ). On appeal, defendant contends that: (1) the State failed to prove beyond a reasonable doubt that he was armed with a firearm during the charged offenses; (2) the trial court erred in failing to conduct a Krankel inquiry; (3) his case should be remanded for resentencing under new provisions contained in Public Act 99–69, section 10 (eff. Jan. 1, 2016) (adding 730 ILCS 5/5–4.5–105), which took effect during the pendency of his appeal; (4) his case should be remanded for resentencing in the juvenile court under Public Act 99–258, section 5 (eff. Jan. 1, 2016) (amending 705 ILCS 405/5–130, 5–805 (West 2014)), which also took effect during the pendency of his appeal; and (5) the mittimus must be corrected to reflect the proper credit for presentence incarceration. For the following reasons, we affirm the judgment of the trial court and order the mittimus corrected.

¶ 2 I. BACKGROUND

¶ 3 We set forth the facts necessary to provide background for defendant's first claim of error. Additional facts relevant to other issues on appeal will be included as needed throughout our opinion.

¶ 4 Defendant was charged with aggravated kidnaping, armed robbery, and aggravated vehicular hijacking. At trial, Steven Maxwell, testified that he parked his Jeep on the north side of Chicago at approximately 3:45 a.m. on May 17, 2011, after spending several hours at a bar and drinking one beer. While walking home down a dark street, he was approached by three men, including defendant, who Mr. Maxwell identified in court. One of the men asked Mr. Maxwell: “what you got.” Then, defendant “flashed a gun” for a few seconds, pulling it slightly out of his coat and placing it near his chest or stomach. The gun was “squared off” and resembled a “Glock.” Mr. Maxwell, who had a Firearm Owner's Identification (FOID) card and had previously seen a real gun, thought the gun looked real. The first man said that he knew Mr. Maxwell had a car and ordered him to surrender his keys, phone, and wallet. Mr. Maxwell complied but asked for his FOID card, which the man returned. Mr. Maxwell walked to his Jeep with the three men, and the first man said to Mr. Maxwell: “you're coming, too.” The third man said that he “didn't want any part of it,” and walked away.

¶ 5 Defendant and the first man ordered Mr. Maxwell to enter the rear driver's side door and to put on a seatbelt. The first man sat in the driver's seat and defendant sat in the front passenger seat. They engaged the child safety locks and told Mr. Maxwell that they would drive around and drop him off “somewhere,” but would not hurt him. The men asked Mr. Maxwell how far they were from his house and for directions to drive south. Defendant told Mr. Maxwell not to lie because “they knew where [he] lived and where [his] family lived.” Mr. Maxwell did not see the gun again, but defendant repeatedly threatened to shoot him.

¶ 6 After “circling around” for approximately three hours, the first man drove to a gas station and put gas in the Jeep. No other customers were present. Defendant stayed in the vehicle but ordered Mr. Maxwell to purchase a “Black and Mild” (a type of cigar). Mr. Maxwell walked to the window of the gas station to make the purchase, but did not ask the clerk for help because he had to shout his request and worried that the men would hear him. He did not try to run because he thought that the men would catch him. He returned to the Jeep and the men continued driving until they released him at 47th and State Streets. Mr. Maxwell went to a police station and reported what had happened. At approximately 9:30 a.m., he went to 75th and State Streets, where he saw his Jeep on the sidewalk, resting on its side against a wall. Later that day, Mr. Maxwell identified defendant in a physical lineup.

¶ 7 Officer Chan testified that he was on patrol at approximately 7:30 a.m. on May 17, 2011. He heard tires screeching and drove toward 75th Street and Indiana Avenue, where he saw a Jeep “flipped over on the sidewalk.” Defendant exited the driver's side door, jumped from the car, and fled. Officer Chan detained defendant less than two blocks away and conducted a pat down. Afterwards, an evidence technician was called to process the Jeep.

¶ 8 The State published a video of the crash, which was entered into evidence. The defense did not move for a directed verdict, and defendant did not testify.

¶ 9 In finding defendant guilty of aggravated kidnaping, armed robbery, and aggravated vehicular hijacking while armed with a firearm, the trial court stated that Mr. Maxwell was “very credible,” and noted that he had described the appearance of defendant's gun and testified that it looked real. The trial court also observed that Mr. Maxwell had a FOID card and “was aware of weapons.”

¶ 10 At the hearing on defendant's motion to vacate the convictions, defense counsel contended that Mr. Maxwell was “mistaken” when he testified that defendant had been armed with a firearm. Counsel argued, inter alia, that Mr. Maxwell had spent the night in a bar, encountered defendant on a dark street, and had seen the alleged weapon for only a few seconds. According to counsel, the State had attempted to portray Mr. Maxwell as a firearms expert, but no testimony established that he could distinguish between real and fake firearms. In response, the State contended that Mr. Maxwell's FOID card and his testimony “demonstrated his familiarity with guns.” The trial court denied defendant's motion, stating:

“The Court finds that the victim was credible and he was in belief of being * * * shot [by] a firearm and he did say on direct what type. It was a Glock. The victim was the person who possessed the [FOID] card and indicates some familiarity with the weapons. The Court finds it was long enough of an observation of the flash from this item that was in defendant's hands and what he described later on as a Glock.

The Court finds that it is sufficient and beyond a reasonable doubt that * * * this offense occurred with a firearm.”

¶ 11 Following a sentencing hearing, the trial court imposed concurrent terms of 21 years' imprisonment for each offense on May 29, 2014. The 21–year sentence included a mandatory 15–year sentencing enhancement for defendant's use of a firearm.

¶ 12 II. ANALYSIS

¶ 13 A. Sufficiency of the Evidence

¶ 14 On appeal, defendant first contends that the State failed to prove beyond a reasonable doubt that he was armed with a firearm during the charged offenses. Defendant submits that the State neither produced the gun at trial nor presented evidence that the gun could have been fired. Consequently, the only evidence of a firearm was the victim's testimony, which defendant argues is insufficient to sustain his conviction. Defendant observes that Mr. Maxwell saw the gun for just a few seconds, when defendant “slightly” pulled it from his jacket during their encounter on a dark street. Mr. Maxwell did not describe the color or size of the gun, and only testified that the gun looked like a “Glock” on redirect examination. Thus, according to defendant, Mr. Maxwell may have seen a BB gun, air pistol, or other device that is excluded from the statutory definition of a firearm. Additionally, defendant argues that the trial court improperly inferred that Mr. Maxwell's FOID card bolstered his ability to identify a firearm. Under these circumstances, defendant submits that his repeated threats to shoot the victim were merely intended to “secure [his] cooperation,” and do not establish that defendant was armed.

¶ 15 The standard of review on a challenge to the sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Brown, 2013 IL 114196, ¶ 48, 377 Ill.Dec. 1, 1 N.E.3d 888. A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility of witnesses or the weight of the evidence. Id. To sustain a conviction, “[i]t is sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt.” People v. Hall, 194 Ill.2d 305, 330, 252 Ill.Dec. 653, 743 N.E.2d 521 (2000). A defendant's conviction will be reversed only if the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. People v. Belknap, 2014 IL 117094, ¶ 67, 387 Ill.Dec. 633, 23 N.E.3d 325.

¶ 16 In this case, defendant was convicted of aggravated kidnaping, armed robbery, and aggravated vehicular hijacking. 720 ILCS 5/10–2(a)(6), 18–2(a)(2), 18–4(a)(4) (West 2010). On appeal, defendant contests only whether the evidence establishes that he was armed with a firearm during each of the charged offenses. To determine what constitutes a “firearm” under the...