People v. Dawson

2022 IL App (1st) 190422

215 N.E.3d 1029

465 Ill.Dec. 824

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

v.Earl DAWSON, Defendant-Appellant.

No. 1-19-0422

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed September 30, 2022

Rehearing Denied October 28, 2022

James E. Chadd, Douglas R. Hoff, and Deborah K. Pugh (Allison Golisch, law student), of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Douglas P. Harvath, and Stacia Weber, Assistant State's Attorneys, of counsel), for the People.

JUSTICE ODEN JOHNSON delivered the judgment of the court, with opinion.

¶ 1 Defendant, Earl Dawson, was convicted by a jury of the offense of being an armed habitual criminal and sentenced to 12 years with the Illinois Department of Corrections (IDOC).

¶ 2 On this direct appeal, defendant claims (1) that the State failed to prove beyond a reasonable doubt that he had the requisite predicate adult convictions necessary to sustain his armed habitual criminal conviction, where he was only 17 years old when he committed the predicate offenses, (2) that the trial court erred by permitting the State to introduce course-of-investigation testimony regarding a nearby shooting, and (3) that defendant's 12-year sentence was excessive where the trial court improperly relied on defendant's prior convictions that were already factors implicit in the offense and disregarded mitigating factors, such as the nature of the instant offense.

¶ 3 With respect to the first claim, both parties argue in the alternative that we should reduce his armed habitual criminal conviction to the lesser included offense of aggravated unlawful use of a weapon. For the foregoing reasons, we reduce defendant's armed habitual criminal conviction to the lesser included offense of aggravated unlawful use of a weapon and remand for resentencing.

¶ 4 I. BACKGROUND

¶ 5 The evidence at trial showed that police officers responded to a radio dispatch on July 20, 2017, about a shooting in the area. The dispatch described the subject as a "male black with a red shirt running in an alley." After driving to the area, one of the officers observed defendant running from an alley and observed that defendant fit the description provided in the dispatch. Chasing defendant on foot, the officer followed defendant into a residence where the officer observed defendant pull a dark object from his waistband and place it on top of a laundry basket behind a door. After defendant was detained and handcuffed, the police recovered two firearms from the top of the laundry basket: a Smith & Wesson 9-millimeter handgun and a Jennings 9-millimeter handgun. Over defendant's objection, the trial court granted the State's request to certify two police officers as experts in fingerprint analysis. One of the officers testified that an inked fingerprint card from defendant shared 20 characteristics with the ridge impressions recovered from the grip of the Jennings handgun and that eight characteristics in the same relative positions usually indicates that the prints came from the same individual. The trial court gave the jury a limiting instruction that defendant was not accused of a shooting and that there was "no evidence" that defendant "was involved in" a shooting. Regarding his prior convictions, the parties stipulated as follows:

"ASSISTANT STATE'S ATTORNEY (ASA) KELLY PETERSON: Now come the People of the State of Illinois by their attorney, Kimberly M. Foxx, State's Attorney of Cook County, through her assistant Kelly Peterson and Maurice Alayo and the defendant, Earl Dawson, through his attorney, Rocio Armendariz, and stipulate as follows:

That the defendant, Earl Dawson, has previously been convicted of two qualifying felony offenses.

With that, Your Honor, the State would rest.

THE COURT: Is that stipulated to, Ms. Armendariz?

MS. ARMENDARIZ: So stipulated."

¶ 6 After the State rested, the defense rested, and the trial proceeded to closing arguments. After listening to arguments and jury instructions, the jury acquitted defendant of the count of armed habitual criminal predicated on the Smith & Wesson handgun but found him guilty of the count of armed habitual criminal predicated on the Jennings handgun.

¶ 7 Defendant's posttrial motion for a new trial alleged a number of errors, including that the trial court erred in permitting information about the alleged shooting to be introduced at trial. On February 7, 2019, the trial court denied the motion and proceeded to sentencing.

¶ 8 In aggravation, the ASA noted that defendant was on supervised release for two prior armed robberies when the instant offense occurred. Specifically, the ASA stated that defendant had been on "non-mandatory supervised release until January 22, 2020," for the robberies. These armed robberies had served as the predicate offenses for defendant's armed habitual conviction.

¶ 9 The ASA stated that defendant had received concurrent eight-year sentences for the robberies and described them as follows.¹ The ASA stated that, on February 5, 2013, at 5:50 p.m., defendant approached a woman on the street, displayed a semiautomatic black pistol, and demanded her property. After the woman gave him her headphones, iPad, and purse, he demanded that she give him the code to her iPad, which she did. The victim later identified defendant from a photo array.

¶ 10 With respect to the other robbery, the ASA stated that, a couple of weeks earlier, on January 20, 2013, at 6:50 p.m., a woman approached a bus stop, observed defendant and two other men there, and decided to walk to a different bus stop. Defendant and the two men followed her to the second bus stop, where defendant pulled out a semiautomatic black pistol from his front waistband and demanded her property. One of the two other men also displayed his own handgun, and the victim gave defendant her iPhone. Defendant then pushed the victim, who fell down on the sidewalk. After she fell, defendant kicked her in the ribs three times and fled. The victim identified defendant in a lineup.

¶ 11 Although the armed robberies occurred in 2013, the presentence investigation report (PSI) indicated that defendant had been sentenced for both robberies on November 7, 2016, by the same judge. The PSI reported the case numbers for the two armed robberies as No. 13 CR 0551801 and No. 13 CR 0551001. The P.S.I. stated that defendant's birthdate was December 3, 1995. This birthdate meant that defendant was 17 years old when the underlying robberies were committed, was 20 years old when he was sentenced for them, and was 21 years old when the instant offense occurred. The PSI did not indicate whether or not defendant pled guilty to the robbery offenses or when he was convicted of them.

¶ 12 In mitigation, defense counsel argued that defendant had received his GED on June 11, 2018, while incarcerated for the instant offense, and had been accepted to Arizona State University in Phoenix, Arizona. Prior to his arrest for the instant offense, defendant was employed as a cook at a local restaurant. The PSI reported that defendant "denied having any juvenile adjudications of delinquency" and that the computer system "reflected no juvenile adjudications." The PSI also indicated that defendant had no gang affiliation, was never married, and had no children.

¶ 13 The trial court sentenced defendant to 12 years with IDOC, which the court observed was "half of the maximum sentence." After the sentence was pronounced, defense counsel immediately tendered a motion to reconsider sentence, which the trial court denied. A timely notice of appeal was filed by defendant the same day, and this appeal followed.

¶ 14 II. ANALYSIS

¶ 15 On this appeal, defendant argues, first, that his two prior offenses were not qualifying predicates for his conviction of armed habitual criminal, and he asks this court to reverse his conviction or, in the alternative, to reduce his conviction to the lesser included offense of aggravated unlawful use of a weapon. Second, defendant argues that he was deprived of his right to a fair trial when the trial court permitted course-of-investigation testimony concerning a nearby shooting. Third, defendant claims that the trial court improperly sentenced defendant to an excessive sentence based on factors inherent in the offense. Since we are remanding for resentencing for other reasons, we do not address defendant's third claim. For the reasons explained below, we reduce defendant's conviction to the lesser included offense of aggravated unlawful use of a weapon and remand for resentencing. In addition, we do not find persuasive defendant's claim that the trial court erred by permitting course-of-investigation testimony about a shooting.

¶ 16 A. Predicate Convictions

¶ 17 First, defendant claims that the State failed to prove the requisite predicate convictions for the offense of armed habitual conviction.

¶ 18 As a preliminary matter, we observe that the State does not argue that defendant forfeited this claim either by failing to object in the court below or by stipulating to the offenses at trial. People v. De La Paz , 204 Ill. 2d 426, 433, 274 Ill.Dec. 397, 791 N.E.2d 489 (2003) ("It is well established that the State may waive waiver."); People v. Bahena , 2020 IL App (1st) 180197, ¶ 29, 446 Ill.Dec. 488, 170 N.E.3d 1014 (providing a list of cases that had found that the State may forfeit a claim of forfeiture by failing to raise it); People v. Skillom , 2017 IL App (2d) 150681, ¶ 24, 411 Ill.Dec. 808, 74 N.E.3d 117 ("the State forfeited any argument concerning defendant's forfeiture by failing to raise it").² Thus, we proceed to consider the issue that both parties briefed for us.

¶ 19 Generally, when considering a challenge to the sufficiency of the evidence at trial, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have...