People v. Gustafson

2021 IL App 180498-UB

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BENJAMIN GUSTAFSON, Defendant-Appellant.

No. 4-18-0498

Court of Appeals of Illinois, Fourth District

August 18, 2021

NOT PRECEDENTIAL

Appeal from the Circuit Court of Adams County No. 17CF159 Honorable Michael L. Atterberry, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court. Justices Turner and Steigmann concurred in the judgment.

ORDER

HARRIS JUSTICE

¶ 1 Held: (1) Defendant failed to make a sufficient offer of proof in order to preserve his claim that the trial court improperly excluded certain witnesses.

(2)The trial court conducted a sufficient Krankel inquiry.

(3)The trial court committed plain error by entering a restitution order in an amount that was not supported by any evidence. The court also committed plain error by failing to establish a method by which defendant was to satisfy the restitution obligation and a time period within which the restitution was to be satisfied.

¶ 2 Following a jury trial, defendant, Benjamin Gustafson, was found guilty of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2016)) and being an armed habitual criminal (id. § 24-1.7(a)). The trial court sentenced defendant to 24 years in prison. In a written order, the court also ordered defendant to pay $18, 889 in restitution. Defendant appealed, arguing: (1) the trial court erred by excluding certain witnesses, (2) the court failed to conduct a sufficient Krankel inquiry into his posttrial allegation of ineffective assistance of counsel and (3) the restitution payment order was deficient because the sum imposed was not supported by any evidence, the order failed to establish a method of payment, and the order failed to set a time period within which the restitution was to be paid. On appeal, this court affirmed defendant's conviction and the amount of restitution imposed by the trial court but remanded defendant's cause for the trial court to set a deadline for defendant to satisfy the restitution obligation and to establish the manner in which he was to satisfy the obligation. People v. Gustafson, 2020 IL App (4th) 180498-U.

¶ 3 On May 26, 2021, the supreme court denied a petition for leave to appeal filed by defendant but directed this court to vacate our judgment in the case, reconsider in light of People v. Birge, 2021 IL 125644, on the issue of whether the court-ordered restitution was supported by the evidence, and determine if a different result is warranted. In accordance with the supreme court's direction, we vacate our prior judgment and reconsider the court's restitution order in light of Birge. After reconsideration, we vacate the trial court's restitution order and remand to the trial court for a new hearing and a determination as to the appropriate amount of restitution owed, the deadline by which defendant must satisfy the restitution obligation, and the manner in which defendant is to satisfy the obligation. We otherwise affirm defendant's conviction.

¶ 4 I. BACKGROUND

¶ 5 On February 16, 2017, the State charged defendant with one count of residential burglary (720 ILCS 5/19-3 (West 2016)) (count I). Later, the State amended the charges to include two counts of possession of a stolen firearm (id. § 24-3.8) (counts II and V), two counts of unlawful possession of a weapon by a felon (id. § 24-1.1(a)) (counts III and VI), and two counts of armed habitual criminal (id. § 24-1.7(a)) (counts IV and VII). Counts I, II, III, and IV related to alleged actions of defendant on October 11, 2016, while counts V, VI and VII related to alleged actions of defendant on January 24, 2017. On December 18, 2017, following a motion by defendant, the trial court severed the charges, and the State elected to proceed to trial first on counts III and IV. The issues in the subject appeal relate solely to counts III and IV.

¶ 6 Prior to trial, the State filed a motion in limine requesting that several individuals listed in defendant's discovery disclosures be barred from testifying because they "were not present and had no involvement with the facts giving rise to the alleged acts on October 11, 2016." The trial court reserved ruling on the State's motion until the conclusion of the State's case-in-chief.

¶ 7 The cause proceeded to a jury trial on May 21, 2018. The State first called James Fisher as a witness. Fisher testified that on October 11, 2016, he returned home from work and found his house "in total disarray." According to Fisher, "[e]verything was laying on the floor. I turned around and there [were] things broken-and such." Fisher noticed the gun case in his bedroom had been destroyed and that the following guns that had been in the case were missing: two "12-gauge shotguns," two ".410 shotguns," two ".22 rifles," a ".22 semiautomatic handgun," a ".40 Glock handgun," and a "pump-up pellet gun." In addition to the guns from the safe, Fisher noticed that two "musket-type guns," ammunition, prescription pain pills, a jewelry box containing jewelry, currency, a coat and other "miscellaneous" items had been taken. Fisher further testified that he was acquainted with defendant and that, on two occasions prior to October 11, 2016, defendant had been to his home to pick up firewood. According to Fisher, his home was in a remote area and "unless [a person] kn[e]w where [he] live[d] or g[o]t directions from [him]," the person would be unable to find his house.

¶ 8 The State also called Taylor Hicks as a witness. According to Hicks, she first met defendant in March of 2016 and was with him on October 11, 2016. Hicks testified that, on that date, defendant, Kamden Mock, and Travis Childress came to her home. When Hicks approached the car defendant was driving, he told her to come with them "to get some guns." Hicks got in the car and defendant then drove the group to Fisher's home. According to Hicks, once the group arrived at Fisher's home, the men got out of the car and entered the house while she remained in the car and listened to the police scanner. Hicks testified that, while she waited in the car, she heard "the sound of glass breaking," and approximately five minutes later, the other three returned to the car. Hicks stated that when they returned, defendant and Childress "were both carrying guns" and Mock "was carrying a jewelry box and *** a change jar." The three placed the items in the trunk of the car and then the group left. Hicks testified defendant next drove them "to the lev[ee]" where they divided the items stolen from Fisher's home among themselves. Defendant then drove them all to Childress's home and dropped off Childress and Mock along with the items Childress had claimed. Hicks testified that defendant next drove her to her house and carried the rest of the items into her attic. A few days later, defendant returned and removed the items.

¶ 9 On cross-examination, Hicks admitted that during the events of October 11, 2016, each member of the group, including herself, was "high on methamphetamine." Hicks further testified that she had purchased methamphetamine from defendant "a couple times."

¶ 10 During the second day of trial, the State called Mock and Childress to testify. With minor differences, both men testified consistently with Hicks. Additionally, Mock testified that the three men entered Fisher's home through the garage and that, after he had explored a different part of the house, he returned to where defendant was and saw defendant "loading the guns in a bag." Childress testified that sometime after October 11, 2016, he "sawed down and handled" the shotguns they had taken from Fisher's house. On cross-examination, Childress testified that after he altered the ".410 shotgun[s]," "Kyle Hildenbrand *** ended up with" at least one of them.

¶ 11 After Childress testified, the State rested, and the trial court conducted a hearing on the State's motion in limine. At the beginning of the hearing, defense counsel informed the court that he intended to call as witnesses Brianne Carlson, Jerry Coram, Andrew Adams, and Deputy Tommy Pickett. The court then asked defense counsel for an offer of proof for the potential witnesses. In response to the court's request, defense counsel commenced a protracted and vague proffer. Defense counsel informed the court the testimony would "deflect any blame or responsibility that go with [defendant]" and, instead, would implicate Kyle Hildenbrand. Although defense counsel's proffer consumes 18 pages of the report of proceedings, and despite multiple attempts by the court to clarify the proffer, defense counsel did not specify the anticipated testimony of each of the identified witnesses beyond indicating that Hildenbrand possessed guns sometime after the robbery. At one point during the hearing, defense counsel stated:

"In other words, [defendant] is being charged with one of the guns that Kyle Hildenbrand was trying to get rid of-excuse me-

[Andrew Adams] was trying to get rid of by way of Kyle Hildenbrand, and Tommy Pickett saw his way clear. So, in other words, if you understand, sir, he's- those-one of those guns may be a gun that [defendant] is-is charged with."

The court found "[t]he proffered testimony in the [c]ourt's judgment does not go to any issue that is relevant to this jury[, ]" and granted the State's motion in limine.

¶ 12 Defendant testified on his own behalf. According to defendant, he did not go to Fisher's home on October 11 2016. Defendant testified that, in September 2016, he had shown Hicks and Hildenbrand where Fisher lived while the three of them happened to be driving by Fisher's house. Defendant further testified that the only time he had seen the guns he was charged with possessing was in late October of 2016 "at Kyle...