People v. Harris

47 N.E.3d 308

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Dejuan HARRIS, Defendant–Appellant.

No. 1–13–3892.

Appellate Court of Illinois, First District, Second Division.

Dec. 22, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Ginger Leigh Odom, all of State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Janet C. Mahoney, and James D. Konstantopoulos, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice NEVILLE delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, Dejuan Harris, the defendant, was convicted of armed robbery and sentenced to 10 years' imprisonment. On appeal, Harris contends that his conviction for armed robbery should be vacated or reduced to robbery because the evidence was insufficient to establish that he was armed with a dangerous weapon that could be used as a bludgeon.

¶ 2 We find that the State failed to present evidence that the defendant was armed with a gun that had the weight or composition (metallic nature) of a dangerous weapon. Therefore, we hold that the evidence presented by the State failed to prove, beyond a reasonable doubt, that the gun was a dangerous weapon because it could be used as a bludgeon. Accordingly, we reverse Harris's armed robbery conviction and remand for the trial court to enter a judgment of conviction for robbery.

¶ 3 BACKGROUND

¶ 4 Harris and the codefendant, Deleon Dixon, who has a separate appeal (No. 1–13–3303), were charged with two counts of armed robbery and two counts of aggravated unlawful restraint. Count II, which is pertinent to this appeal, charged both defendants with armed robbery in that they knowingly took property from the person or presence of Abdelaziz Almasri by the use of force or by threatening the imminent use of force, and that they carried, on or about their persons or were otherwise armed with, a dangerous weapon that could be used as a bludgeon.

¶ 5 At the simultaneous, but severed bench trials of Harris and Dixon, Almasri testified, on direct examination through an interpreter, that he owned a store at 256 West 59th Street in Chicago. Almasri explained that he was in the back of the store when he saw men looking through the windows at about 9 a.m. on September 15, 2012. Almasri became suspicious and walked to the front of the store and locked himself inside the office.

¶ 6 Dixon and Harris entered the store and Dixon, who was holding what appeared to be a gun in the air, told Almasri not to move. While Dixon stood by the door with the gun, Harris jumped behind the counter and started removing lottery tickets, cigarettes, and medicine. Harris then took the gun from Dixon and stood by the front door while Dixon removed similar items from behind the counter. Both men then fled the store.

¶ 7 Almasri chased the men, but the defendants got into a car and drove away. Almasri notified the police, and, when they arrived, he viewed the store's surveillance videotape with an officer.

¶ 8 During cross-examination by Dixon's attorney, Almasri testified that he did not see a weapon when the defendants entered the store. When Almasri was asked if he told Sergeant Pagan that he did not see a weapon, he testified that he didn't recall exactly what he said. Finally, Almasri testified “[a]ctually, I saw him in the video camera with a gun.”

¶ 9 When cross-examined by Harris's attorney, Almasri testified that when the defendants entered the store, he did not see a weapon. But, Almasri testified that when he looked from his office window, he saw the gun when the defendant raised his hand.

¶ 10 Sergeant Dennis Pagan testified that he met with Almasri at his store and viewed the surveillance video. Almasri told Sergeant Pagan that he was not sure that he actually saw a weapon, and only confirmed that he saw a weapon when he looked at the surveillance video.

¶ 11 The surveillance videotape was admitted into evidence. It showed Harris and Dixon holding what appeared to be a handgun.

¶ 12 Harris and Dixon were subsequently arrested in connection with the subject robbery, but no weapon or proceeds were recovered.

¶ 13 After the State rested, the trial court granted the defendant's motion for a directed verdict on all counts, except for count II (armed robbery with a dangerous weapon, i.e., a bludgeon).

¶ 14 Following closing arguments, the trial court found Harris guilty of armed robbery with a dangerous weapon. In making its finding, the court stated:

“When you look at the video, there is no mistaking that there is a weapon there, that there is a gun. It is quite a large gun, a handgun and it's clearly visible on the videotape * * *.

* * *

The other question is whether or not * * * I could find or should find that the weapon that is admitted in * * * Dixon's statement to be a BB gun.

Whether or not that could be a bludgeon and based on its size and what I observed on the tape to be metallic in nature and based on the way that it was manipulated in this event, it is very clear that it was a bludgeon to be used to strike anyone in the store and could have foiled the effort to rob the store and certainly, it was used in a manner to threaten the victim in this case * * *.

* * *

The images are very clear. And that exist independently of what [the victim] said or didn't say in the course of his testimony. I want to predicate that by saying that in my view, [the victim] is correctly and independently and accurately identified the defendants here today as to what occurred at the incident.

Certainly, it could be argued it's not completely on point here. I will indicate that [the victim's] testimony was more than sufficient when compared to all the other evidence in the case to convict the defendants of armed robbery.

It certainly could be argued that the videotape in and of itself would have been sufficient had it been appropriately marked and entered into evidence with only an indication that this armed robbery had occurred by the victim and had a specific date, time and location to convict the defendants.

But, as I said, [the victim's] testimony was excellent and I am going to find them guilty of using a—this weapon, the one that I see in the videotape as a bludgeon.”

¶ 15 On appeal, Harris contends that his conviction for armed robbery should be vacated or reduced to robbery because the State failed to establish that the weapon used was dangerous. In particular, defendant points out that the gun was not admitted into evidence, and maintains that the State failed to present evidence that the gun was capable of being used as a bludgeon.

¶ 16 Analysis

¶ 17 Standard of Review

¶ 18 Here, Harris is challenging the trial court's findings that the defendant's gun was a dangerous weapon because it was metallic and could used as a bludgeon. Harris also challenges the trial court's ultimate determination that he was guilty of armed robbery. Whether an object is sufficiently susceptible to use in a manner likely to cause serious injury so that it qualifies as a dangerous weapon is generally a question of fact.

People v. Ross, 229 Ill.2d 255, 275, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008) ; People v. Thorne, 352 Ill.App.3d 1062, 1071, 288 Ill.Dec. 513, 817 N.E.2d 1163 (2004). However, the question becomes one of law where the character of the weapon is such as to admit of only one conclusion. People v. Skelton, 83 Ill.2d 58, 66, 46 Ill.Dec. 571, 414 N.E.2d 455 (1980).

¶ 19 A trial court's findings based on testimonial evidence are entitled to great deference, but its findings based on nontestimonial evidence (exhibits, like surveillance videos, admitted into evidence) are not entitled to any deference. People v. Radojcic, 2013 IL 114197, ¶ 34, 376 Ill.Dec. 279, 998 N.E.2d 1212.

¶ 20 Finally, a trial court's factual findings are not reversed unless they are against the manifest weight of the evidence. People v. Absher, 242 Ill.2d 77, 82, 351 Ill.Dec. 163, 950 N.E.2d 659 (2011). A trial court's findings are against the manifest weight of the evidence only when an opposite conclusion is apparent or when the findings appear to be unreasonable, arbitrary, or not based on the evidence. People v. Clark, 2014 IL App (1st) 130222, ¶ 26, 382 Ill.Dec. 429, 12 N.E.3d 708. When we consider the trial court's ultimate finding, that the defendant was guilty of armed robbery, the standard of review is “ ‘whether after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” (Emphasis omitted.) People v. Cooper, 194 Ill.2d 419, 430–31, 252 Ill.Dec. 458, 743 N.E.2d 32 (2000) (quoting Jackson v. Virginia, 443 U.S. 307, 318–19, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ).

¶ 21 Elements of the Offense of Armed Robbery

¶ 22 In order to sustain a conviction for armed robbery, the trial court was required to find that defendant, in committing a robbery, was armed with a dangerous weapon other than a firearm. 720 ILCS 5/18–2(a)(1) (West 2012).

¶ 23 Dangerous objects are divided into three categories: “(1) objects that are dangerous per se, such as loaded guns; (2) objects that are not necessarily dangerous, but were actually used in a dangerous manner during the robbery; and (3) objects that are not necessarily dangerous, but may become dangerous when used in a dangerous manner.” Ross, 229 Ill.2d at 275, 322 Ill.Dec. 574, 891 N.E.2d 865 ; Thorne, 352 Ill.App.3d at 1070–71, 288 Ill.Dec. 513, 817 N.E.2d 1163.

¶ 24 The three ways for the State to prove that a gun constituted a “dangerous weapon” is by presenting evidence that: (1) the gun was operable and loaded; (2) the gun was actually used during the offense as a club or bludgeon; or (3) that due to the gun's size and weight, it was capable of being used as a club or bludgeon. Ross, 229 Ill.2d at 276, 322 Ill.Dec. 574, 891 N.E.2d 865 ; Thorne, 352 Ill.App.3d at 1072, 288 Ill.Dec. 513, 817 N.E.2d 1163. The parties agree that...