                                         2017 IL App (3d) 160668

                               Opinion filed October 24, 2017
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                    2017

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 13th Judicial Circuit,
                                            )     La Salle County, Illinois.
           Plaintiff-Appellee,              )
                                            )     Appeal No. 3-16-0668
           v.                               )     Circuit No. 15-CF-331
                                            )
     KEITH R. GULLENS,                      )
                                            )     Honorable H. Chris Ryan Jr.,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.

                                                OPINION

¶1          This case exemplifies the adage: “No good deed goes unpunished.” Defendant, Keith R.

     Gullens, argues that the circuit court erred in revoking his conditional discharge for committing

     the offense of being a felon in possession of a weapon. The evidence at the revocation hearing

     showed that defendant possessed a firearm, which either his younger brother or a friend (the

     record is unclear which) had stolen, for approximately 10 minutes for the purpose of returning

     the firearm to the store. Defendant argues that the affirmative defense of necessity applied to him

     or, alternatively, fundamental fairness required that the court deny the State’s petition to revoke

     defendant’s conditional discharge. We agree.
¶2                                               FACTS

¶3          Previously, defendant pled guilty to theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)) in

     exchange for a sentence of 30 months’ conditional discharge. As terms of his conditional

     discharge, the court ordered defendant not to violate any criminal statutes and to refrain from

     possessing a firearm or dangerous weapon. Approximately one month later, the State filed a

     petition to revoke conditional discharge. The petition alleged that defendant violated his

     conditional discharge by committing the offense of possession of a weapon by a felon (720 ILCS

     5/24-1.1 (West 2016)).

¶4          The court held a hearing on the State’s petition to revoke conditional discharge. The State

     submitted a certified copy of conviction showing that defendant had been convicted of criminal

     damage to property, a Class 4 felony, in 2012.

¶5          The State called Michael Centko as its first witness. Centko testified that he was

     employed by South Post Guns, a store that sold firearms and related items. On June 20, 2016,

     defendant came to the store. Centko could not remember if defendant had purchased anything,

     but said defendant might have purchased some ammunition. Later that day, defendant returned to

     the store with a Glock 42 and gave it to Centko. Defendant told Centko that his younger brother

     had stolen the gun. Centko reviewed the store’s surveillance footage from earlier that day. The

     video recording revealed that a man who entered the store with defendant stole the Glock 42

     while Centko was in a different area of the store talking to defendant about magazines or

     cleaning brushes. Centko said he had no reason to believe defendant saw the man take the gun.

     The State played the video footage from the security camera in court.

¶6          Detective Brad Demoss testified that he learned that a burglary occurred at South Post

     Guns on June 22, 2016. While investigating this incident, Demoss learned of an incident that


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     occurred two days prior in which defendant had returned a stolen gun to the store. Demoss

     reviewed footage from the store’s security cameras from June 20. Demoss determined that

     Gerald Bumper had stolen the gun. After Bumper grabbed the gun, he handed it to Rashad

     Anchondo. Defendant and Darrell Gullens were in the store when Bumper stole the gun. When

     defendant returned the gun later that day, Anchondo and Shane Rexroad were with him. Demoss

     did not speak to Bumper about the incident because Bumper was murdered shortly after the

     incident. Demoss spoke to defendant about the incident. A video of the interview was played in

     court.

¶7            Demoss opined that as soon as defendant grabbed the gun from Anchondo, he violated

     the law. The following exchange occurred between defense counsel and Demoss on cross-

     examination:

                            “Q. Okay. I guess if [defendant] had called the police and said

                    —he still would have been in violation of the law as soon as he

                    grabbed the gun; is that right?

                            A. If he would have called the police, in my opinion, when he

                    found out that [Anchondo] and [Bumper] had stolen the gun and said

                    this is what happened, this is where the gun is, at that point I would

                    consider him to be a witness as opposed to a suspect.

                            Q. And you’re saying had he never possessed—

                            A. Had he never possessed the weapon.

                            Q. Okay. And if he doesn’t, if he doesn’t—it’s all safe to say if

                    he doesn’t possess the weapon, he doesn’t have control over that item;

                    is that right?


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                           A. That’s right.

                           Q. So, he can’t be sure that that item is going to be there when

                   the police show up? The guy could leave; is that right?

                           A. Yes, sir.

                           Q. And it’s also fair to say that it takes a certain type of

                   criminal to actually steal a gun. That’s a serious crime; right?

                           A. I believe so, yes.

                           Q. And the type of person that is willing to reach behind the

                   counter and take a Glock, that’s the type of person that could also be

                   capable of violence?

                           A. Potentially, yes, sir.

                           Q. Okay. And it’s fair to say that reporting to the police that

                   that happened could have potentially, from his perspective,

                   [defendant’s] perspective, subjected him to violence; isn’t that right?

                           A. Yes, sir.

                           Q. And I guess overall, overall arching, arching thing that we

                   are dealing with here, it’s certainly better that the gun was returned to

                   the person that owned it than staying out on the street. Can we all

                   agree to that?

                           A. I can agree to that.”

¶8          The State rested.

¶9          Defendant moved for a directed verdict, arguing that the State’s evidence supported a

     necessity defense. Defendant contended that he took the gun from Anchondo in order to return it

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       to the store because he did not want it in the public. Defendant argued that by possessing the gun

       for a few minutes, he avoided a public harm significantly greater than him possessing a firearm.

       The State argued that the necessity defense did not apply because defendant failed to establish

       that an actual real harm was going to occur if he did not return the gun to the store. The court

       denied the motion for a directed verdict.

¶ 10          Defendant called Damires DeLeon, the mother of his children, as his first witness.

       DeLeon testified that on the day of the incident, she asked defendant to go out and compare the

       costs of guns. DeLeon’s father had recently obtained a firearms owner’s identification (FOID)

       card, and DeLeon wanted to give him the money to buy a gun as a gift.

¶ 11          Rexroad testified he attended a party with defendant and Anchondo on the date of the

       incident. Anchondo pulled out a gun and showed it to Rexroad and defendant. Defendant became

       upset and asked Anchondo where he obtained the gun. Anchondo told defendant he had taken it

       from the store. Defendant said he would take it back. Defendant immediately returned the gun to

       the store. Anchondo and Rexroad went with defendant to return the gun. The drive to the store

       took approximately 5 to 10 minutes.

¶ 12          Defendant testified that he went to South Post Guns on the date of the incident because

       DeLeon had asked him to determine the approximate cost of a gun. DeLeon wanted to purchase

       a gun for her father. Anchondo went with defendant because he wanted to apply for a FOID card.

       Bumper also went with them. Defendant testified that Anchondo was not a felon, but Bumper

       might have been a felon. Defendant believed that he purchased a cleaning kit for DeLeon’s father

       at the store. Defendant did not purchase any ammunition. When defendant left the store, he went

       to Anchondo’s girlfriend’s house to drop off Anchondo and get high. Anchondo showed




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       defendant a gun and said he had stolen it from South Post Guns. Defendant took the gun from

       Anchondo. Defendant returned the gun to the store approximately 5 to 10 minutes later.

¶ 13          Defendant explained that he returned the gun because he did not want to get into trouble.

       Defendant returned the gun himself because he did not believe Anchondo would return it, and

       everyone he knew with a valid FOID card was at work. Defendant said the gun could have been

       sold in Chicago and used for crime. Defendant explained that his only goal in possessing the gun

       was to return it to the store. Defendant said he did not take the gun to the police because he was a

       felon and he did not want to get in trouble. Defendant testified that he did not participate in the

       burglary that occurred at the store two days later.

¶ 14          During closing argument, defendant argued that the affirmative defense of necessity

       applied. The State contended that the defense of necessity did not apply. The State argued that

       the necessity defense applied only to “real, actual harm” and not “some potential harm that

       maybe falls on someone at some point in time.”

¶ 15          The court found that defendant violated his conditional discharge by being a felon in

       possession of a weapon. The court determined that the defense of necessity did not apply. The

       court reasoned:

                              “Whether or not necessity is going to rise to the level, the

                      accused has to have a reasonable belief such conduct was necessary to

                      avoid a public or private greater harm.

                              There is something to be said about this actuality. It has to be

                      something present, as opposed to potential future—especially in a

                      Petition to Revoke.




                                                         6
                              It doesn’t take much. I mean, it’s a lesser standard. It’s not

                      beyond a reasonable doubt when the State carries their burden with it.

                      I appreciate the argument.

                              Just to point out a few things.

                              [Defendant] knew that [Anchondo], in his opinion, said

                      [Anchondo] is not a felon. And [Anchondo] went back to the store

                      with him, and he’s standing next to him.

                              Yeah. I’m just, I have some—I think there was other ways that

                      it could have been dealt with. I understand what he’s putting forth. I

                      can’t say anything else.”

¶ 16           The court resentenced defendant to three years’ imprisonment.

¶ 17                                               ANALYSIS

¶ 18           Defendant argues that the circuit court erred in granting the State’s petition to revoke his

       conditional discharge because the affirmative defense of necessity applied or, alternatively,

       fundamental fairness required that the court deny the petition to revoke because the purposes of

       his conditional discharge were served by his continued liberty. We address each argument in

       turn.

¶ 19                                               I. Necessity

¶ 20           First, defendant argues that the circuit court erred in granting the State’s petition to

       revoke conditional discharge because, although he committed the offense of being a felon in

       possession of a weapon, the affirmative defense of necessity applied to justify his conduct. We

       find that the defense of necessity applied to defendant’s conduct in briefly possessing a stolen




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       firearm to return it to the store, and the circuit court’s finding to the contrary was against the

       manifest weight of the evidence.

¶ 21          At a hearing on the State’s petition to revoke conditional discharge, the State has the

       burden of proving a violation of a condition of conditional discharge by a preponderance of the

       evidence. 730 ILCS 5/5-6-4(c) (West 2016). “[A] revocation of conditional discharge will be

       overturned only when it is contrary to the manifest weight of the evidence.” People v. Smith, 337

       Ill. App. 3d 819, 822 (2003). “A finding is against the manifest weight of the evidence only if the

       opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not

       based on the evidence presented.” People v. Deleon, 227 Ill. 2d 322, 332 (2008).

¶ 22          In section 7-13 of the Criminal Code of 2012, the affirmative defense of necessity is

       defined as follows:

                      “Conduct which would otherwise be an offense is justifiable by reason

                      of necessity if the accused was without blame in occasioning or

                      developing the situation and reasonably believed such conduct was

                      necessary to avoid a public or private injury greater than the injury

                      which might reasonably result from his own conduct.” 720 ILCS 5/7-

                      13 (West 2016).

       The defense of necessity “is viewed as involving the choice between two admitted evils where

       other optional courses of action are unavailable [citations], and the conduct chosen must promote

       some higher value than the value of literal compliance with the law [citation].” People v. Janik,

       127 Ill. 2d 390, 399 (1989).

¶ 23          Here, the State does not dispute that defendant was without blame in occasioning or

       developing the situation that resulted in the theft of the gun. Defendant testified that he did not


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       know that Bumper and Anchondo had stolen the gun until after they left the store. Centko

       testified that, after reviewing the video recording from the security camera, he had no reason to

       believe defendant saw Bumper take the gun. Additionally, the evidence showed that defendant

       reasonably believed that returning the gun was necessary to avoid a greater public or private

       injury than committing the offense of being a felon in possession of a weapon. Defendant

       explained that he did not want to get into trouble for the theft of the gun, and he believed the gun

       could have been sold in Chicago and used for crime. Returning a stolen firearm to its rightful

       owner undoubtedly promoted a higher value than refraining from being a felon in possession of a

       weapon for the 10 minutes it took to return the gun to the store.

¶ 24          We also find that defendant established that there were no other courses of action

       available to him. Defendant testified that he did not believe Anchondo would return the gun on

       his own because he had helped steal it. This belief was reasonable. Defendant also said that he

       did not know anyone available with a valid FOID card to return the gun. Had defendant called

       the police and reported the stolen gun without taking possession of the gun, it is uncertain that

       the police would have recovered the gun. We acknowledge that both the circuit court and the

       State have taken the position that there were other alternatives available to defendant. However,

       beyond suggesting the unlikely scenario that Anchondo would have returned the gun himself

       without defendant possessing it, the State gave no explanation as to what other options were

       available to defendant.

¶ 25          We note that our supreme court has held that a defendant must show that he faced a

       “specific and immediate threat” for the necessity defense to apply. People v. Kite, 153 Ill. 2d 40,

       46 (1992). We are inclined to believe that a specific and immediate threat to public safety occurs

       any time a stolen firearm is out on the street, as a stolen firearm may never be transferred legally.


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¶ 26                                          II. Fundamental Fairness

¶ 27           Defendant alternatively argues that fundamental fairness demanded that the court deny

       the State’s petition to revoke conditional discharge because the purposes of defendant’s

       conditional discharge were served by his continued liberty. While we need not reach this

       alternative argument in light of our above holding, we agree with defendant and address the

       argument in the interest of clarity.

¶ 28           “The issue in a probation revocation proceeding is two-fold: first, whether a probation

       violation actually occurred, and second, whether the purposes of defendant’s probation are being

       served by his continued liberty.” People v. Butler, 137 Ill. App. 3d 704, 712 (1985). 1 “[T]he

       purpose of probation is to benefit society by restoring a defendant to useful citizenship, rather

       than allowing a defendant to become a burden as an habitual offender.” People v. Meyer, 176 Ill.

       2d 372, 379 (1997). “Probation simultaneously serves as a form of punishment and as a method

       for rehabilitating an offender.” Id. One of the goals of probation is to protect the public from the

       sort of conduct that led to a defendant’s conviction. Id.

¶ 29           We note the holding in People v. Clark, 206 Ill. App. 3d 741 (1990). In Clark, the State

       filed a motion to revoke the defendant’s Treatment Alternatives to Street Crimes (TASC)

       probation. Id. at 742. The State presented evidence showing that the defendant failed to keep a

       TASC appointment, and TASC discharged him from the program for having no contact with

       TASC for 30 days. Id. at 742-43. The defendant testified that he was unable to attend his TASC

       appointment because the police arrested him the day before his appointment, and he remained in



               1
                We consider cases concerning revocation of probation interchangeably with cases concerning
       revocation of conditional discharge, as the statutory requirements are virtually the same in either type of
       revocation proceeding. See 730 ILCS 5/5-6-4 (West 2016); People v. Tufte, 165 Ill. 2d 66, 74 (1995)
       (“Revocation of a defendant’s conditional discharge is governed by the same statutory requirements that
       are applicable where the State seeks to revoke a defendant’s probation.”).
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       custody for several weeks until the State dropped the charges. Id. at 743. He made several collect

       calls to TASC, but no one would accept the calls. Id. The defendant also asked his public

       defender to call TASC, but he refused to do so. Id. After being released from jail, the defendant

       called TASC and explained the situation. Id. The circuit court revoked the defendant’s probation.

       Id. at 744-45. The Clark court held that the circuit court abused its discretion in revoking the

       defendant’s probation. Id. at 745. The court noted that it was undisputed that the defendant had

       committed a probation violation but found that the purposes of the defendant’s probation—

       namely, to obtain treatment for his drug problem—were being served by his continued liberty.

       Id. The court reasoned:

                       “A revocation of defendant’s probation under these circumstances

                       thwarts the fundamental objective of restoring him to useful

                       citizenship, frustrates the purpose of the Act, is contrary to the courts’

                       tendency to interpret the Act to strongly favor rehabilitation and results

                       in an unsatisfactory application of the law to the facts of this case.” Id.

                       at 747.

¶ 30           Defendant violated his conditional discharge. However, as in Clark, given the unique

       circumstances of the violation, revoking defendant’s conditional discharged “thwarts the

       fundamental objective of restoring him to useful citizenship” and “results in an unsatisfactory

       application of the law to the facts of this case.” Id.

¶ 31           Here, defendant possessed the stolen firearm for approximately 10 minutes. Defendant

       testified that his only intent in possessing the gun was to return it to its rightful owner, and the

       State has presented no evidence to the contrary. Though defendant technically committed the

       offense of being a felon in possession of a weapon for the approximately 10 minutes he


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       possessed the gun, defendant acted to avoid the greater harm of the stolen firearm being out on

       the street where it most likely would have been sold and used for criminal purposes. In this way,

       defendant’s possession of the gun actually served to protect the public. We deem this a good

       thing. The facts of this case suggest that but for defendant’s presence and actions, another illegal

       gun would have been in the hands of criminals. We deem that a bad thing. Due to the unique

       extenuating circumstances of this offense, we believe that the purposes of defendant’s

       conditional discharge—i.e., defendant’s rehabilitation and protection of the public—are served

       by his continued liberty. As such, we find that the circuit court’s revocation of defendant’s

       conditional discharge was against the manifest weight of the evidence. Deleon, 227 Ill. 2d at 332.

¶ 32                                            CONCLUSION

¶ 33          For the foregoing reasons, we reverse the judgment of the circuit court of La Salle

       County revoking defendant’s conditional discharge. We remand for further proceedings

       consistent with this order.

¶ 34          Reversed and remanded.




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