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                              Appellate Court                            Date: 2017.10.30
                                                                         12:11:23 -05'00'




                  People v. Thompson, 2017 IL App (3d) 160503



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JEREMY R. THOMPSON, Defendant-Appellant.



District & No.    Third District
                  Docket No. 3-16-0503



Filed             September 6, 2017



Decision Under    Appeal from the Circuit Court of La Salle County, No. 15-CF-414; the
Review            Hon. H. Chris Ryan, Jr., Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Eric L. Miskell, of Miskell Law Center, of Ottawa, for appellant.
Appeal
                  Karen K. Donnelly, State’s Attorney, of Ottawa (Patrick Delfino,
                  Lawrence M. Bauer, and Thomas D. Arado, of State’s Attorneys
                  Appellate Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE McDADE delivered the judgment of the court, with
                  opinion.
                  Justices O’Brien and Wright concurred in the judgment and opinion.
                                              OPINION

¶1       Defendant, Jeremy R. Thompson, challenges his convictions, arguing that the circuit court
     erred in allowing an officer to testify as to ballistics results without sufficient foundation. We
     reverse and remand for a new trial.

¶2                                               FACTS
¶3        Defendant was charged with (1) possession of a firearm by a felon (720 ILCS 5/24-1.1(a)
     (West 2014)); (2) aggravated assault (720 ILCS 5/12-2(c)(5) (West 2014)), in that he
     “knowingly shined a laser gun sight that was attached to a firearm, so that the laser beam struck
     the immediate vicinity of Deputy Aaron Hollenbeck”; and (3) aggravated assault (720 ILCS
     5/12-2(c)(6)(i) (West 2014)), in that he pointed a firearm at Hollenbeck, knowing Hollenbeck
     was a peace officer, placing Hollenbeck in reasonable apprehension of receiving a battery.
¶4        A jury trial was held at which the evidence established that just after 10 p.m. on
     September 13, 2015, Hollenbeck and Deputy Matt Moore were dispatched to an apartment
     building based on a theft complaint. They were advised by dispatch that there was a warrant
     out for one of the tenants of the apartment building. They arrested the tenant. As they were
     walking to the squad car, Hollenbeck and Moore noticed a green light bouncing off the
     building and hitting the squad car. They looked up to see where the light was coming from and
     saw defendant holding a rifle about 40 to 50 feet away on the other side of a fence. A woman
     was tugging on defendant’s arm, causing the laser from the rifle’s scope to move around.
     Hollenbeck yelled at everyone outside of the apartment building to get down. He then yelled
     multiple times at the man to drop the gun. Hollenbeck thought he was going to get shot. The
     man and woman both took off running in the opposite direction. Hollenbeck and Moore ran
     after defendant and the woman with their guns drawn. They then saw defendant and the
     woman come back into view without the gun. Hollenbeck told them to freeze and put up their
     hands. He then patted down defendant. He did not find any weapons on him. Hollenbeck asked
     defendant where he placed the rifle, and defendant responded, “I stuck it up my ass, why don’t
     you try looking there.” Defendant was placed in handcuffs. Hollenbeck searched the area and
     found the rifle underneath a camper trailer about 40 feet away. The gun turned out to be a
     .22-caliber pneumatic rifle that was not loaded.
¶5        The State called Detective Sergeant Adam Diss to testify regarding the muzzle velocity of
     the pneumatic rifle in order to establish that it was considered a firearm. See 720 ILCS 5/2-7.1
     (West 2014); 430 ILCS 65/1.1 (West 2014). Proving this essential element of all three of the
     charged offenses required a showing that the velocity of a projectile from the muzzle of the air
     rifle was 700 feet per second or greater. Diss testified that he worked in the investigations unit
     of the La Salle County sheriff’s office and was a master firearms instructor with the University
     of Illinois Police Training Institute in Champaign and a part-time gunsmith. In his personal
     time, Diss collects and repairs firearms and reloads his own cartridges and chronograph
     cartridges. He discussed his experience using a chronograph to test a firearm’s muzzle
     velocity. He said a chronograph is “an electronic device that you fire over the top of it and it
     measures the speed of the round, the velocity of the round.” He had been using a chronograph
     “in [his] personal time” for 20 years. The State asked Diss, “In the firearms industry, what is
     the industry standard method in measuring of muzzle velocity?” Diss stated, “The industry
     uses chronographs to check the rounds.” Diss stated he had owned a chronograph for

                                                 -2-
     approximately 10 years and used his friends’ chronographs prior to that. He had used a
     chronograph “[s]everal dozens” of times through his experience with firearms. To gauge the
     accuracy of the chronograph, Diss said he “fired [his] chronograph with friends’ chronographs
     and found it to be consistent with theirs, and [he] fired factory loaded ammunition over it and
     found it to be consistent with factory loads.” He checked his chronograph in this manner within
     six months of performing the tests for this case. He never found it to be inaccurate.
¶6       Defense counsel objected to the foundation for Diss’s testimony regarding the tests Diss
     performed with the chronograph. Outside the presence of the jury, the State and defense
     counsel questioned Diss regarding his education and training in firearms and the use of the
     chronograph. Diss stated that he did not have any formal degrees, formal training in forensic
     science, or any formal training “with regard to ballistic measuring of speed of firearms.” When
     asked when he last calibrated his chronograph, Diss stated, “You don’t calibrate personal
     chronographs.” He did not consult any documentation to ascertain whether his chronograph
     was properly calibrated. He knew there were standards for calibrating chronographs, but he did
     not know what they were. Diss was unaware of national standards for using a chronograph to
     test the speed of bullets. He was further unaware of the National Institute of Standards in
     Technology. Diss again stated that he checked his chronograph against his friends’
     chronographs, but he said he did not know when or if their chronographs were calibrated.
¶7       Diss stated that when he used his chronograph in this case, the gun was not fixed, but he
     remained in the same position. He did not know the wind speed, the humidity, or where the
     wind was coming from during the time he tested the firearm. He did not know the standard for
     recording wind resistance as he “didn’t think it was an issue.” Diss stated he did not base his
     examination on any generally accepted scientific methodology, but only on his knowledge of
     his chronograph. When using the chronograph, Diss placed it 10 feet away from the firearm
     and fired 10 shots. He said he uses the same methodology each time based on his experience.
     He always fired the slowest possible pellets. Diss said he was unaware of any other
     methodology that would be relevant to its accuracy. Diss said he did not call the Illinois State
     Police for guidance as to the methodology to conduct a ballistics test or send the gun for
     velocity testing at the Illinois State Police crime lab because “[t]hey do not offer velocity
     testing because they say they cannot calibrate a chronograph.” He further did not consult the
     National Rifle Association or any other industry standard organization for the methodology.
     He based his method solely on his experience, uninformed by technical standards.
¶8       The court allowed Diss’s testimony, stating, “I’ll let him give his opinion on it. Whether or
     not you’re going to get past a directed verdict is a whole other question.” The jury was brought
     back in, and Diss testified that he fired 10 rounds of the .22-caliber air rifle over the
     chronograph, using the “slowest possible pellets.” The velocity of the 10 rounds ranged from
     714 to 741 feet per second, which was sufficient to designate the pneumatic rifle as a firearm.
     See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Diss agreed that if his
     chronograph were even 5% inaccurate, the velocity of 8 of the 10 rounds would be less than
     700 feet per second. If the velocity of the pneumatic rifle was less than 700 feet per second, it
     would not qualify as a firearm under the statute, and therefore, defendant could not be
     convicted of the three offenses. See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West
     2014). Diss did not know how accurate his chronograph was. Diss further testified to his
     experience, methodology, and use of the chronograph as he had previously.



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¶9         After Diss’s testimony, the State admitted into evidence a certified copy of defendant’s
       conviction for criminal trespass to property, a Class 4 felony. The jury found defendant guilty
       of all three counts. Defendant was sentenced to a two-year term of imprisonment in the Illinois
       Department of Corrections.

¶ 10                                             ANALYSIS
¶ 11       On appeal, defendant argues that the circuit court erred in allowing Diss to testify as to the
       chronograph results without sufficient foundation. Because Diss did not establish the accuracy
       of the ballistic testing, we find that the foundation was insufficient for Diss’s testimony
       regarding the ballistics results.
¶ 12       At the outset, we note that the State argues that defendant has waived the above argument
       as he failed to cite authority. The State acknowledges that defendant cited Illinois Rule of
       Evidence 702 (eff. Jan. 1, 2011) and a case included in the comment to the rule, but notes that
       defendant does not explain how the rules apply in this case. We agree with the State’s
       assessment of defendant’s argument; however, we note that waiver is a limitation on the
       parties, not the court. People v. Collins, 301 Ill. App. 3d 529, 531 (1998) (citing Herzog v.
       Lexington Township, 167 Ill. 2d 288, 300 (1995)). Here we believe the interest of justice
       requires that we consider the merits of defendant’s appeal.
¶ 13       “[W]hen expert testimony is based upon an electronic or mechanical device *** the expert
       must offer some foundation proof as to the method of recording the information and proof that
       the device was functioning properly at the time it was used.” People v. Bynum, 257 Ill. App. 3d
       502, 514 (1994). Such proof is necessary to ensure that the admission of expert scientific
       testimony based upon a testing device is both relevant and reliable. Id. The expert must show
       that the electronic or mechanical device was in good working order when it was used by
       explaining how the machine is maintained and calibrated and why the expert knows the results
       are accurate. Compare People v. Raney, 324 Ill. App. 3d 703, 708-10 (2001) (expert failed to
       testify that gas chromatography mass spectrometer (GCMS) was working properly, that any
       testing was done to assess the condition of the machine, or that the accuracy of the machine
       was tested), Bynum, 257 Ill. App. 3d at 514 (expert failed to testify that GCMS machine was
       calibrated and that the results were accurate), and People v. Smith, 2015 IL App (1st) 122306,
       ¶ 43 (expert did not testify that breathalyzer performed accurately or was certified as accurate),
       with People v. Berrier, 362 Ill. App. 3d 1153, 1160-61 (2006) (expert testified that GCMS was
       calibrated before testing and was functioning properly), People v. DeLuna, 334 Ill. App. 3d 1,
       21 (2002) (expert testified that GCMS was calibrated daily), and Washington v. Police Board
       of the City of Chicago, 257 Ill. App. 3d 936, 939 (1994) (expert testified how GCMS machines
       were calibrated).
¶ 14       If an expert (1) fails to testify that the machine used was working properly, (2) does not
       indicate whether any testing was done to assess the operating condition of the machine, or (3)
       fails to explain how the machine was calibrated, a proper foundation for the admission of the
       results obtained from the machine is not established. Raney, 324 Ill. App. 3d at 708-10. Where
       the required foundation is not established, the expert testimony is inadmissible. Id. at 710.
¶ 15       Here, Diss testified that he had been using a chronograph personally for 20 years. He stated
       that the chronograph was the industry standard for testing the velocity of ballistics. He had no
       formal training in measuring ballistic speed. To check the accuracy of his chronograph, he
       tested it against his friends’ chronographs and checked it against factory ammunition, which he

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       had done within six months of testing the pneumatic rifle in this case. Diss also testified that (1)
       though he knew chronographs could be calibrated, “[y]ou don’t calibrate personal
       chronographs,”; (2) he did not know when or if his friends’ chronographs were calibrated; (3)
       he did not know the standards for chronographs; (4) he did not call the Illinois State Police for
       guidance on using the chronograph because they do not offer velocity testing; (5) he did not
       send the gun to the Illinois State Police crime lab for testing because they could not calibrate a
       chronograph; and (6) he did not consult anything to determine if his chronograph was
       calibrated. Therefore, Diss failed to establish with any reliability that the chronograph was
       working properly and that the results were accurate.
¶ 16        Further, Diss’s use of the chronograph to test the pneumatic rifle was solely based on his
       experience and not on any generally-accepted methodology. He did not place the gun in a fixed
       position. He did not know the wind speed, wind direction, or the level of humidity on the day
       he shot the gun, nor did he know the standards for recording wind resistance. Because the
       expert failed to demonstrate the accuracy of the chronograph and its test results, the State did
       not “establish the necessary foundation proof for admitting the expert opinion” (id.), and the
       court abused its discretion in admitting Diss’s testimony regarding the ballistics results. See
       People v. Williams, 238 Ill. 2d 125, 136 (2010) (applying an abuse of discretion standard for a
       foundational challenge to the admission of expert testimony).
¶ 17        Having determined that the court erred in admitting Diss’s expert testimony regarding the
       ballistics results, we must now determine the appropriate remedy. See Smith, 2015 IL App
       (1st) 122306, ¶ 45. “The prospect of retrial raises double jeopardy concerns and requires us to
       assess the sufficiency of the evidence against defendant.” Id. ¶ 46. “Although the double
       jeopardy clause precludes the State from retrying a defendant after a reviewing court has
       determined that the evidence introduced at trial was legally insufficient to convict, the double
       jeopardy clause does not preclude retrial of a defendant whose conviction has been set aside
       because of an error in the proceedings leading to the conviction.” People v. Olivera, 164 Ill. 2d
       382, 393 (1995). Stated another way, if the evidence was insufficient to convict defendant,
       then we must reverse his conviction outright. However, “ ‘[i]f the evidence presented at the
       first trial, including the improperly admitted evidence, would have been sufficient for any
       rational trier of fact to find the essential elements of the crime proven beyond a reasonable
       doubt, retrial is the proper remedy.’ ” (Emphasis in original.) Smith, 2015 IL App (1st) 122306,
       ¶ 46 (quoting People v. McKown, 236 Ill. 2d 278, 311 (2010)).
¶ 18        In order to be convicted of possession of a firearm by a felon, the State had to prove that
       defendant (1) had been convicted of a felony and (2) knowingly possessed a firearm “about his
       person or on his land or in his own abode or fixed place of business.” 720 ILCS 5/24-1.1(a)
       (West 2014). A certified copy of defendant’s felony conviction was entered into evidence.
       Thus, the first element was proven. Under the Criminal Code of 2012, a firearm has the same
       meaning as ascribed it under the Firearm Owners Identification Card Act (FOID Card Act).
       720 ILCS 5/2-7.1 (West 2014). Under the FOID Card Act, the term firearm includes a
       pneumatic gun, as long as the pneumatic gun does not have “a maximum muzzle velocity of
       less than 700 feet per second.” 430 ILCS 65/1.1 (West 2014). Stated another way, in order to
       prove defendant was in possession of a firearm, the State had to prove that the pneumatic rifle
       had a muzzle velocity of 700 feet per second or more. As stated above, when determining
       whether the State met this burden, we consider the improperly admitted evidence. Smith, 2015



                                                    -5-
       IL App (1st) 122306, ¶ 47. The results of Diss’s chronograph testing showed that the
       pneumatic rifle had a velocity of over 700 feet per second.
¶ 19       To convict the defendant of the first count of aggravated assault, the State had to prove that
       he committed an assault and “[k]nowingly and without lawful justification shine[d] or
       flashe[d] a laser gun sight or other laser device attached to a firearm, or used in concert with a
       firearm, so that the laser beam [struck] near or in the immediate vicinity of any person.” 720
       ILCS 5/12-2(c)(5) (West 2014). A person commits an assault when “he or she knowingly
       engages in conduct which places another in reasonable apprehension of receiving a battery.”
       720 ILCS 5/12-1(a) (West 2014). For the second count of aggravated assault, the State had to
       prove that defendant committed an assault by “[using] a firearm, other than by discharging the
       firearm” against a peace officer “performing his or her official duties.” 720 ILCS
       5/12-2(c)(6)(i) (West 2014). Here, the evidence showed that defendant shined the laser from
       the gun in the direction of the officers that were on duty at the time. Hollenbeck testified that he
       was afraid he was going to get shot. Further, as stated above, the State proved, with the
       improperly admitted evidence, that the pneumatic gun was a firearm for purposes of the
       statute. Viewed in the light most favorable to the State, the evidence at trial was sufficient for a
       rational trier of fact to find defendant guilty of possession of a firearm by a felon and both
       counts of aggravated assault. Therefore, there is no double jeopardy impediment to retrial, and
       we remand for a new trial.1

¶ 20                                       CONCLUSION
¶ 21      The judgment of the circuit court of La Salle County is reversed and remanded.

¶ 22      Reversed and remanded.




          1
           In light of our above holding, we offer no opinion on defendant’s alternative issues on appeal.

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