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                                Appellate Court                         Date: 2019.07.10
                                                                        11:06:00 -05'00'




                  People v. Crowder, 2018 IL App (1st) 161226



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            CLAUDE CROWDER, Defendant-Appellant.



District & No.     First District, First Division
                   Docket No. 1-16-1226



Filed              November 13, 2018



Decision Under     Appeal from the Circuit Court of Cook County, No. 14-CR-17189; the
Review             Hon. Mary Colleen Roberts, Judge, presiding.



Judgment           Reversed.


Counsel on         James E. Chadd, Patricia Mysza, and Elizabeth Cook, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Clare Wesolik Connolly, and Adam Sammarco, Assistant State’s
                   Attorneys, of counsel), for the People.



Panel              PRESIDING JUSTICE MIKVA delivered the judgment of the court,
                   with opinion.
                   Justices Pierce and Griffin concurred in the judgment and opinion.
                                             OPINION

¶1       Defendant, Claude Crowder (Claude or Mr. Crowder), was convicted of aggravated
     unlawful use of a weapon (AUUW) after a bench trial and was sentenced to one year of
     imprisonment. Claude’s felony conviction was based on his brief possession of a handgun
     legally possessed by his father, Sammie, during an altercation started by others. On appeal,
     Claude argues we should reverse his conviction because his possession of the handgun was
     necessary for him to defend himself and his father after three men—one of whom appeared
     to be reaching for a “bulge” that Claude believed was a weapon—attacked them without
     provocation. Claude also argues, and the State concedes, that we should correct the mittimus
     to reflect that he did not use a handgun while in a vehicle. However, it is not necessary for us
     to reach that issue since we reverse Claude’s conviction.

¶2                                       I. BACKGROUND
¶3       Claude was charged with one count of reckless discharge of a firearm and six counts of
     AUUW. In his August 4, 2015, answer to discovery, Claude stated that he would “rely on the
     State’s inability to prove his guilt beyond a reasonable doubt” and “assert the defense of
     others: to wit, his father, Sammie Crowder.” Claude waived his right to a jury trial, and the
     State proceeded to a bench trial on all seven counts.
¶4       At the September 24, 2015, bench trial, Sammie Crowder and Chicago police officer
     Damen Balesteri testified in the State’s case-in-chief, and Claude testified in his own
     defense.
¶5       The witnesses testified that, on the night of September 16, 2014, Sammie, who was 73
     years old, and Claude, who was 28 years old, drove to the home of Claude’s wife, Pearlina,
     with whom Claude had a strained relationship. They drove there to pick up Claude’s young
     daughter and some clothes for Claude’s aunt’s funeral, which they planned to attend the next
     day.
¶6       Sammie and Claude arrived at the home around 10 p.m. Claude went to the front door
     while Sammie waited in the car. Claude knocked at both the door and the front window
     several times and received no answer, although the lights were on and several people could
     be seen in the living room. Sammie testified that, “because of previous incidents,” he got out
     of the car to convince his son that they should leave—they could buy clothes and leave for
     the funeral later. At that time, Sammie was lawfully carrying a loaded, .380-caliber Glock
     handgun in a holster on his right hip, for which he had a valid firearm owner’s identification
     (FOID) card and a concealed carry license (CCL).
¶7       Both Sammie and Claude were on the front porch and were about to leave when the door
     opened and three men appeared in the doorway. On the left was Louis Woods and on the
     right was Andrew Jackson—both brothers of Claude’s wife, Pearlina. Claude testified that he
     knew the man in the middle only by the street name of “Ra-Ra.” Claude testified that Louis
     was roughly six-and-a-half feet tall and that Andrew was of average height and build.
     According to Sammie, Ra-Ra was “huge *** over 400 [pounds].” The witnesses agreed that,
     with no provocation and no words exchanged, Louis swung his fist at Claude. According to
     Sammie, Louis’s fist immediately hit Sammie on his upper shoulder, causing him to fall
     backward, lose his balance, fall off the left side of the porch, which did not have a railing,


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       and hit the ground five feet below. Claude testified that Louis’s fist connected with him in
       the jaw before it struck Sammie’s shoulder and caused him to fall off the porch.
¶8          Claude testified that there were rocks on the ground under the porch and he “didn’t know
       if [his father] had hit his head on one of those rocks and knocked himself unconscious.” He
       ran down to check on his father, who appeared to be injured, and called his name multiple
       times. His father “moved a little bit,” and Claude tried to lift him but could not. Claude heard
       the men above yelling threats and obscenities at him, and he saw Ra-Ra reach for a bulge
       under his shirt that Claude believed was a weapon. Claude testified that, as he stood over his
       father, the threats and yelling increased, and that he heard one of the three men yell “I will
       empty the caps in his a**.” Claude then grabbed his father’s handgun from its holster and
       fired one shot vertically into the air. He testified that he did this “for protection for me and
       my father.” Claude then backed away from the porch, holding the gun up in the air, thinking
       he would thereby draw the men away from his father. He did not fire again but turned and
       ran down the street, without looking behind him. The parties agreed that the time between
       when Claude left the porch and when he was stopped by the police was only a matter of
       minutes.
¶9          Claude testified that, although he did not see Louis with a weapon that night, he “kn[e]w
       Louis well enough to know that he may have had or does have a weapon,” and that he had
       seen Ra-Ra with a weapon in the past. He acknowledged on cross-examination that Ra-Ra
       never pulled a weapon from under his shirt and that he did not tell the officers on the scene
       about the bulge. He claimed that he did tell this to Officer Balesteri later at the station.
¶ 10        Officer Balesteri testified that he was on duty in the area when he received a call at 10:22
       p.m. of a man with a gun, and that the person who called gave the officer an IR (incident
       report) number, which allowed the officer to pull up a picture of Claude on the portable
       computer in his police vehicle. The officer found Claude roughly a block from the scene of
       the altercation, conducted a protective pat-down of him, and discovered the handgun. Claude
       told Officer Balesteri that he had manually ejected bullets from the handgun and guided the
       officer to the ejected bullets. The officer testified that there were two rounds remaining in the
       handgun, and that he recovered two intact ejected bullets from where Claude pointed them
       out, along with one spent shell casing at the scene of the altercation. Officer Balesteri
       testified that Claude had no FOID card or CCL on him that night. Officer Balesteri testified
       that, after he was placed under arrest and read his Miranda rights, Claude told Officer
       Balesteri that “he shot the gun off because he was pissed off.” At trial, Claude acknowledged
       telling this to the officer, but explained that he “didn’t mean it in the sense where [he was]
       just a reckless person,” but rather that he was “pissed off to the fact that they had hurt [his
       father].”
¶ 11        Officer Balesteri testified that he and other police officers took statements from various
       witnesses the night of the altercation. Sammie’s statement the night of the incident differed
       from his trial testimony only to the extent that, in his statement, he told the police that
       someone pushed his son who then fell against him, rather than, as he testified at trial, that he
       was hit directly. Claude’s testimony was consistent with his statement to the police the night
       of the incident except that, according to Officer Balesteri, he did not tell the police about the
       bulge in Ra-Ra’s shirt.




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¶ 12       The State admitted into evidence a certification from the Illinois State Police Department,
       stating that, as of November 12, 2014, an individual named Claude Crowder with a birth date
       of May 29, 1986, did not have a FOID card or CCL.
¶ 13       Defense counsel argued in closing that the parties agreed on most of the facts: that
       Claude fired the gun once, walked away in order to “deflect the violence that’s going on with
       the people on the porch away from his father,” then started to take the remaining bullets out
       of the handgun. Counsel asked the trial court “to find that the actions of Claude Crowder
       were allowable *** in the situation and under the law.” The State responded that it had
       proved every element of both reckless discharge and AUUW, and that there was no imminent
       threat to Claude or Sammie to justify Claude’s unlawful possession of his father’s handgun.
¶ 14       The trial court found Claude not guilty of reckless discharge of a firearm, concluding that
       Claude “shot that firearm in the air intentionally,” that he did not shoot it “in anyone’s
       direction nor did he shoot it recklessly,” and therefore that Claude “did not endanger the
       bodily safety” of anyone. However, the trial court found Claude guilty on all six counts of
       AUUW predicated on his unauthorized possession of the handgun. The trial court’s entire
       ruling on this issue was as follows:
                   “I find the evidence has been uncontroverted. The defendant had a gun on him.
               He carried it on his person. And so the State has met each and every element of each
               and every one of those offenses. So I find the defendant guilty beyond a reasonable
               doubt.”
¶ 15       In his written motion for reconsideration, Claude argued that he “did not plan for any
       violence, or any use of a weapon,” nor did he even bring a gun with him on the night of the
       altercation. Rather, he “only defended his father by shooting the gun in the air, and took it
       away from the violent situation.” Claude argued that he was acquitted of reckless discharge
       and only remained in illegal possession of the weapon “for a matter of a couple of minutes, at
       most,” during which he was unloading the handgun before fully cooperating with police to
       locate the ejected bullets and submit to arrest. Under these circumstances, Claude argued, he
       should not have been found guilty of AUUW for possessing a firearm without a FOID card.
¶ 16       On January 20, 2016, the trial court heard argument on Claude’s motion to reconsider his
       guilty verdict and his motion for a new trial. Defense counsel argued that this was
       “something that was a spontaneous event [after which Claude] took himself away from the
       situation” and “[n]ever endangered anyone at the scene.” The State responded that Claude
       “did assert defense of another,” but that “you can’t bring a gun to a fist fight,” that he did not
       have a FOID card, and that “there is no necessity because he had no right *** he could have
       punched him [and] that would have been a defense of another person.” In reply, counsel for
       Claude argued he was protecting his father in an emergency, and “it was a necessity
       that—even [to] have it in his hand.” The trial court denied Claude’s motion to reconsider and
       his motion for a new trial, without comment.
¶ 17       On March 30, 2016, the trial court merged Claude’s AUUW charges into a single count
       and sentenced Claude, who had no felony background, to the minimum sentence, which was
       one year of incarceration, with credit for 188 days he had spent on electronic monitoring.




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¶ 18                                        II. JURISDICTION
¶ 19       Claude was sentenced on March 30, 2016, and filed his notice of appeal that same day.
       We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois
       Supreme Court Rules 603 and 606, governing appeals from final judgments of conviction in
       criminal cases. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶ 20                                         III. ANALYSIS
¶ 21        Claude was convicted of AUUW under section 24-1.6(a) of the Criminal Code of 2012,
       in that (1) he knowingly carried or concealed on his person an uncased and loaded pistol,
       (2) at a time when he was not on his own land, in his own abode, or in a fixed place of
       business or he was on public land, (3) that pistol was immediately accessible to him at the
       time he carried it, and (4) he did not have a FOID card or CCL. 720 ILCS 5/24-1.6(a)(1),
       (a)(3)(C); (a)(2), (a)(3)(A), (a)(3)(C), (a)(3)(A-5) (West 2014). The burden of proving the
       defendant’s guilt beyond a reasonable doubt always rests on the State (People v. Abadia, 328
       Ill. App. 3d 669, 679 (2001)), and once an affirmative defense has been raised, the State has
       the burden of proving the defendant guilty beyond a reasonable doubt as to that issue (People
       v. Guja, 2016 IL App (1st) 140046, ¶ 46).
¶ 22        Claude argues that the evidence at trial was insufficient to support a conviction for
       AUUW, based on possessing a weapon without a FOID card, because the evidence
       demonstrated that, under the circumstances, it was necessary for him to possess the firearm in
       question to adequately defend himself and his father. When considering the sufficiency of the
       evidence, the relevant question on appeal 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. People v. Hall, 194 Ill. 2d 305, 329-30
       (2000) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
¶ 23        To properly raise an affirmative defense, a defendant is required to present some
       evidence on the issue, unless the State’s evidence itself raises the defense. People v. Kite, 153
       Ill. 2d 40, 44-45 (1992). “Generally, the quantum of proof necessary to raise an affirmative
       defense is evidence sufficient to raise a reasonable doubt as to defendant’s guilt or
       innocence,” which is a relatively low threshold. (Internal quotation marks omitted.) Id. at 44.
¶ 24        Use of force in self defense or defense of another includes the following elements:
       (1) unlawful force threatened against a person, (2) the person threatened was not the
       aggressor, (3) the danger of harm was imminent, (4) the use of force (by the threatened
       person) was necessary, (5) the person threatened actually and subjectively believed a danger
       existed that required the use of force applied, and (6) the beliefs of the person threatened
       were objectively reasonable. People v. Gray, 2017 IL 120958, ¶ 50 (citing 720 ILCS 5/7-1
       (West 2014)).
¶ 25        The State’s first argument is that self defense is not available to negate a charge of
       AUUW because the second amendment allows the State to impose regulations for carrying
       weapons. According to the State, “the failure to have been issued a currently valid license
       under the Concealed Carry Act at the time of the offense, means that defendant’s reliance
       upon his right to self defense is not valid as his conduct is not protected by the Second
       Amendment right to self defense.” The State cites no case law in support of this proposition,
       and it is simply not correct. Claude nowhere asks to be permitted to walk around armed with
       a firearm without a FOID card or CCL, in derogation of the state’s clear power to

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       meaningfully regulate the possession of firearms. See People v. Aguilar, 2013 IL 112116,
       ¶ 21. Rather, he acknowledges that his possession violated the law but argues that his brief,
       unlawful possession of a handgun was justified because it was necessary to defend himself
       and his father.
¶ 26       Prior to oral argument, the defense brought to this court’s attention the decision in
       Harmon v. State, 849 N.E.2d 726 (Ind. Ct. App. 2006). In that case the Indiana Court of
       Appeals held that evidence of self defense should have been allowed on a charge of unlawful
       possession of a firearm by a violent felon. The Indiana court agreed with courts of several
       other states that the prohibition on a felon possessing a firearm was “not intended to affect
       his or her right to use a concealable firearm in self-defense,” but only “to prohibit members
       of the affected classes from arming themselves with concealable firearms or having such
       weapons in their custody or control in circumstances other than those in which the right to
       use deadly force in self-defense exists or reasonably appears to exist.” Id. at 734.
¶ 27       There appears to be no Illinois case raising this precise issue, but this court accepted the
       analogous defense of necessity for an unlawful possession of a gun in People v. Gullens,
       2017 IL App (3d) 160668. In Gullens, we reviewed the revocation of a defendant’s
       conditional discharge for a prior felony conviction after he was found to have been in
       unlawful possession of a handgun for approximately 10 minutes between discovering that his
       associate stole it and returning it to its owner. Id. ¶¶ 19-25. The defendant had gone to a local
       gun store with several other people and left without realizing that one of them stole a
       handgun from the store. Id. ¶ 5. Later that day, he learned of the theft and took the handgun
       from his friend in order to immediately return it. Id. ¶ 12. The State argued that as soon as the
       defendant took the handgun, he committed unlawful possession of a weapon by a felon in
       violation of the terms of his conditional discharge. Id. ¶¶ 7, 24. However, the defendant
       argued that he was blameless in the circumstances of the theft and that his only reasonable
       option was to take the stolen gun back to the store because he doubted his friend would do
       so, and he did not want the gun to be sold or used in a future crime. Id. ¶ 23.
¶ 28       We agreed, finding that the defendant in Gullens was “without blame in occasioning or
       developing the situation that resulted in the theft,” returning the gun himself was the sole
       option available, and returning it “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.” Id.
¶ 29       Self defense, defense of another, and necessity are all justification defenses that employ a
       similar balancing of the circumstances a defendant faced against the actions he took. See 720
       ILCS 5/7-1, 7-13 (West 2014); see also People v. Houser, 305 Ill. App. 3d 384, 392 (1999)
       (noting that, although “compulsion and necessity defenses are comprised of different
       elements,” the two “are closely linked, sharing the same factual basis”). For all the reasons
       that necessity can be raised as a defense to an AUUW charge, so can self defense—which is
       itself a type of necessity, justifying the use of force when an immediate, greater evil threatens
       a person who initiated no violence and had no other recourse. The State’s right and need to
       regulate guns does not mean that a criminal defendant cannot raise such a defense to a gun
       charge.
¶ 30       On the merits of self defense, the State claims that it negated elements (1), (2), and
       (4)—respectively, that imminent unlawful force was threatened, that Claude was not the
       aggressor, and that the use of force by Claude was necessary. Gray, 2017 IL 120958, ¶ 50.

                                                   -6-
       However, in our view, no reasonable trier of fact could have found any of these elements to
       be missing or that the threat was not imminent. The facts were undisputed that the three men
       who answered the door pushed the defendant or his father and continued to threaten to use
       further force by yelling, in reference to Claude, “I will empty the caps in his a***.” The
       evidence is also undisputed that Claude had come to pick up his daughter and his clothes, not
       to pick a fight. The unrebutted testimony was that Claude and his father were attacked
       without provocation, 73-year-old Sammie suffered injuries as a result of being knocked off of
       the porch, and the three men coming out of the house were continuing to threaten them. All
       of this transpired before Claude reached for the handgun, and none of it was initiated by him.
       The entire episode took only minutes. Throughout that time, Claude retained a reasonable
       concern for his and his father’s safety.
¶ 31        The record also indicates that Claude saw a bulge under Ra-Ra’s shirt that Claude
       believed was a weapon. Innumerable cases in the search or seizure context stand for the
       proposition that such an observation, conveyed through credible and uncontroverted
       testimony, can give rise to the inference that a person is armed and presents an immediate
       danger. See, e.g., People v. Morales, 221 Ill. App. 3d 13, 18 (1991) (a “characteristic bulge”
       in the suspect’s clothing gave a police officer reason to believe the defendant was armed).
       Although no handgun was recovered from the scene of the attack, no testimony in the record
       disputes Claude’s account that he believed Ra-Ra was armed.
¶ 32        It is also undisputed that the actions Claude took were reasonably necessary. He faced a
       genuine dilemma when the men on the porch continued to threaten him and his father.
       Regardless of whether the men who had attacked him had a gun, he had a legitimate fear of
       injury to himself and further injury to his father, who was already immobilized with injuries.
       It was not unreasonable for Claude to leave the scene with the weapon rather than leave it
       there, where the three aggressors could have used it and where his incapacitated father was
       neither able to secure it nor use it to defend himself. Claude’s conduct after leaving the
       altercation—manually unloading the handgun and identifying the ejected bullets for the
       police—reveals that Claude attempted to minimize or eliminate any harm resulting from his
       continued possession of the weapon. No rational trier of fact could have found that the State
       negated any element of Claude’s claim of self defense, and we find that defense justifies his
       conduct in this instance.
¶ 33        When this court at oral argument asked the State about the related defense of necessity, as
       opposed to self defense, the State responded that the necessity defense was likely the “proper
       situation that would apply to these facts.” Necessity does not require the defendant to show
       any imminent risk of harm. Rather, to establish a defense of necessity, the person claiming
       the defense (1) must be without blame in occasioning or developing the situation and
       (2) must have reasonably believed that his conduct was necessary to avoid a greater public or
       private injury than that which might have reasonably resulted from his own conduct. Guja,
       2016 IL App (1st) 140046, ¶ 47 (citing 720 ILCS 5/7-13 (West 2014)). This “usually
       involves the choice between two admitted evils where other optional courses of action are
       unavailable, and ‘the conduct chosen must promote some higher value than the value of
       literal compliance with the law.’ ” People v. Boston, 2016 IL App (1st) 133497, ¶ 39 (quoting
       People v. Janik, 127 Ill. 2d 390, 399 (1989)). In reference to this defense, the State does not
       suggest that any element is missing but only that the defense of necessity “was not raised at
       trial” or in Claude’s appellate briefs.


                                                  -7-
¶ 34       We do not fault the trial court, but since the defendant consistently argued that he had no
       choice but to grab the gun and since Claude’s own use of force was minimal, the trial court
       might have clarified with trial counsel whether the defense that Claude was asserting was
       really necessity, more than self defense. We note that in Gullens, 2017 IL App (3d) 160668,
       we recognized a necessity defense for the same kind of crime charged here and that, indeed,
       necessity might be even more on point than self defense.
¶ 35       In any event, no rational trier of fact could find the State carried its burden with respect to
       negating either the defense of self defense or the defense of necessity, based on the
       undisputed evidence presented at trial. We thus reverse Claude’s conviction for AUUW. This
       ruling makes it unnecessary to address Claude’s request that we correct his mittimus.

¶ 36                                    IV. CONCLUSION
¶ 37      For the above reasons, we reverse Claude’s conviction for AUUW.

¶ 38      Reversed.




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