                                    2019 IL App (1st) 163182

                                                                               SIXTH DIVISION
                                                                               MARCH 29, 2019
No. 1-16-3182


THE PEOPLE OF THE STATE OF ILLINOIS,                        )       Appeal from the
                                                            )       Circuit Court of
       Plaintiff-Appellee,                                  )       Cook County.
                                                            )
v.                                                          )       No. 15 CR 20308
                                                            )
ROBERT SCHULTZ,                                             )       Honorable
                                                            )       Thaddeus L. Wilson,
       Defendant-Appellant.                                 )       Judge Presiding.


       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Presiding Justice Delort and Justice Connors concurred in the judgment and opinion.

                                           OPINION

¶1     The defendant-appellant, Robert Schultz, seeks a reduction of his Class 2 conviction for

unlawful use or possession of a weapon by a felon (UUWF) to a Class 3 offense, because he

claims that the State did not prove that he had a prior conviction for a “forcible felony.” For the

following reasons, we reject the defendant’s argument and affirm the judgment of the circuit

court of Cook County.

¶2                                    BACKGROUND

¶3     In December 2015, the defendant was charged by indictment with seven counts,

including two counts of UUWF (counts I and II) and five counts of aggravated unlawful use of a

weapon (counts III through V). With respect to count I, which is the only relevant count in this

appeal, the indictment alleged that the defendant “committed the offense of unlawful use or

possession of a weapon by a felon in that he knowingly possessed on or about his person any

firearm, after having been previously convicted of the felony offense of felony firearm under
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case number 12-009438 (Wayne County, Michigan), in violation of Chapter 720 Act 4 Section

24-1.1(a) of the Illinois Compiled Statutes ***.” The indictment also specified that “The State

shall seek to sentence him as a Class 2 offender in that he has been previously convicted of

felony firearm under case number 12-009438 (Wayne County, Michigan).”

¶4      The circuit court conducted a bench trial on October 6, 2016. The State first called a

witness from the Illinois State Police Firearm Services Bureau, who testified that there was no

record of the defendant ever having a Firearm Owner Identification Card or concealed carry

license. The State then called the defendant’s arresting officer, Michael Power. Officer Power

testified that he was driving an unmarked police vehicle when he noticed a number of

individuals, including the defendant, loitering near a van. When Officer Power approached the

van to conduct a field interview, the defendant removed a handgun from his waistband and

“tossed it underneath the car onto the ground.” Officer Power arrested the defendant and

recovered the handgun at the scene.

¶5      In addition to this testimony, the State also offered into evidence the following

stipulation: “It is hereby stipulated by and through the parties, the defendant, Robert Schultz, has

prior felony convictions for the offenses of assault with a dangerous weapon and carrying a

firearm while committing or attempting to commit a felony in Wayne County, Michigan, under

Case 12-009438.” Defense counsel agreed that this was “So stipulated.” The State rested

following the stipulation.

¶6      The defendant called a single witness, Ronnie Burnett, who testified that he was with the

defendant at the time of his arrest but denied seeing the defendant with a gun. The defendant

elected not to testify.




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¶7     After closing arguments, the trial court found the defendant guilty of all counts. The court

ordered a presentencing investigation report (PSI report) and scheduled posttrial motions and

sentencing.

¶8     The defendant’s PSI report reflected a prior conviction in Michigan for “Assault With a

Dangerous Weapon” under case No. 1200943801. Attached to the PSI report is a “Criminal

History Record” from Michigan, reflecting that in January 2013 defendant was convicted of

felony “assault with a dangerous weapon” under section 750.82 of the Michigan Penal Code.

Mich. Comp. Laws § 750.82 (1994).

¶9     On November 18, 2016, the court denied the defendant’s motion for new trial and

proceeded to sentencing. In aggravation, the State referenced the two prior Michigan convictions

in the trial stipulation but did not offer specific evidence about the circumstances of either

conviction. The State requested a sentence in the range of three to seven years.

¶ 10   After hearing evidence in mitigation, the court determined that all counts merged into

count I for UUWF and sentenced the defendant on that count to four years in the Illinois

Department of Corrections, plus two years of mandatory supervised release. The transcript does

not reflect that the court orally stated whether it found that the offense was a Class 2 or Class 3

felony. However, the court’s written sentencing order specified a Class 2 conviction for UUWF.

¶ 11   After the defendant’s motion to reconsider sentence was denied, defendant filed a timely

notice of appeal. Accordingly, we have jurisdiction. Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014).

¶ 12                                      ANALYSIS

¶ 13   On appeal, the defendant does not dispute that he possessed a firearm on the date of his

arrest. Rather, he raises a single sentencing issue. He asserts that his Class 2 UUWF conviction

should be reduced to a Class 3 conviction, because the State failed to prove that either of the



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prior Michigan convictions referenced in the trial stipulation constituted a “forcible felony.” See

720 ILCS 5/24-1.1(e) (West 2016) (violation of the UUWF statute by a person “who has been

convicted of a forcible felony” is a Class 2 felony, rather than a Class 3 offense).

¶ 14   The defendant acknowledges the trial stipulation referencing two prior Michigan

convictions, but he argues that the State failed to prove that either of the stipulated convictions

was a “forcible felony” as that term is defined by section 2-8 of the Criminal Code of 2012

(Code) (id. § 2-8). He claims that because neither of the prior Michigan offenses is explicitly

named as a “forcible felony” in section 2-8, the State was required to offer additional evidence

regarding the circumstances of the prior crimes, to prove that either fell within the so-called

“residual clause” of section 2-8 of the Code. See id. (extending the definition of a forcible felony

to “any other felony which involves the use or threat of physical force or violence against any

individual”). The defendant thus argues that the State failed to meet its burden to prove a prior

“forcible felony,” as necessary to warrant a Class 2 UUWF conviction.

¶ 15   The defendant acknowledges that this issue was forfeited, as he did not raise this

argument in the trial court. Nonetheless, he urges that we should consider it under the plain-error

rule, which “bypasses normal forfeiture principles and allows a reviewing court to consider

unpreserved claims of error in specific circumstances.” People v. Thompson, 238 Ill. 2d 598, 613

(2010). The defendant relies on the second prong of the plain-error doctrine, which applies if “a

clear or obvious error occurred and that error is so serious that it affected the fairness of the

defendant’s trial and challenged the integrity of the judicial process.” (Internal quotation marks

omitted.) Id.

¶ 16   The State responds that there was no error and thus no plain error. See id. (“The first step

of plain-error review is determining whether any error occurred.”). The State urges that the trial



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stipulation was sufficient to support his Class 2 UUWF conviction, even without evidence of the

specific facts underlying the prior Michigan convictions, because both Michigan convictions

were “inherently forcible felonies.” That is, the State contends that either of the prior Michigan

offenses fell within the residual clause of section 2-8 and, thus, both were forcible felonies

supporting enhancement to a Class 2 conviction.

¶ 17    The sentencing provision of the UUWF statute states:

                “Violation of this Section by a person not confined in a penal

                institution shall be a Class 3 felony for which the person shall be

                sentenced to no less than 2 years and no more than 10 years ***.

                Violation of this Section by a person not confined in a penal

                institution who has been convicted of a forcible felony *** is a

                Class 2 felony for which the person shall be sentenced to not less

                than 3 years and not more than 14 years.” (Emphasis added.) 720

                ILCS 5/24-1.1(e) (West 2016).

In other words, “the offense of unlawful use of a weapon by a felon is enhanced from a Class 3

felony to a Class 2 felony when the defendant has previously been convicted of a forcible felony.

[Citation.]” People v. Carmichael, 343 Ill. App. 3d 855, 859 (2003).

¶ 18    The term “forcible felony” is defined by section 2-8 of the Code. See 720 ILCS 5/2-8

(West 2016). Section 2-8 of the Code first sets forth a list of certain enumerated offenses that

constitute forcible felonies, 1 which is followed by a residual clause that encompasses “any other

felony which involves the use or threat of physical force or violence against any individual.” Id.



        1
         The enumerated offenses are “treason, first degree murder, second degree murder, predatory
criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual assault, robbery,
burglary, residential burglary, aggravated arson, arson, aggravated kidnaping, kidnaping, aggravated

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¶ 19    The parties agree that neither of the Michigan convictions referenced in the stipulation at

defendant’s trial is included in section 2-8’s list of enumerated offenses. Thus, the crux of this

appeal is whether either of those prior Michigan convictions falls within the residual clause of

section 2-8. “Interpretation of the forcible felony statute is an issue of law, which we review

de novo.” People v. Sanderson, 2016 IL App (1st) 141381, ¶ 5 (citing People v. Belk, 203 Ill. 2d

187, 192 (2003)).

¶ 20    “An unenumerated felony falls within the residual clause if the defendant ‘contemplated

that the use of force or violence against an individual might be involved and [was] willing to use

such force or violence.’ (Emphasis in original.) [Belk, 203 Ill. 2d at 196.] But the defendant need

not actually inflict physical injury. [Citation.]” Id.

¶ 21    “[C]rimes fall under the residual clause in one of two ways. First, where one of a crime’s

elements is ‘a specific intent’ to carry out a violent act, every instance of that crime ‘necessarily

qualifies’ as a forcible felony.” Id. ¶ 6 (quoting People v. Thomas, 407 Ill. App. 3d 136, 139-40

(2011)).

Thus, certain crimes, by definition, are necessarily considered forcible felonies, even absent

specific evidence of the circumstances of the prior offense. For example, in Thomas, the

defendant challenged his conviction under the armed habitual criminal statute (which required

two predicate forcible felonies) on the grounds that “proof of his previous conviction for

attempted murder did not prove that he committed a forcible felony.” 407 Ill. App. 3d at 138-39.

Our court thus “review[ed] de novo the question of law as to whether evidence that a defendant

had a prior conviction for attempted murder, without any details about the crime, proves that he




battery resulting in great bodily harm or permanent disability or disfigurement.” 720 ILCS 5/2-8 (West
2016).

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committed a forcible felony.” Id. at 139. We held that attempted murder is necessarily a forcible

felony:

                 “Because every attempted murder involves a specific intent to

                 cause death, the trier of fact who finds a person guilty of attempted

                 murder must find that the guilty person contemplated the use of

                 sufficient force to cause very serious injury, injury that can lead to

                 death. Accordingly, we hold that every attempted murder qualifies

                 as a forcible felony for purposes of the armed habitual criminal

                 statute ***.” Id. at 140.

¶ 22      Thus, to determine if a crime is inherently a forcible felony, we perform “an analysis of

the elements of the underlying offense to determine whether proof of those elements necessarily

entails the use or threat of force or violence against an individual.” Sanderson, 2016 IL App (1st)

141381, ¶ 6. Under that approach, we have held that attempted armed robbery is an “inherently

forcible felony” because it “requires evidence that a defendant possessed the specific intent to

knowingly take property from another by threat or use of force while armed with a firearm.”

People v. Brown, 2017 IL App (1st) 150146, ¶¶ 19-22. We have also held that vehicular

hijacking is an inherently forcible felony, because “the act of taking a motor vehicle from a

person by the use of force or by threatening the imminent use of force necessarily involves at

least the contemplation that violence might be necessary to carry out the crime.” People v.

Wooden, 2014 IL App (1st) 130907, ¶ 20.

¶ 23      “The second way a felony can qualify as a forcible felony, even if a crime does not have

violent intent as an element, is if the State proves that ‘under the particular facts of this case,’ the

defendant contemplated the use of force and was willing to use it.” Sanderson, 2016 IL App (1st)



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141381, ¶ 7 (quoting Belk, 203 Ill. 2d at 195). Our supreme court’s decision in Belk illustrates

this principle. The Belk defendant stole a vehicle and fled from police before crashing the

vehicle, resulting in two deaths. 203 Ill. 2d at 189. The defendant was convicted of felony

murder, based on the predicate felony of aggravated possession of a stolen motor vehicle. Id. at

191. The defendant argued that the predicate offense was not a forcible felony, as required to

implicate the felony-murder statute. Id.

¶ 24   Because aggravated possession of a stolen motor vehicle was not one of the specifically

enumerated felonies in section 2-8 of the Code, our supreme court framed the issue as “whether,

under the facts of this case, Belk’s aggravated possession of a stolen motor vehicle involved the

use or threat of physical force or violence against any individual.” Id. at 193. Our supreme court

discussed whether there was “any evidence which would give rise to an inference that at some

point during his attempt to elude the police [defendant] contemplated that escape might involve

the use of force or violence against an individual.” Id. at 195. The court answered in the

negative, finding that, although Belk may have “acted recklessly,” the evidence “does not

support an inference that Belk contemplated that the use of force or violence against an

individual might be necessary in order for him to accomplish his escape.” (Emphasis in original.)

Id. Thus, our supreme court held that there was not a forcible felony supporting a felony murder

conviction. Id. at 197-98.

¶ 25   In addition to Belk, defendant relies on more recent decisions of our court holding that, if

a prior conviction was not inherently a forcible felony, then the State must offer specific

evidence to show that the prior crime involved the use or threat of force. Thus, in Sanderson,

2016 IL App (1st) 141381, our court reversed a conviction for the offense of being an armed

habitual criminal, to the extent it was premised upon a prior conviction for attempted residential



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burglary. We held that the attempted burglary was “not inherently a forcible felony, since its

elements do not include a specific intent to carry out a violent act.” Id. ¶ 9. Furthermore, the

State offered “no evidence that, under the particular facts of this case, Sanderson contemplated

the use of force.” Id. ¶ 11. Without such evidence, the State could not prove the defendant’s

“willingness to use violence against another, which would be necessary for his conviction to

constitute a forcible felony.” Id. ¶ 12.

¶ 26    The defendant also directs us to Carmichael, 343 Ill. App. 3d 855. Similar to the instant

appeal, Carmichael concerned whether a prior stipulated conviction was a forcible felony that

supported enhancement of a UUWF conviction to a Class 2 felony. Id. at 857-58. The

Carmichael defendant’s trial counsel stipulated that defendant had a prior conviction for armed

violence, but the State did not introduce evidence regarding the circumstances of that prior

offense. Id. at 858. We reasoned that, since the “record [was] silent as to the circumstances

surrounding the defendant’s armed violence conviction,” we could not assess whether the

defendant “contemplated that the use or threat of force or violence might be necessary to carry

out” the prior crime. Id. at 861. We further determined that armed violence was not an

“inherently violent” offense, as it could be “committed by merely possessing a firearm” during

the commission of a nonviolent felony. Id. 2 Thus, we concluded that the trial court erred in

enhancing the UUWF conviction to a Class 2 felony. Id.

¶ 27    The defendant’s opening brief relies on Carmichael and Sanderson to urge that the State

was required to offer proof of the particular facts and circumstances of the prior Michigan

convictions, beyond the trial stipulation, to prove that either offense was a forcible felony.

However, the defendant’s argument ignores our precedent holding that such particularized proof

        2
        Further, the parties in Carmichael agreed on appeal that the armed violence conviction was
“based upon [defendant’s] commission of the predicate felony of possession of a controlled substance.”
Carmichael, 343 Ill. App. 3d at 860.

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is not necessary, if a defendant’s prior conviction was for an inherently forcible felony. Indeed,

the Sanderson decision explicitly recognizes that “crimes fall under the residual clause [of

section 2-8] in one of two ways”; either the elements are such that “every instance of that crime

necessarily qualifies as a forcible felony,” or the State can prove that “under the particular facts

of this case, the defendant contemplated the use of force and was willing to use it.” (Internal

quotation marks omitted.) Sanderson, 2016 IL App (1st) 141381, ¶¶ 6-7.

¶ 28     The State urges that either of the two prior Michigan convictions referenced in the trial

stipulation inherently constitutes a forcible felony. First, to the extent the stipulation referred to

the defendant’s prior felony conviction for “assault with a dangerous weapon,” the State argues

that this stipulation (as well as the PSI report and other documents in the record) prove that he

was convicted under Michigan’s felonious assault statute, section 750.82 of the Michigan Penal

Code (Mich. Comp. Laws § 750.82 (1994)). The State urges that the language of that statute, as

well as Michigan case law defining “assault,” establishes that this conviction necessarily

qualifies as a forcible felony.

¶ 29     In response, the defendant’s reply brief first argues that the State cannot rely on any

Michigan statute because “the prosecutor did not refer to the Michigan statutes [the defendant]

violated” at trial or during sentencing. The defendant does not dispute that the PSI report and

other record documents reflect that he was, in fact, convicted under section 750.82. However, he

argues that “[b]ecause the criminal history report was not introduced at trial and the prosecutor

never referred to the particular [Michigan] statutes *** at sentencing, it is improper for the State

to rely on them” in this appeal. The defendant essentially argues that, since the trial stipulation

did not cite a specific statute, the State cannot refer to any statute in its argument before our

court.



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¶ 30    We disagree. At trial, the defendant stipulated that he was convicted in Michigan of two

felonies, including “assault with a dangerous weapon.” We recognize that the State was

somewhat careless in crafting the wording of the stipulation, to the extent that it failed to include

a citation to the precise Michigan statute underlying that prior conviction. We certainly do not

mean to encourage that practice, and we admonish the State to be more precise in such

stipulations, especially when referencing prior out-of-state convictions. Nonetheless, we do not

find that this omission leads to reversible error in this case, as the defendant does not cite (and

we are not aware of) any authority that would preclude the trial court from taking notice of the

Michigan legal authorities that define the stipulated offense. As discussed below, those

authorities make clear that a felony for “assault with a dangerous” weapon in Michigan would be

premised under section 750.82. Further, the defendant does not dispute that the trial stipulation

referred to his prior conviction under section 750.82. 3

¶ 31    The defendant’s reply otherwise suggests that it is improper for our court to consider

whether an out-of-state statute describes a “forcible felony” for purposes of the Code section 2-

8’s residual clause. He acknowledges that “Illinois courts have evaluated Illinois statutes” to

determine if an offense is inherently a forcible felony under section 2-8 but points out that “the

State cites no cases where out of state statutes were examined.” We reject the defendant’s

suggestion. Our precedent indicates that we may conduct “an analysis of the elements of the

        3
          We note that other record documents make clear that the defendant was, in fact, convicted under
section 750.82 of the Michigan Penal Code. The PSI report references a conviction for “Assault with a
Dangerous Weapon” in case No. 1200943801; the Michigan criminal history records state (under the
same case number) that he was convicted of “Assault With [a] Dangerous Weapon,” explicitly
referencing “750.82” as the statutory basis for that conviction. The defendant does not dispute the
accuracy of these records. We recognize that these sentencing documents could not be relied upon by the
trial court as evidence that the prior conviction was for a violation of section 750.82; nonetheless, they
undermine any suggestion that the stipulated conviction at issue could have referred to some other
offense.



                                                    11
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underlying offense to determine whether proof of those elements necessarily entails the use or

threat of force or violence.” Sanderson, 2016 IL App (1st) 141381, ¶ 6. The defendant does not

cite any authority suggesting that we are precluded from applying that same analysis to crimes

committed in other jurisdictions. Moreover, nothing in section 2-8 of the Code suggests that only

a prior conviction under Illinois law may constitute a “felony which involves the use or threat of

physical force or violence against any individual.” 720 ILCS 5/2-8 (West 2016). Similarly, the

UUWF statute does not suggest that only Illinois forcible felonies may support a sentencing

enhancement to a Class 2 offense. See id. § 24-1.1(e).

¶ 32    We thus reach the question of whether the defendant’s prior Michigan conviction for

“assault with a dangerous weapon” constituted a forcible felony. The defendant urges that, even

assuming that he was “found guilty of felonious assault pursuant to [section 750.82 of the

Michigan Penal Code], this offense does not inherently constitute a forcible felony.” As set forth

below, we disagree.

¶ 33    Section 750.82 of the Michigan Penal Code is entitled “Felonious assault; violation in a

weapon free school zone” and provides, in relevant part:

                “Except as provided in subsection (2),[4] a person who assaults

                another person with a gun, revolver, pistol, knife, iron bar, club,

                brass knuckles, or other dangerous weapon without intending to

                commit murder or to inflict great bodily harm less than murder is

                guilty of a felony punishable by imprisonment for not more than 4

                years or a fine of not more than $2,000.00, or both.” Mich. Comp.

                Laws § 750.82 (1994).


        4
       Subsection (2) refers to a violation of subsection (1) “in a weapon free school zone.” Mich.
Comp. Laws § 750.82 (1994).

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¶ 34    We first note, as recognized by the parties, that Michigan lacks a statutory definition for

the crime of simple “assault.” However, in People v. Gardner, 265 N.W.2d 1 (Mich. 1978), the

Michigan Supreme Court approved of three separate definitions of criminal assault, derived from

three different treatises. First, the Michigan Supreme Court stated: “We adopt what Perkins on

Criminal Law *** says is the majority rule, namely a simple criminal assault is made out from

either an attempt to commit a battery or an unlawful act which places another in reasonable

apprehension of receiving an immediate battery.” (Internal quotation marks omitted). Id. at 7.

The Gardner court further approved definitions from two additional treatises. See id. (“We also

hold that either the Cyclopedia or the Bishop definition *** is an adequate definition of a form of

assault and that both forms are actionable in the criminal law.”). Thus, the Michigan Supreme

Court also approved two other definitions: (1) “[a]n assault is any attempt or offer with force or

violence to do a corporal hurt to another, whether from malice or wantonness, with such

circumstances as denote at the time an intention to do it, coupled with a present ability to carry

such intention into effect” and (2) “[a]n assault is any unlawful physical force *** creating a

reasonable apprehension of immediate injury to a human being.” (Internal quotation marks

omitted.) Id. at 6.

¶ 35    The State notes that two of the three definitions of assault approved in Gardner include

the term “force” and thus argues: “The fact that ‘force’ is a defined element of assault shows that

some measure of violence was not only contemplated but carried out by defendant.” The State

thus suggests that Gardner establishes that any assault is necessarily a forcible felony.

¶ 36    The defendant’s reply brief emphasizes the remaining definition approved by Gardner,

i.e., that “a simple criminal assault is made out from either an attempt to commit a battery or an

unlawful act which places another in reasonable apprehension of receiving an immediate



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battery.”(Internal quotation marks omitted.) Id. at 7. The defendant argues that, because this

definition does not “include either the use or threat of force” as an element, Gardner establishes

“that a Michigan felonious assault conviction does not inherently constitute a forcible felony in

Illinois.”

¶ 37    We disagree. First, we are not convinced that the Gardner definition relied upon by

defendant does not describe an inherently forcible act. That definition states that a simple

criminal assault is an “either an attempt to commit a battery or an unlawful act which places

another in reasonable apprehension of receiving an immediate battery.” (Internal quotation marks

omitted.) Id. We recognize that this definition does not use the precise terms “threat” or “force.”

Yet, even under this definition, we fail to see how one can attempt to commit a battery, or place

another in reasonable apprehension of receiving an immediate battery, without contemplating or

threatening the use of force. Notably, defendant does not even attempt to argue how one could

commit an assault under this definition without contemplating or threatening force or violence.

¶ 38    More importantly, whereas Gardner concerned the common-law definition of simple

assault, in this case, defendant stipulated to a Michigan felony conviction for “assault with a

dangerous weapon.” As discussed, the record makes clear that this referred to defendant’s

conviction under Michigan’s “felonious assault” statute (Mich. Comp. Laws § 750.82 (1994)). 5

Michigan authorities make clear that a conviction under this statute requires additional elements

beyond the commission of the “simple assault” defined in Gardner.

¶ 39    Significantly, in a decision just one year after Gardner, the Michigan Supreme Court held

that, in prosecutions for felonious assault under section 750.82, “the jury should be instructed

that there must be either an intent to injure or an intent to put the victim in reasonable fear or

        5
          Michigan courts refer to this statutory offense as either “assault with a dangerous weapon” or
“felonious assault.” See, e.g., People v. Bosca, 871 N.W.2d 307 (Mich. Ct. App. 2015) (using both terms
to refer to violations of section 750.82 of the Michigan Penal Code).

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apprehension of an immediate battery.” People v. Johnson, 284 N.W.2d 718, 718-19 (Mich.

1979). Thus, Michigan courts now recognize that “[t]o perpetrate a felonious assault, a defendant

must commit ‘(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or

place the victim in reasonable apprehension of an immediate battery.’ [Citation.]” People v. Nix,

836 N.W.2d 224, 230 (Mich. Ct. App. 2013); see also People v. Bosca, 871 N.W.2d 307, 325

(Mich. Ct. App. 2015) (“ ‘The elements of [assault with a dangerous weapon] are (1) an assault,

(2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable

apprehension of an immediate battery. [Citation.]”).

¶ 40   We note that this case law precedent refutes the argument in the defendant’s reply brief

that relies upon the portion of the felonious assault statute specifying that it is committed

“without intending to commit murder or to inflict great bodily harm less than murder.”

(Emphasis added.) Mich. Comp. Laws Ann. § 750.82 (West 1994). The defendant suggests that

“it cannot be said that a felonious assault conviction is inherently violent *** where an element

of felonious assault is that the defendant lack an intent to inflict severe bodily harm.” The

defendant’s argument is without merit, as it confuses the lack of intent to kill or inflict serious

bodily harm as equivalent to the lack of any intent to use or threaten force. However, the

Michigan case law precedent clarifies that a conviction under section 750.82 requires a finding

that defendant intended to injure or place the victim in reasonable apprehension of an immediate

battery.

¶ 41   Under this precedent, it is apparent that defendant’s stipulated Michigan conviction for

assault with a dangerous weapon included findings that defendant had made “either an attempt to

commit a battery or an unlawful act which place[d] another in reasonable apprehension of

receiving an immediate battery,” that he did so with a dangerous weapon, and that he acted with



                                                15
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“either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an

immediate battery.” Johnson, 284 N.W.2d at 718-19; Mich. Comp. Laws § 750.82 (1994).

Especially considering the requisite intent for this offense, we cannot see, and the defendant does

not attempt to articulate, how one could violate section 750.82 of the Michigan Penal Code

without “the use or threat of physical force or violence,” within the meaning of section 2-8 of the

Code (720 ILCS 5/2-8 (West 2016)). Thus, upon considering relevant Michigan authorities, we

hold that defendant’s prior conviction for violation of section 750.82 of the Michigan Penal Code

was inherently a forcible felony pursuant to section 2-8 of the Code.

¶ 42   As the State points out, it needed only to prove that one of the two stipulated prior

Michigan convictions was a forcible felony, in order to support the enhancement of the

defendant’s UUWF conviction to a Class 2 offense. See id. § 24-1.1(e). As we have determined

that the defendant’s stipulated conviction for “assault with a dangerous weapon” constituted a

forcible felony, we need not address the parties’ arguments regarding the other prior Michigan

conviction referenced in the trial stipulation, for “carrying a firearm while committing or

attempting to commit a felony.”

¶ 43   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 44   Affirmed.




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