                                             2019 IL App (1st) 161626

                                                                                        FIRST DISTRICT
                                                                                     SECOND DIVISION
                                                                                            June 18, 2019
                                                           Modified upon denial of rehearing July 16, 2019

                                                    No. 1-16-1626

     THE PEOPLE OF THE STATE OF ILLINOIS,                      )                Appeal from the
                                                               )                Circuit Court of
                              Plaintiff-Appellee,              )                Cook County, Illinois.
                                                               )
     v.                                                        )                No. 15 CR 13839 01
                                                               )
     ANTERIUS BECK,                                            )                Honorable
                                                               )                James B. Linn,
                              Defendant-Appellant.             )                Judge Presiding.

             JUSTICE MASON delivered the judgment of the court, with opinion.
             Justices Pucinski and Hyman concurred in the judgment and opinion.

                                                     OPINION

¶1           Following a 2016 bench trial, defendant Anterius Beck was convicted of unlawful

     possession of a firearm by a street gang member and 10 counts of aggravated unlawful use of a

     weapon (AUUW), for which he was sentenced to five years’ imprisonment. On appeal, Beck

     argues that (i) the State failed to present sufficient evidence to establish that the Black P. Stones 1

     are a street gang as defined by the Illinois Streetgang Terrorism Omnibus Prevention Act (Act)

     (740 ILCS 147/10) (West 2014)); (ii) section 24-1.8 (a)(1), (b) of the Criminal Code of 2012

     (720 ILCS 5/24-1.8(a)(1), (b) (West 2014)), under which he was convicted, is unconstitutional

     because it impermissibly criminalizes a defendant’s status in violation of the eighth amendment;

     and (iii) the admission of a “certification” by the State to prove that he did not have a Concealed

     Carry License and Firearm Owner’s Identification Card violated his sixth amendment right to

             1
              The record refers to the “Black P. Stones” and the “L (or L.) Town Black P. Stones”
     interchangeably, but all names refer to the same entity. For clarity, we will refer to the “Black P. Stones”
     unless directly quoting from the record.
     No. 1-16-1626


     confrontation. For the reasons that follow, we reverse Beck’s conviction for unlawful possession

     of a firearm by a street gang member, affirm his convictions of AUUW, and remand for

     sentencing on the AUUW convictions.

¶2                                             BACKGROUND

¶3          Beck was charged with 1 count of unlawful possession of a firearm by a street gang

     member and 10 counts of aggravated unlawful use of a weapon after a police officer, during a

     foot chase on August 7, 2015, recovered a gun that Beck tossed to the ground.

¶4          At trial, three police officers from the Chicago Police Department gang investigation

     unit—Officers Albert Wyroba, Paul Heyden, and Apacible 2—testified to the events of that day.

     At approximately 8 p.m. on August 7, Apacible and Wyroba were performing surveillance on the

     700 block of North Lorel Avenue in Chicago, while Heyden was working as an enforcement

     officer in the same location. Apacible received information regarding a black male wearing a

     blue sweatshirt, white T-shirt, and red pants, who was seen in the area armed with a gun. Wyroba

     observed a man matching that description, identified in court as Beck, place a handgun into his

     front right pocket while standing among a crowd of approximately 20 other individuals. Wyroba

     alerted enforcement officers.

¶5          Heyden received the alert to detain Beck and exited his unmarked Chicago police vehicle,

     at which point Beck saw the officer and began running.

¶6          Heyden and Wyroba, who also saw Beck flee, immediately gave chase. As Beck headed

     west through a gangway, Apacible joined the pursuit. At this point, Beck took the gun out of his

     right pocket and threw it to the ground. Heyden recovered the gun while Apacible and Wyroba

     continued to give chase. Beck was ultimately detained at an elementary school by Apacible and

     Wyroba.
            2
             Officer Apacible’s first name is not mentioned in the record.


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¶7             Heyden stood over the gun until another officer secured it, at which point it was

       unloaded, placed into a bag, and inventoried. The firearm was a 9-millimeter Ruger handgun

       with two rounds in the magazine. Beck was arrested and transported to the police station.

¶8             After Beck waived his Miranda rights, he spoke to two of the officers. Beck told the

       officers that he had been a member of the Black P. Stones for five years and he held the position

       as the “chief of the shorties” of the “L Town Black P. Stones” and that he had been blessed in by

       their chief.

¶9             Officer Wyroba testified based on his eight years’ experience as a gang officer that to be

       “blessed” meant to become an active member of the Black P. Stones. Officer Wyroba further

       testified that the Black P. Stones are a street gang that controls the narcotics and weapons trade

       in an area on the west side of Chicago. That area included Kinzie to Iowa Streets, and Laramie to

       Central Avenues. Officer Wyroba testified that Beck had a tattoo on one of his forearms

       depicting the street signs of Lorel and Huron, which signified the Black P. Stones’ control of the

       area. The State introduced into evidence a photograph depicting Beck’s forearm tattoos.

¶ 10           The State also introduced into evidence a certified letter from the Illinois State Police

       Division of Administration stating that Beck had neither a Firearm Owner’s Identification Card

       (FOID card) nor Concealed Carry License (CCL). Finally, the State offered into evidence a

       certified copy of Beck’s adjudication of delinquency for robbery in case number 14 JD 03937.

       Beck did not object to the admission of either document.

¶ 11           After the State rested, the trial court denied Beck’s motion for a directed finding. Beck

       rested without presenting any evidence.




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       No. 1-16-1626


¶ 12           The trial court found Beck guilty on all counts. The court merged the convictions and

       sentenced Beck to five years in the Illinois Department of Corrections, which he has fully

       served. 3 This appeal follows.

¶ 13                                                  ANALYSIS

¶ 14           Initially, we address Beck’s challenge to the sufficiency of the evidence to convict him of

       unlawful possession of a weapon by a street gang member. A challenge to the sufficiency of the

       evidence requires us to view the trial evidence in the light most favorable to the prosecution and

       inquire whether any rational trier of fact could have found the essential elements of the crime

       beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185

       Ill. 2d 532, 541 (1999). A criminal conviction will not be reversed “unless the evidence is so

       improbable or unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt.”

       People v. Graham, 392 Ill. App. 3d 1001, 1009 (2009). It is the function of the trier of fact to

       assess the credibility of the witnesses, determine the appropriate weight of the testimony, and

       resolve conflicts or inconsistencies in the evidence. Id.

¶ 15           The State must prove every essential element of the crime beyond a reasonable doubt.

       People v. Maggette, 195 Ill. 2d 336, 353 (2001). In the context of this case, the State was

       required to prove that Beck knowingly

               “possesses, carries, or conceals on or about his or her person a firearm and firearm

               ammunition while on any street, road, alley, gangway, sidewalk, or any other

               lands, except when inside his or her own abode or inside his or her fixed place of


               3
                Beck’s notice of appeal was filed on May 18, 2016. The record on appeal was not filed until
       December 12, 2016, and it was another 16 months before Beck, represented by the Office of the State
       Appellate Defender, filed his opening brief. This court has previously commented on chronic delays in
       criminal appeals that result in a defendant serving the entirety or the majority of his sentence before the
       appeal is ready for consideration by the court. See People v. Dailey, 2018 IL App (1st) 152882; People v.
       Cisco, 2019 IL App (4th) 160515. We continue to be troubled by the delays in resolving these appeals.


                                                          -4-
       No. 1-16-1626


              business, and has not been issued a currently valid Firearm Owner’s Identification

              Card and is a member of a street gang.” 720 ILCS 5/24-1.8(a)(1) (West 2014).

       A street gang is defined as

              “any combination, confederation, alliance, network, conspiracy, understanding, or

              other similar conjoining, in law or in fact, of 3 or more persons with an

              established hierarchy that, through its membership or through the agency of any

              member engages in a course or pattern of criminal activity.” 740 ILCS 147/10

              (West 2014).

¶ 16          Here, Beck challenges the State’s proof as to the element of “[c]ourse or pattern of

       criminal activity.” The Act defines a course or pattern of criminal activity as:

              “[Two] or more gang-related criminal offenses committed in whole or in part

              within this State when:

                              (1) at least one such offense was committed after the effective date

                          of this Act [(January 1, 1993)];

                              (2) both offenses were committed within 5 years of each other; and

                              (3) at least one offense involved the solicitation to commit,

                          conspiracy to commit, attempt to commit, or commission of any

                          offense defined as a felony or forcible felony under the Criminal Code

                          of 1961 or the Criminal Code of 2012.” Id.

¶ 17          As proof of the element of course or pattern of criminal activity, the State cites the

       testimony of Office Wyroba, who had eight years of experience as a gang officer. Specifically,

       Wyroba testified that throughout his career he investigated “gang crimes’ including homicides,

       aggravated batteries, and “other gun weapons related crimes.” With regard to the Black P.




                                                       -5-
       No. 1-16-1626


       Stones, Wyroba testified that they were a street gang that controlled “the narcotics and weapons

       trade in a specific area on the west side [of Chicago].”

¶ 18             Beck maintains that this testimony was insufficient because neither Wyroba nor any other

       witness testified to two specific crimes the Black P. Stones committed within five years of each

       other after 1993, the effective date of the Act. We agree. Officer Wyroba’s general testimony

       that the Black P. Stones controlled the trade of narcotics and weapons, without more, does not

       establish a course or pattern of criminal activity as that term is defined in the Act. The testimony

       lacks any reference to specific crimes or dates, which the Act requires.

¶ 19             We are unpersuaded by the State’s citation of People v. Murray, 2017 IL App (2d)

       150599, appeal allowed, No. 123289 (Ill. May 30, 2018). 4 In Murray, the defendant, also

       convicted of unlawful possession of a firearm by a street gang member, argued that the State’s

       evidence was insufficient to prove that the Latin Kings were a street gang because the State

       failed to show a “course or pattern of criminal activity” by the Latin Kings. Id. ¶ 80. There, the

       State introduced testimony by an officer who was qualified as a gang expert. Id. ¶ 82. The officer

       first testified that gangs use guns to protect their drugs, cash, and members from rival gangs and

       engage in intimidation, if necessary, to benefit the gang, before opining that the Latin Kings were

       a street gang. Id. We found this sufficient to prove the Latin Kings were a street gang, citing

       People v. Jamesson, 329 Ill. App. 3d 446, 460 (2002), for the proposition that “an expert on

       gangs may opine on the ultimate issue of whether an organization is a street gang engaged in a

       course or pattern of criminal activity without testifying to specific dates or incidents.” Murray,

       2017 IL App (2d) 150599, ¶ 83; see also People v. Berrios, 2018 IL App (2d) 150824, ¶ 22

       (same).


                At oral argument, the State urged us to postpone resolution of this case until the supreme court’s
                 4

       decision in Murray, but finding Murray distinguishable, we see no reason to do so.


                                                          -6-
       No. 1-16-1626


¶ 20           Here, however, neither Officer Wyroba nor any other testifying officer was qualified as

       an expert on gang activity. This is not a distinction without a difference. To be sure, while both

       experts and lay witnesses may opine as to an ultimate issue in a case (Richardson v. Chapman,

       175 Ill. 2d 98, 107 (1997)), a lay witness’s opinion cannot be based on scientific, technical, or

       other specialized knowledge within the scope of Illinois Rule of Evidence 702 (eff. Jan. 1, 2011),

       which prescribes the subject matter of expert testimony (People v. Brown, 2017 IL App (1st)

       142197, ¶ 58 (citing Ill. R. Evid. 701 (eff. Jan. 1, 2011))). A witness’s opinion regarding whether

       a particular organization is a “street gang” within the meaning of the Act is one that requires

       specialized knowledge. The Act defines “street gang” with great particularity, specifying the

       number of people that must be affiliated with the organization, the need for an “established

       hierarchy” and, of course, “a course or pattern of criminal activity” by the organization. See 740

       ILCS 147/10 (West 2014). Because Officer Wyroba was not qualified as an expert, his failure to

       testify to the basis of his opinion that the Black P. Stones was a street gang was fatal to the

       State’s case and insufficient to prove Beck’s possession of a firearm by a street gang member.

       Therefore, Beck’s conviction on this count is reversed. 5

¶ 21           Because we reverse Beck’s conviction for unlawful possession of a firearm by a street

       gang member based on the insufficiency of the evidence, we need not consider Beck’s argument

       that section 24-1.8(a)(1), (b) of the Criminal Code of 2012, under which he was convicted, is


               5
                This case may illustrate the old adage “Be careful what you wish for.” The State is now on
       notice that in every case in which the defendant is charged with unlawful possession of a firearm by a
       street gang member, it must satisfy the “street gang” element of the offense either through expert
       testimony or through evidence of two felonies committed by gang members within five years of each
       other after the Act’s effective date. This is true whether or not the defendant raises the issue at trial.
       Nothing says the State must use only non-violent felonies or two felonies that are remote in time from the
       offense with which the defendant is charged in order to prove this element of the offense. Clearly, most
       defendants faced with the admission of other gang crimes evidence that the State must introduce in its
       case in chief would likely prefer to stipulate that whatever gang the defendant is charged with being a
       member of, in fact, meets the statutory definition.


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       No. 1-16-1626


       unconstitutional. See Mulay v. Mulay, 225 Ill. 2d 601, 606 (2007) (reviewing court should decide

       cases whenever possible on nonconstitutional grounds).

¶ 22          Beck’s final argument concerns the admission of a certified letter from the Illinois State

       Police to prove that Beck had never been issued a FOID card or CCL. Beck argues that the letter

       was testimonial evidence, such that its admission violated his sixth amendment right to

       confrontation, because the declarant was not subject to prior cross-examination and was not

       shown to be unavailable and the affidavit was admitted substantively for its truth. We review

       de novo whether an out of court statement violates a defendant’s constitutional right to

       confrontation. See People v. Cox, 2017 IL App (1st) 151536, ¶¶ 55-58 (reviewing de novo

       alleged confrontation clause violation where facts were undisputed and trial court had no

       opportunity to consider the claim in the first instance).

¶ 23          The confrontation clause of both the federal and state constitutions provides that, in

       criminal prosecutions, a defendant shall be allowed to confront the witnesses against him. U.S.

       Const., amend. VI; Ill. Const. 1970, art. I, § 8. In Crawford v. Washington, 541 U.S. 36, 59

       (2004), the Supreme Court held that the sixth amendment prohibited the admission of out-of-

       court “testimonial” statements against a criminal defendant unless the declarant is unavailable

       and the defendant had a prior opportunity to cross-examine the declarant. This court has held that

       a notarized, certified letter alleging a defendant’s lack of a FOID card is testimonial in nature

       and, as such, a defendant is entitled to confront the author of the letter. See People v. Diggins,

       2016 IL App (1st) 142088, ¶¶ 16-17; see also Melendez-Diaz v. Massachusetts, 557 U.S. 305,

       307-10 (2009) (documents labeled as “certificates” are functionally equivalent to affidavits and

       are testimonial in nature).




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       No. 1-16-1626


¶ 24          As Beck acknowledges, he has failed to preserve his confrontation clause challenge for

       review by objecting at trial and in a written posttrial motion. See People v. Enoch, 122 Ill. 2d

       176, 186 (1988). His failure to do so operates as forfeiture as to this issue on appeal. People v.

       Ward, 154 Ill. 2d 272, 293 (1992). Nevertheless, Beck urges us to review for plain error, or,

       alternatively, contends that his counsel’s failure to object to the admission of the certification

       letter constituted ineffective assistance of counsel.

¶ 25          The plain-error doctrine allows a reviewing court to bypass a party’s forfeiture of an issue

       if the error is clear or obvious and either (1) the evidence was so closely balanced that the error

       alone threatened to tip the scales of justice against him, regardless of the seriousness of the error,

       or (2) the error was so serious that it affected the fairness of his trial and challenged the integrity

       of the judicial process, regardless of the closeness of the evidence. People v. Smith, 2016 IL

       119659, ¶ 39.

¶ 26          The State counters that Beck in fact acquiesced to the admission of the certified letter and

       the plain error doctrine is therefore inapplicable. We agree. While the plain error doctrine

       ordinarily excepts a defendant from the consequences of a procedural default, it is not applicable

       to a defendant who acquiesces in the complained-of error. People v. Stewart, 2018 IL App (3d)

       160205, ¶ 19. In other words, “a party cannot complain of error which that party induced the

       court to make or to which that party consented. The rationale behind this well-established rule is

       that it would be manifestly unfair to allow a party a second trial upon the basis of error which

       that party injected into the proceedings.” In re Detention of Swope, 213 Ill. 2d 210, 217 (2004).

¶ 27          Cox is instructive on this issue. There, the State sought to admit a certified letter

       reflecting that the defendant was not in possession of a FOID card as part of its proof that the

       defendant committed the offense of aggravated unlawful use of a weapon. Cox, 2017 IL App




                                                        -9-
       No. 1-16-1626


       (1st) 151536, ¶ 47. On appeal, the defendant argued that admission of the letter without allowing

       him to cross-examine the declarant violated the confrontation clause. Id. We noted that defense

       counsel had three opportunities to object to the use of the certified letter but at each opportunity

       he affirmatively stated he had no objection. Id. ¶ 74. Accordingly, we found no error on the part

       of the trial court where defendant “invited the trial court to admit the certificate” by failing to

       object. Id. ¶ 75. Contra People v. Diggins, 2016 IL App (1st) 142088, ¶¶ 12, 16-17 (finding

       admission of certified letter indicating that defendant did not possess a FOID card violated

       confrontation clause where defense counsel objected to the letter’s introduction at trial).

¶ 28          Here, just as in Cox, Beck did not object to admission of the Illinois State Police

       certification either at trial or in a posttrial motion. Although the trial court did not ask whether

       there was an objection to the admission of the certification during trial, nothing prevented

       defense counsel from raising an objection. Cox, 2017 IL App (1st) 151536, ¶ 75 (“If the defense

       had objected at any point during trial ***, the State could have easily remedied the problem by

       simply calling the State employee to the stand.”). During closing argument, defense counsel also

       did not mention the certification or dispute whether the State proved beyond a reasonable doubt

       that Beck lacked a FOID card or CCL. Finally, counsel did not raise the claimed error in Beck’s

       posttrial motion. Under these circumstances, we conclude that Beck acquiesced in the admission

       of the certified letter, thus precluding plain-error review. See People v. Boston, 2018 IL App

       (1st) 140369, ¶ 109 (invited errors not subject to review for plain error).

¶ 29          In any event, contrary to Beck’s contention, the evidence on this issue was not so closely

       balanced so as to merit plain error review. Beck’s own actions of discarding the gun while

       running from the police could lead a reasonable fact finder to infer that Beck’s possession of the

       firearm was illegal, i.e., that he did not have a FOID card or a CCL. Nor does a confrontation




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       No. 1-16-1626


       clause violation amount to structural error under the second prong of plain error review. See Cox,

       2017 IL App (1st) 151536, ¶ 87.

¶ 30          In the alternative, Beck argues that his counsel’s decision not to object to the admission

       of the certified letter constitutes ineffective assistance. To establish ineffective assistance of

       counsel, a defendant must show the conduct of defense counsel fell below an objective standard

       of reasonableness and, but for counsel’s deficient performance, a reasonable probability exists

       the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687-

       88, 694 (1984). If we determine that a defendant has failed to satisfy one prong of the Strickland

       analysis, we need not consider whether he can satisfy the remaining prong. People v. Graham,

       206 Ill. 2d 465, 476 (2003).

¶ 31          There is a strong presumption that counsel’s challenged action or inaction was the

       product of trial strategy. People v. Dupree, 2018 IL 122307, ¶ 44. Stated differently, trial

       counsel’s strategic decisions are entitled to substantial deference. People v. Lucious, 2016 IL

       App (1st) 141127, ¶ 31. Matters of trial strategy include decisions regarding what matter to

       object to and when to object. People v. Perry, 224 Ill. 2d 312, 344 (2007).

¶ 32          In Cox, we rejected the defendant’s similar claim of ineffective assistance of counsel,

       holding “the only way that defense counsel’s decision not to object to the certification could

       possibly be ineffective assistance was if defendant actually had a FOID card and the certification

       was in error. Otherwise, counsel’s decision to waive any objection to its admission was a matter

       of trial strategy.” (Emphasis in original.) Cox, 2017 IL App (1st) 151536, ¶ 88. Here, nothing in

       the record suggests Beck possessed a valid FOID card or CCL. Instead, defense counsel’s theory

       of the case was that Officer Wyroba was incredible and there was no evidence the gun recovered

       from Beck was operable. Our review of the record reveals that counsel’s decision not to object to




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       No. 1-16-1626


       the admission of the certified letter was strategic, as he had no reason to highlight Beck’s failure

       to possess a FOID card or CCL. Because Beck cannot overcome the strong presumption that

       counsel’s decision not to object to the certified letter was sound trial strategy, Beck’s claim of

       ineffective assistance fails.

¶ 33           As a final matter, we note that, because the court merged the convictions of AUUW with

       the conviction of unlawful possession of a firearm by a street gang member, it did not impose a

       sentence on the AUUW convictions. Having vacated the unlawful possession offense, we must

       determine whether we have jurisdiction to remand for sentencing on the 10 counts of AUUW. 6

¶ 34           The final step in a criminal judgment is a sentence; without a sentence, we ordinarily

       cannot entertain an appeal due to lack of jurisdiction. See People v. Relerford, 2017 IL 121094,

       ¶ 71. However, our supreme court noted a limited exception to this rule in People v. Dixon, 91

       Ill. 2d 346 (1982). In Dixon, the trial court (incorrectly) found that the defendant’s conviction

       for two lesser offenses merged into his convictions for two more serious offenses and so did not

       impose sentence on those lesser offenses. Id. at 349. On appeal, this court reversed one of the

       sentenced convictions, but declined the State’s request to remand for sentencing on the lesser

       (unsentenced) convictions. Id.

¶ 35           The State appealed and the supreme court reversed, holding that the “anomalous”

       situation authorized this court to remand for imposition of sentence. Id. at 353. The court

       reasoned that even though the unsentenced convictions were not final orders, both the sentenced

       and unsentenced convictions “all arose from a series of separate but closely related acts.” Id.

       This, coupled with the fact that the unsentenced convictions were “intimately related to and



               6
                Although Beck has served the entirety of his sentence on the street gang-related offense
       and cannot be sentenced to any greater term, we address the issue of sentencing on the AUUW
       convictions for the sake of completeness and clarity of Beck’s criminal record.


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       ‘dependent upon’ the [sentenced] convictions” allowed this court to remand for sentencing. Id.

       (quoting Ill. S. Ct. R. 615(b)(2)).

¶ 36           Similarly, here, Beck’s (sentenced) conviction for unlawful possession of a weapon by a

       street gang member and his (unsentenced) convictions for AUUW are “intimately related” to

       each other, arising from the same act. And, just as in Dixon, the trial court’s reasoning for

       declining to sentence Beck on the AUUW offenses is clear from the record: the court merged

       those offenses into the more serious possession offense. Contra Relerford, 2017 IL 121094, ¶ 74

       (where record was silent as to reason for trial court’s failure to sentence defendant on three

       offenses for which he was convicted, appellate court lacked jurisdiction to address merits of

       those convictions or remand for sentencing). Accordingly, we conclude that we have jurisdiction

       to remand for sentencing on the AUUW convictions.

¶ 37                   Modified Opinion on the Denial of the State’s Petition for Rehearing

¶ 38           In its petition for rehearing, the State contends that instead of reversing outright, we

       should remand for a new trial. The State argues that we have contravened the well-established

       rule that in determining whether retrial is permitted under the double jeopardy clause, we should

       consider Wyroba’s gang-related testimony even though it was improperly admitted. But we

       never said Wyroba’s testimony was inadmissible; rather, we concluded it was insufficient to

       establish a necessary element of the offense because Wyroba was never qualified as an expert.

       Even considering Wyroba’s conclusory statement that the Black P. Stones organization is a street

       gang, the record still fails to include the facts necessary to support that conclusion—whether

       admitted properly or improperly—and is, therefore, insufficient to sustain Beck’s conviction.

       Consequently, outright reversal is warranted.




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¶ 39                                           CONCLUSION

¶ 40          We reverse Beck’s conviction for unlawful possession of a firearm by a street gang

       member and affirm his conviction on 10 counts of aggravated unlawful use of a weapon.

¶ 41          Affirmed in part, reversed in part, and remanded for sentencing.




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