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                              Appellate Court                             Date: 2016.02.22 15:05:54
                                                                          -06'00'




                   People v. Dixon, 2015 IL App (1st) 133303



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



District & No.    First District, Second Division
                  Docket No. 1-13-3303


Filed             December 22, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-19696; the
Review            Hon. Nicholas R. Ford, Judge, presiding.



Judgment          Reversed and cause remanded with directions.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Rachel M. Kindstrand, all
Appeal            of State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary P. Needham, and Lisa Sterba, Assistant State’s Attorneys, of
                  counsel), for the People.



Panel             JUSTICE NEVILLE delivered the judgment of the court, with
                  opinion.
                  Presiding Justice Pierce and Justice Hyman concurred in the judgment
                  and opinion.
                                             OPINION

¶1       Following a bench trial, Deleon Dixon, the defendant, was convicted of armed robbery and
     sentenced to 10 years’ imprisonment. On appeal, Dixon contends that his conviction for armed
     robbery should be reduced to robbery because the evidence was insufficient to establish that he
     was armed with a dangerous weapon that could be used as a bludgeon.
¶2       We find that the State failed to present evidence that the defendant was armed with a gun
     that had the weight or composition (metallic nature) of a dangerous weapon. In addition, we
     find that Dixon’s statement was unrebutted (1) that he carried a BB gun during the robbery,
     and (2) that the BB gun broke when it was dropped. Therefore, we hold that the evidence
     presented by the State failed to prove, beyond a reasonable doubt, that the defendant was
     armed with a gun that was a dangerous weapon because it could be used as a bludgeon.
     Accordingly, we reverse Dixon’s armed robbery conviction and remand for the trial court to
     enter a judgment of conviction for robbery and to impose an appropriate sentence.

¶3                                         BACKGROUND
¶4       Dixon and the codefendant, Dejuan Harris who has a separate appeal (No. 1-13-3892),
     were charged with two counts of armed robbery and two counts of aggravated unlawful
     restraint. Count II, which is pertinent to this appeal, charged both defendants with armed
     robbery in that they knowingly took property from the person or presence of Abdelaziz
     Almasri by the use of force or by threatening the imminent use of force, and that they carried,
     on or about their persons or were otherwise armed with, a dangerous weapon that could be
     used as a bludgeon.
¶5       At the simultaneous, but severed, bench trials of Dixon and Harris, Almasri testified, on
     direct examination through an interpreter, that he owned a store at 256 West 59th Street in
     Chicago. Almasri explained that he was in the back of the store when he saw men looking
     through the store’s windows at about 9 a.m. on September 15, 2012. Almasri became
     suspicious and walked to the front of the store where he locked himself inside the office.
¶6       Dixon and Harris entered the store and Dixon, who was holding what appeared to be a gun
     in the air, told Almasri not to move. While Dixon stood by the door with the gun, Harris
     jumped behind the counter and started removing lottery tickets, cigarettes, and medicine.
     Harris then took the gun from Dixon and stood by the front door while Dixon removed similar
     items from behind the counter. Both men then fled the store.
¶7       Almasri chased the men, but the defendants got into a car and drove away. Almasri notified
     the police and, when they arrived, he viewed the store’s surveillance videotape with an officer.
¶8       During cross-examination by Dixon’s attorney, Almasri testified that he did not see a
     weapon when the defendants entered the store. When Almasri was asked if he told Sergeant
     Pagan that he did not see a weapon, he testified that he did not recall exactly what he said.
     Finally, Almasri testified “[a]ctually, I saw him in the video camera with a gun.”
¶9       When cross-examined by Harris’s attorney, Almasri testified that when the defendants
     entered the store, he did not see a weapon. But, Almasri testified that when he looked from his
     office window, he saw the gun when the defendant raised his hand.




                                                -2-
¶ 10       Sergeant Dennis Pagan testified that he met with Almasri at his store and viewed the
       surveillance video. Almasri told Sergeant Pagan that he was not sure that he actually saw a
       weapon, and only confirmed that he saw a weapon when he looked at the surveillance video.
¶ 11       The surveillance video was admitted into evidence. It showed Dixon and Harris holding
       what appeared to be a handgun.
¶ 12       Dixon and Harris were subsequently arrested in connection with the robbery, but no
       weapon or proceeds were recovered.
¶ 13       Sergeant Pagan testified that he was present when Dixon provided a handwritten statement
       to an assistant State’s Attorney. In the statement, which was admitted into evidence, Dixon
       indicated that he was armed with a BB gun and that he waited by the door and acted as a
       lookout while Harris took items such as cigarettes and lottery tickets. The two men then
       switched positions with Harris taking the BB gun and acting as the lookout while Dixon took
       cigarettes and lottery tickets. The BB gun was later thrown into the garbage because it broke
       after being dropped.
¶ 14       After the State rested, the trial court granted the defendant’s motion for a directed verdict
       on all counts, except for count II (armed robbery with a dangerous weapon, i.e., a bludgeon).
¶ 15       Following closing arguments, the trial court found Dixon guilty of armed robbery with a
       dangerous weapon. In making its findings, the court stated:
                   “When you look at the video, there is no mistaking that there is a weapon there, that
               there is a gun. It is quite a large gun, a handgun and it’s clearly visible on the videotape
               ***.
                   ***
                   The other question is whether or not *** I could find or should find that the weapon
               that is admitted in *** Dixon’s statement to be a BB gun.
                   Whether or not that could be a bludgeon and based on its size and what I observed
               on the tape to be metallic in nature and based on the way that it was manipulated in this
               event, it is very clear that it was a bludgeon to be used to strike anyone in the store and
               could have foiled the effort to rob the store and certainly, it was used in a manner to
               threaten the victim in this case ***.
                   ***
                   The images are very clear. And that exist independently of what [the victim] said or
               didn’t say in the course of his testimony. I want to predicate that by saying that in my
               view, [the victim] is correctly and independently and accurately identified the
               defendants here today as to what occurred at the incident.
                   Certainly, it could be argued it’s not completely on point here. I will indicate that
               [the victim’s] testimony was more than sufficient when compared to all the other
               evidence in the case to convict the defendants of armed robbery.
                   It certainly could be argued that the videotape in and of itself would have been
               sufficient had it been appropriately marked and entered into evidence with only an
               indication that this armed robbery had occurred by the victim and had a specific date,
               time and location to convict the defendants.
                   But, as I said, [the victim’s] testimony was excellent and I am going to find them
               guilty of using a–this weapon, the one that I see in the videotape as a bludgeon.”


                                                    -3-
¶ 16       On appeal, Dixon contends that his conviction for armed robbery should be reduced to
       robbery. Specifically, he maintains that the State failed to establish that the weapon used was
       dangerous because the weapon was not introduced into evidence, and because no evidence was
       presented that the weapon was a dangerous weapon that was capable of being used as a
       bludgeon.

¶ 17                                              ANALYSIS
¶ 18                                          Standard of Review
¶ 19       Here, Dixon is challenging the trial court’s findings that the defendant’s gun was a
       dangerous weapon because it was metallic and could be used as a bludgeon. Dixon also
       challenges the trial court’s ultimate determination that he was guilty of armed robbery.
       Whether an object is sufficiently susceptible to use in a manner likely to cause serious injury so
       that it qualifies as a dangerous weapon is generally a question of fact. People v. Ross, 229 Ill.
       2d 255, 275 (2008); People v. Thorne, 352 Ill. App. 3d 1062, 1071 (2004). However, where the
       character of the weapon is such as to admit of only one conclusion, the question becomes one
       of law. People v. Skelton, 83 Ill. 2d 58, 66 (1980).
¶ 20       A trial court’s findings based on testimonial evidence are entitled to great deference, but its
       findings based on nontestimonial evidence (exhibits, such as surveillance videos, admitted into
       evidence) are not entitled to any deference. People v. Radojcic, 2013 IL 114197, ¶ 34; see also
       People v. Shaw, 2015 IL App (1st) 123157, ¶ 26.
¶ 21       Finally, a trial court’s factual findings are not reversed unless they are against the manifest
       weight of the evidence. People v. Absher, 242 Ill. 2d 77, 82 (2011). A trial court’s findings are
       against the manifest weight of the evidence only when an opposite conclusion is apparent or
       when the findings appear to be unreasonable, arbitrary, or not based on the evidence. People v.
       Clark, 2014 IL App (1st) 130222, ¶ 26. When we consider the trial court’s ultimate finding,
       that the defendant was guilty of armed robbery, the standard of review 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.’ ” (Emphasis
       omitted.) People v. Cooper, 194 Ill. 2d 419, 430-31 (2000) (quoting Jackson v. Virginia, 443
       U.S. 307, 318-19 (1979)).

¶ 22                            Elements of the Offense of Armed Robbery
¶ 23       In order to sustain a conviction for armed robbery, the trial court was required to find that
       defendant, in committing a robbery, was armed with a dangerous weapon other than a firearm.
       720 ILCS 5/18-2(a)(1) (West 2012).
¶ 24       Dangerous objects are divided into three categories: “(1) objects that are dangerous per se,
       such as loaded guns; (2) objects that are not necessarily dangerous, but were actually used in a
       dangerous manner during the robbery; and (3) objects that are not necessarily dangerous, but
       may become dangerous when used in a dangerous manner.” People v. Ross, 229 Ill. 2d 255,
       275 (2008); Thorne, 352 Ill. App. 3d at 1070-71.
¶ 25       The three ways for the State to prove that a gun constituted a “dangerous weapon” is by
       presenting evidence that: (1) the gun was operable and loaded; (2) the gun was actually used
       during the offense as a club or bludgeon; or (3) that due to the gun’s size and weight, it was
       capable of being used as a club or bludgeon. Ross, 229 Ill. 2d at 276; Thorne, 352 Ill. App. 3d


                                                    -4-
       at 1072. The parties agree that only the third prong, whether the gun was capable of being used
       as a club or bludgeon, is at issue.

¶ 26                                     Trial Court’s Factual Findings
¶ 27       The threshold question we must answer in this case is how much deference must a
       reviewing court give to the trial court’s findings that the gun was metallic and a bludgeon.
¶ 28       In Radojcic, the supreme court instructed reviewing courts on the amount of deference
       accorded to a trial court’s findings:
                     “Although a trial court’s factual findings are accorded deference on review and will
                only be reversed if they are against the manifest weight of the evidence, that deference
                ‘is grounded in the reality that the circuit court is in a superior position to determine and
                weigh the credibility of the witnesses, observe the witnesses’ demeanor, and resolve
                conflicts in their testimony.’ [Citation.] Here, however, the State offered no live
                testimony, only transcripts from the grand jury proceedings. Thus, the trial court did
                not occupy a position superior to the appellate court or this court in evaluating the
                evidence offered by the State ***.” Radojcic, 2013 IL 114197, ¶ 34.
¶ 29       Here, the victim was not certain that he saw a weapon until he viewed the surveillance
       video, and did not testify about the weapon’s weight or composition (metallic). We note that
       the trial court ignored Dixon’s statement that the weapon was a BB gun that broke when it was
       dropped. Thus, we find, similarly to Radojcic, that the trial court based its findings that the
       weapon was metallic and a bludgeon on the surveillance videotape and not on the victim’s
       testimony. Therefore, given the fact that the trial judge’s findings were not based on witness
       testimony, but on his viewing of the surveillance video, we are not required to be deferential to
       the trial court’s findings (id.) and we can reverse those findings if they are against the manifest
       weight of the evidence. Absher, 242 Ill. 2d at 82.
¶ 30       In resolving the issue of whether the gun in this case was capable of being used as a
       bludgeon, we find Ross instructive. In Ross, the defendant was charged with armed robbery.
       The evidence showed that the defendant used a small BB gun during the robbery. Ross, 229 Ill.
       2d at 276-77. The State failed to present the gun or photographs of the gun at trial and it did not
       present any evidence that it was loaded, that it was used or brandished as a bludgeon, or any
       evidence regarding its weight or composition. Id. at 277. The Ross court thus held that the
       evidence was insufficient to prove that the gun was a dangerous weapon, and that the trial court
       incorrectly based its ruling on the subjective feelings of the victim, rather than the objective
       nature of the gun. Id. The Ross court then affirmed the decision of the appellate court directing
       the trial court to enter a judgment of conviction for simple robbery and sentence the defendant
       accordingly. Id.
¶ 31       The Ross court relied on this court’s decision in Thorne where, similar to Ross, the State
       did not introduce the gun and proved only that the defendant had a small BB gun and that it was
       a hard object. Thorne, 352 Ill. App. 3d at 1073. The Thorne court held that in every case
       finding that an unloaded gun could have been used as a bludgeon, there was evidence
       presented as to the physical characteristics (weight or metallic nature) of the weapon.
       Therefore, because the State failed to present evidence concerning the weapon’s physical
       characteristics, Thorne’s conviction for armed robbery was reduced to simple robbery. Id. at
       1072-74.


                                                     -5-
¶ 32       In this case, as in Ross and Thorne, the State failed to proffer the gun or present evidence
       that the gun was loaded, or that it was used as a bludgeon. While the surveillance videotape
       shows what appears to be a gun, the State presented no evidence regarding its weight or
       composition. Ross, 229 Ill. 2d at 277; Thorne, 352 Ill. App. 3d at 1073. We note that Dixon’s
       unrebutted statement indicates that he carried a BB gun that broke when it was dropped. We
       also note that the victim testified that he saw a “gun,” but (1) he did not delineate the gun’s
       weight or composition, and (2) his testimony was rebutted by Sergeant Pagan, who testified
       that the victim only confirmed that the offenders were carrying a gun after viewing the
       surveillance video.
¶ 33       In light of the preceding, we find that the State presented no gun and no evidence that the
       weapon was a heavy, metal object from which it could be inferred that it was capable of being
       used as a bludgeon.
¶ 34       Although the trial court found that the gun was metallic and could have been used as a
       bludgeon, we find the court’s findings were not based on witness testimony about the gun’s
       physical characteristics, its weight or its composition. Instead, the trial court’s findings were
       based on nontestimonial evidence, the surveillance video. After viewing the surveillance
       video, this court is unable to determine the gun’s physical characteristics. Accordingly, we
       hold that the trial court’s findings were against the manifest weight of the evidence because the
       findings were not based on the evidence, where there was no testimonial evidence that the
       weapon had the weight or composition (metallic) of a dangerous weapon (Clark, 2014 IL App
       (1st) 130222, ¶ 26), and the weapon’s physical characteristics could not be determined from
       the nontestimonial evidence, the surveillance video.

¶ 35                                  Trial Court’s Ultimate Finding
¶ 36       Therefore, we find, following Ross, that the trial court erroneously based its ultimate
       finding–the armed robbery conviction of Dixon–on the subjective feelings of the victim, who
       believed he saw a gun (Skelton, 83 Ill. 2d at 63 (complainants’ subjective beliefs are
       insufficient to establish that an object is a dangerous weapon)), rather than the testimonial
       evidence in the record. Ross, 229 Ill. 2d at 277. Finally, we note that the trial court failed to
       consider all of the evidence when it ignored Dixon’s unrebutted statement, proffered by the
       State, that the weapon was a BB gun that broke when it was dropped.
¶ 37       Accordingly, considering all the evidence in the light most favorable to the State: (1) the
       conflicting evidence as to whether the victim saw the offenders with a gun in the store or only
       saw the offenders with a gun after viewing the surveillance video, (2) the evidence that the gun
       was a BB gun that broke when it was dropped, and (3) the fact that there is no evidence in the
       record as to the gun’s weight or composition, or that the gun was loaded or used as a bludgeon,
       we cannot come to the conclusion, beyond a reasonable doubt, that the gun in this case was a
       dangerous weapon that could be used as a bludgeon. Therefore, Dixon’s conviction for armed
       robbery is reversed and the cause remanded for the trial court to enter a judgment for robbery.
¶ 38       In light of the foregoing, we hereby reverse the judgment of conviction for armed robbery
       and remand the cause to the circuit court with directions to enter a judgment of conviction for
       robbery and to impose an appropriate sentence thereon.

¶ 39      Reversed and cause remanded with directions.


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