                                       2017 IL App (1st) 142723


                                                                         FIFTH DIVISION
                                                                         March 31, 2017


No. 1-14-2723


                                                              )   Appeal from the
THE PEOPLE OF THE STATE OF ILLINOIS,                          )   Circuit Court of
                                                              )   Cook County
                Plaintiff-Appellee,                           )
                                                              )
v.                                                            )   No. 11 CR 15295
                                                              )
GILBERT LOZANO,                                               )
                                                              )   Honorable
                Defendant-Appellant.                          )   Angela Munari Petrone,
                                                              )   Judge Presiding.


       JUSTICE REYES delivered the judgment of the court, with opinion.
       Justice Lampkin concurred in the judgment and opinion.
       Presiding Justice Gordon dissented, with opinion.


                                            OPINION


¶1     Following a jury trial in the circuit court of Cook County, defendant Gilbert Lozano was


convicted of unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1)


(West 2010)) and aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), 


(a)(3)(C) (West 2010)), predicated on defendant not possessing a valid Firearm Owner’s


Identification (FOID) card. Defendant appeals his conviction, asserting the evidence was


insufficient to find him guilty beyond a reasonable doubt where the State failed to present


evidence that established he was a member of a “street gang” as provided by the statutory


definition. According to defendant, section 24-1.8(c) of the Criminal Code of 1961 (Code) (720

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ILCS 5/24-1.8(c) (West 2010)) explicitly provides that, for the purposes of this section, street

gang “has the meaning ascribed to it in Section 10 of the Illinois Streetgang Terrorism Omnibus

Prevention Act.” The Illinois Streetgang Terrorism Omnibus Prevention Act (Act) (740 ILCS

147/10 (West 2010)), in turn, provides that the definition of a street gang means “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.” Defendant maintains that the State failed to present any evidence that the street gang he

was alleged to be a member of “engages in a course or pattern of criminal activity” as defined by

the Act, i.e. “2 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 [Jan.

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.” Id. For the reasons that follow, we agree and reverse defendant’s conviction for unlawful

possession of a firearm by a street gang member.

¶2                                      BACKGROUND

¶3     On September 15, 2011, defendant was charged by information with one count of

unlawful possession of a firearm by a street gang member and six counts of AUUW. The matter

proceeded to a jury trial on count one (unlawful possession of a firearm by a street gang

member) and count three (AUUW predicated on defendant not having a valid FOID card).

¶4     Chicago police officer Victor Rivera (Rivera) testified that, on August 30, 2011, he and

his partner Officer Daniel Lopez (Lopez) were assigned to the area of the 6100 block of South



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Keeler Avenue in the 8th District. As he was patrolling the area in his unmarked police vehicle,

he was flagged down by a concerned citizen. As a result of this conversation, Rivera and Lopez

began touring the nearby area of 61st Street and Karlov Avenue. When they arrived at 8:47 p.m.,

Rivera observed two Latinos and one Latina walking northbound on Karlov Avenue from 62nd

Street. Rivera identified defendant in court as one of the Hispanic men he observed. Rivera

recognized defendant, as he was an individual he had spoken to “several times in the past.” But,

as Rivera exited the vehicle, defendant immediately fled north on Karlov Avenue and then

proceeded west on 61st Street. Rivera gave chase on foot.

¶5     Rivera and Lopez testified that, as defendant ran, he was holding the right side of his

pants. Defendant proceeded to flee into a residential alley west of Karlov Avenue. According to

Rivera, defendant began to slow down “[a]nd with his right hand that was holding the right side

of his waistband, he reached in and tossed with his right hand a black firearm over to the right

area of where we were running.” Rivera observed defendant throw the firearm over a fence and

into a yard, but did not observe the weapon land on the ground. Lopez testified that, from his

vehicle, he observed defendant make a throwing motion with his right arm, but did not observe

anything leave defendant’s hand. According to Rivera, after defendant threw the weapon “[h]e

slowed down and pretty much gave up, laid on the ground.” Rivera then placed defendant in

custody.

¶6     Shortly thereafter, Lopez arrived at the scene in his police vehicle. Rivera informed him

where the firearm was located. The owner of the property where the weapon appeared to have

landed provided Lopez access to the yard so he could retrieve the handgun. Lopez retrieved a

black handgun, which he testified was in plain view laying in the grass. Lopez returned to Rivera

with the firearm, which Rivera recognized as the same one he observed defendant throw away.



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The firearm was loaded with one 9 mm bullet in the chamber and five live rounds in the

magazine.

¶7     Lopez and Rivera drove defendant to the police station, where he was provided with the

Miranda warnings. After waiving his rights, defendant informed Rivera and Lopez that he had

the weapon due to the fact that, “The Latin Kings shot at him a few days prior so he needed a

gun for protection.” Rivera asked defendant if he was still a Two-Six member, and defendant

replied, “yes” and indicated he had been a member for “several years.” Defendant informed

Rivera and Lopez that he was a member of the “63rd and Hamlin” faction of Two-Six.

¶8     Rivera testified that during the booking process, he observed a tattoo on defendant’s right

middle finger that consisted of three dots. Rivera testified that he had observed similar tattoos

before and that they were worn by Two-Six gang members “to respect their gang.” A photograph

of defendant’s tattoo as it appeared on August 30, 2011, was admitted into evidence. Another

photograph of defendant making a gang symbol, which Lopez testified represented Two-Six, was

also admitted into evidence. According to Rivera, defendant made this signal “on his own,” but

Rivera was not present when the photograph was taken.

¶9     Officer James Vins (Vins) of the Chicago Police Department, currently assigned to the

Bureau of Organized Crime Gang Investigations Division, testified as an expert in street gangs

with an emphasis in Latino street gangs—including the Satin Disciples, the Two-Six, and the

Latin Kings—without objection.

¶ 10   Vins testified that Two-Six is divided into geographic factions, which includes a faction

known as “63rd and Hamlin” (referring to the area of 63rd Street and South Hamlin Avenue) in

the Chicago Police Department’s 8th District. According to Vins, Two-Six has a well-structured

hierarchy that is “almost like a corporation.” There is a nation chief, treasurer, enforcer, counsel,



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and a board of high ranking members. Underneath them are five regions, each with its own

regional chief, enforcer, and treasurer. Below the regions are the chapters which also consist of a

chief, a number two chief, an enforcer, and a treasurer.

¶ 11    According to Vins, the main rivals of Two-Six are the Latin Kings, and the conflict

between them “goes back to the mid 70s starting out in the Little Village area.” Vins testified

that Two-Six uses violence to control their territory, including “murder, shootings, intimidation,

arson, anything they could possibly think of to attack rival gang members.”

¶ 12    Vins further testified regarding how members of Two-Six identify themselves. Tattoos

specific to Two-Six include the “three dots” and the “bunny head,” which are typically located

on the right side of the body. The Two-Six “gang sign” is “the bunny,” which involves, in part,

having one’s middle finger extended outwards. The colors of Two-Six are beige and black.

¶ 13    In reviewing the reports and photographs associated with this incident, Vins observed

that defendant had a “three dots” tattoo on his right middle finger and that defendant was

“throwing up a 26 sign for his booking photo.” Vins further noted that defendant was arrested in

Two-Six territory, which was within a few blocks of Latin Kings territory. Vins opined that

when defendant was arrested on August 30, 2011, defendant was a member of the Two-Six street

gang.

¶ 14    On cross-examination, Vins testified that he relied on defendant’s statements to the police

on the day of his arrest as well as the computer database (the Chicago Police Department data

warehouse system) for his opinion that defendant was a member of Two-Six. Vins further

testified that he could only provide the name of one Two-Six member due to the fact the

organization was being restructured. Vins also could not provide an exact number of members in

the “63rd and Hamlin” faction of Two-Six.



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¶ 15    Without objection, the State admitted into evidence a certified document from Master

Sergeant Anthony McClure of the Firearms Services Bureau of the Illinois State Police, which

stated defendant had never been issued a FOID card as of June 15, 2012. The State then rested.

¶ 16    Defendant testified as follows. At the age of 15, he commenced being a Two-Six

member, which he testified involved going to batting cages, playing basketball, bowling, and

frequenting McDonalds with friends. On August 30, 2011, he was not a gang member as three

weeks prior he voluntarily had quit associating with Two-Six because he had heard about

“ongoing violence” and “wanted to get out *** as quickly as possible.”

¶ 17    On the evening of August 30, 2011, he was walking northbound on Karlov Avenue

towards 59th Street when he observed Lopez exit a police vehicle. Defendant testified he was

scared by Lopez and ran into the alley. Defendant continued running until he was instructed to

stop or else he would be “tased.” According to defendant, Lopez was being aggressive with him,

kneed him in the groin, and then placed him in the back of a police vehicle while Lopez and

Rivera searched garbage cans and yards. Ten to fifteen minutes later, the officers returned with a

weapon. According to defendant, the officers attempted to get him to “give up” one of his

friends, but after he refused to provide them with any names, they drove him to the 8th District

police station.

¶ 18    Defendant was placed in a room alone and hours later was retrieved for booking.

According to defendant, Lopez was present during the booking and ordered him to hold his

fingers as they appeared in the photograph. Defendant denied informing the officers that he was

a member of Two-Six and that he possessed the firearm because he was fearful of retaliation

from the Latin Kings.

¶ 19    Defendant further testified that an older member of Two-Six tattooed him with the “three



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dots” tattoo when he was younger, that he did not know what the tattoo meant at the time, and

that he merely believed it to be “cool.”

¶ 20   On cross-examination, defendant testified that, while he had been a Two-Six member for

five years, he thought of it as a “club.” He typically “hung out” with three to five people who

also had the “three dot” tattoo.

¶ 21   The State presented the testimony of Lopez in rebuttal. According to Lopez, he was not

present when defendant’s booking photographs were taken. He also denied leaving defendant

alone in the police vehicle for 15 minutes and looking through garbage cans. He further denied

being aggressive towards defendant or threatening to “tase” him.

¶ 22   Outside the presence of the jury, the trial court then conducted a jury instruction

conference. During that conference, defense counsel did not propose, nor did the State or trial

court suggest, that Illinois Pattern Jury Instructions 4.20 (defining “streetgang or gang”) or 4.21

(defining “streetgang member or gang member”) be provided to the jury. Illinois Pattern Jury

Instructions, Criminal, Nos. 4.20, 4.21 (4th ed. 2000).

¶ 23   After hearing closing arguments and being instructed, the jury deliberated and ultimately

found defendant guilty of unlawful possession of a firearm by a street gang member and AUUW,

premised on defendant’s lack of a valid FOID card. Thereafter, defendant filed a posttrial motion

contesting the sufficiency of the evidence and the constitutionality of the unlawful possession of

a firearm by a street gang member statute, which the trial court denied. Defendant was then

sentenced to the statutory minimum sentence of three years’ imprisonment on both counts. This

appeal followed.



¶ 24                                       ANALYSIS



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¶ 25   On appeal, defendant argues (1) that the evidence was insufficient to find him guilty of

unlawful possession of a firearm by a street gang member beyond a reasonable doubt, where the

State did not establish that Two-Six was a “street gang” as defined by the Act; (2) that the

unlawful possession of a firearm by a street gang member statute is unconstitutional; (3) that trial

counsel was ineffective for failing to request certain Illinois pattern jury instructions regarding

pertinent statutory definitions or, in the alternative, that the trial court should have sua sponte

provided those instructions; and (4) that his conviction for AUUW must be vacated under the

one-act, one-crime doctrine. For the following reasons, we find defendant’s first issue dispositive

and, thus, decline to consider his remaining arguments.

¶ 26                               Sufficiency of the Evidence

¶ 27   Defendant maintains that while he was a member of Two-Six, the State failed to establish

beyond a reasonable doubt that Two-Six is a “streetgang” as defined by the Act. Specifically,

defendant asserts that no evidence was presented at trial which established that Two-Six was

involved in a “course or pattern of criminal activity” as required by section 10 of the Act.

Defendant requests that this court reverse his conviction for unlawful possession of a firearm by

a street gang member, where the State has failed to satisfy its burden as to the elements of this

charged offense.

¶ 28   On appeal, when the defendant challenges the sufficiency of the evidence, the reviewing

court must determine, after viewing the evidence in the light most favorable to the State, 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). “This means the reviewing

court must allow all reasonable inferences from the record in favor of the prosecution.” People v.

Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be reversed “unless the



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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).

¶ 29   It is within 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. It is not the duty of the trier of fact to accept any possible explanation that favors

the defendant's innocence and “elevate it to the status of reasonable doubt.” People v. Siguenza-

Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will not substitute its judgment for that of

the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 (2006).

¶ 30   The State has an obligation to prove every essential element of the crime beyond a

reasonable doubt. People v. Maggette, 195 Ill. 2d 336, 353 (2001). To prove a defendant guilty

of unlawful possession of a firearm by a street gang member, the State must prove that the

defendant 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

               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 2010).

¶ 31   The statute further provides:

                   “(c) For purposes of this Section:

                           ‘Street gang’ or ‘gang’ has the meaning ascribed to it in Section 10 of

                       the Illinois Streetgang Terrorism Omnibus Prevention Act.

                           ‘Street gang member’ or ‘gang member’ has the meaning ascribed to it

                       in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention



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                       Act.” 720 ILCS 5/24-1.8(c) (West 2010).

¶ 32   The Act sets forth the pertinent definitions as follows:

                   “ ‘Streetgang’ or ‘gang’ or ‘organized gang’ or ‘criminal street gang’ means

               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 2010).

The Act further provides that:

                   “ ‘Course or pattern of criminal activity’ means 2 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;

                       (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 ***.” Id.

¶ 33   There is only one decision in Illinois that has considered whether the State met its burden

of proof with regards to establishing that a particular street gang was a “street gang” as defined

by the Act, People v. Jamesson, 329 Ill. App. 3d 446 (2002). Defendant maintains, however, that

Jamesson (1) was wrongly decided because the evidence in that case did not establish that the

Latin Counts had committed two or more gang-related offenses within five years of each other

after January 1, 1993, and (2) even if it is good law, that Jamesson is distinguishable.



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¶ 34   In Jamesson, the defendant was charged with unlawful contact with a street gang member

(720 ILCS 5/25-1.1 (West 1998)). Jamesson, 329 Ill. App. 3d at 449. During the bench trial, the

State presented the testimony of Russell Schecht (Schecht), a patrolman with the Addison police

department assigned to the gang tactical unit, and the trial court accepted him as an expert. Id. at

449-50. Schecht testified regarding his familiarity with the structured gangs in Addison, which

included the Latin Kings and Latin Counts. Id. According to Schecht, Latin Counts gang

members “from the Cicero area came to Addison and began heavily recruiting members several

years ago.” Id. at 450. With respect to the Latin Counts, Schecht testified regarding the

organization’s hierarchy and described them as “a violent street gang in Cicero and, in Addison,

they have been in numerous violent incidents involving narcotics, batteries, aggravated batteries,

assaults, and numerous other criminal activities.” Id. Schecht further testified that the Latin

Counts are identified by the colors red and black and that they “display their colors and

‘represent’ to the left side of the body. For example, they may wear their hats tilted to the left

side or wear bandannas on their heads with the knot turned to the left.” Id.

¶ 35   Regarding the defendant, Schecht testified that he was familiar with the defendant and

had numerous prior contacts with him. Id. Schecht further testified that defendant admitted to

him and other officers “on a number of occasions that he is a Latin Counts gang member.” Id.

¶ 36   As to the offense in question, Schecht testified that while he was on routine patrol, he

observed two known gang members, George Soria (Soria) and Sam Banuelos (Banuelos),

standing between two apartment buildings with the defendant. The defendant “was wearing a red

jacket, a red Cincinnati Reds hat tilted to the left, and a red bandanna on the left side of his pants

or belt loop.” Id. Schecht testified that Banuelos had admitted to him that he was a gang member.

Id.



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¶ 37   Schecht further testified regarding “gang contact cards, which are used to keep a record

of contacts between officers and gang members.” Id. at 451. One of the cards indicated that an

officer had contact with Banuelos and the defendant in August 1999 and that the contact resulted

in both the defendant and Banuelos being charged with possession of cannabis. Id. Other cards

indicated defendant was present with either Banuelos or Soria and was issued loitering tickets.

Id.

¶ 38   Schecht opined that “based on previous contacts with Banuelos and his associates,

previous records, and the area where Banuelos was observed, Banuelos was a Latin Counts gang

member” on the day the defendant was observed with him as was Soria. Id. Schecht further

testified regarding his conversation with the defendant on the date of the offense and that the

defendant “admitted to Schecht that he knew he had a no-gang-contact order and was not

supposed to be with Soria or Banuelos.” Id. The trial court ultimately found defendant guilty of

committing the offense of unlawful contact with a street gang member. Id.

¶ 39   On appeal, the defendant challenged the sufficiency of the State’s evidence, namely that

the State failed to prove that the Latin Counts was a street gang as defined in the Act (740 ILCS

147/10 (West 1998)). Jamesson, 329 Ill. App. 3d at 458. The Second District, however,

concluded that a rational trier of fact could have determined beyond a reasonable doubt that the

defendant was guilty of that offense and that the evidence supported the trial court’s guilty

verdict. Id. at 461. In so finding, the reviewing court noted the following evidence:

                    “At trial, the State presented evidence establishing that on September 24,

               1999, two days after the trial court sentenced defendant to supervision with the

               condition that he have no contact with Banuelos or any other known gang

               members, Officer Schecht saw defendant in the presence of Banuelos and Soria,



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             another known gang member. Banuelos and Soria had previously admitted to

             Schecht that they were Latin Counts gang members. Defendant purportedly

             admitted to Schecht his awareness of the no-gang-contact order and his

             knowledge that he was not supposed to be with Banuelos and Soria. Schecht

             testified as an expert witness on gangs and as an occurrence witness. Schecht

             described the location of the incident, Michael Lane, as an area where ‘literally

             hundreds of gang contacts’ occurred. Schecht described their clothing, the

             significance of the colors, and the manner in which they were attired.

                Schecht further testified regarding his duties, which included collecting and

             trading information and educating others about gangs. As an expert witness,

             Schecht testified regarding his familiarity with the structured street gangs in

             Addison and, specifically, the Latin Counts. Schecht testified regarding his

             knowledge of the hierarchy and structure of the Latin Counts, which include a

             president and a type of treasurer. He was aware that ledgers existed and showed

             whether dues were paid. He testified that the Latin Counts are a People gang

             under the People nation and the Addison police department began to have contact

             with them a couple of years ago. He explained the recruitment efforts of the Latin

             Counts. Schecht described the Latin Counts as a violent street gang in Cicero and,

             in Addison, they had been involved in numerous violent incidents. Their

             involvement includes narcotics, batteries, aggravated batteries, assaults, and

             numerous other criminal activities. Schecht opined that the Latin Counts

             organization was a street gang and that Banuelos and Soria were Latin Counts

             gang members.” Id. at 459-60.



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¶ 40   Relying on Richardson v. Chapman, 175 Ill. 2d 98, 107 (1997), and People v. Terrell,

185 Ill. 2d 467, 496-97 (1998)), the Jamesson court observed that, “Although Schecht did not

testify as to specific dates or specific incidents, the trial court was free to accept or reject

Schecht’s opinions that the Latin Counts were a street gang that engaged in a course or pattern of

criminal activity.” Jamesson, 329 Ill. App. 3d at 460. The court further noted that, “Schecht

testified that the police department began to have contact with the Latin Counts ‘a couple of

years ago’ and that the Latin Counts have been involved in numerous violent incidents.” Id. at

460-61. Thus, the Jamesson court concluded that because the testimony established that the Latin

Counts began their criminal activity in Addison “a couple of years ago” and that one of those

offenses involved aggravated battery, a felony, the trial court “properly could have found that the

offenses occurred within five years of each other,” thus satisfying the element that the Latin

Counts was engaged “in a course or pattern of criminal activity.” Id. at 461 (citing 740 ILCS

147/10 (West 2000)).

¶ 41   We cannot say that Jamesson was wrongly decided as the reviewing court had before it

the complete record and considered the sufficiency of the evidence on the unique facts of that

specific case. We do, however, find Jamesson to be distinguishable on its facts from the case at

bar. The statutory definition of the phrase “course or pattern of criminal activity” requires the

State to establish that there have been “2 or more gang-related criminal offenses committed in

whole or in part within this State” (1) after January 1, 1993; (2) where both offenses were

committed within 5 years of each other; and (3) at least one of those offenses “involved the

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

defined as a felony or forcible felony.” 740 ILCS 147/10 (West 2010). The Jamesson court relied

on the testimony of a gang expert, which established that as of the time of trial (defendant was



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charged in September 1999), his contact with the Latin Counts in Addison occurred “a couple of

years ago” and that the Latin Counts had engaged in “numerous violent incidents,” including

felonies. Jamesson, 329 Ill. App. 3d at 460. Unlike in Jamesson, Vins did not testify that his

contact with Two-Six began “a couple of years ago.” Instead, Vins testified that Two-Six and the

Latin Kings had been rivals in the 8th District dating back to the 1970s and that Two-Six used

violence, including “murder, shootings, intimidation, [and] arson” to control its territory.

¶ 42   Thus, what remains at issue in this case is whether the evidence established that Two-Six

was involved in “a course or pattern of criminal activity” so as to fall within the definition of

“street gang” under the Act. Vins testified that since the 1970s, Two-Six had been engaged in a

rivalry with the Latin Kings over territory within the 8th District. Although Vins testified that

Two-Six used violence to control their territory including “murder, shootings, intimidation, [and]

arson,” no testimony was elicited regarding the time frame of these crimes, except to say

generally that they had been occurring since the 1970s. The Act requires that at least one of the

two required offenses be committed after the effective date of the Act, i.e. January 1, 1993. 740

ILCS 147/10 (West 2010). The testimony at trial failed to demonstrate that a gang-related

criminal offense was committed by or through a member of Two-Six after January 1, 1993. Nor

was any evidence presented to establish that two such offenses had been committed within five

years of each other. See id. Accordingly, the State failed to prove an element of the offense of

unlawful possession of a firearm by a street gang member beyond a reasonable doubt.

¶ 43   We further observe that, like the gang expert in Jamesson, Vins provided his expert

opinion to the jury on an ultimate issue in the case, whether defendant was a member of a street

gang. In relying on the expert’s opinion, the Jamesson court set forth the rule that an expert may

provide an opinion on an ultimate issue in the case “because the trier of fact is not required to



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accept the witness’s conclusion, the testimony cannot be said to usurp the province of the trier of

fact.” Jameson, 329 Ill. App. 3d at 460 (citing Terrell, 185 Ill. 2d at 496-97). We initially note

that Jamesson involved a bench trial, whereas defendant here was convicted by a jury.

Importantly, in a bench trial, the judge is presumed to know the law that applies. People v.

McCoy, 207 Ill. 2d 352, 357 (2003). In contrast, a jury must be properly instructed on the law.

See People v. Delgado, 376 Ill. App. 3d 307, 314 (2007) (“in a criminal case the trial court is

responsible for fully instructing the jury on the elements of the offense, the burden of proof and

the presumption of innocence”). In this instance, the jury cannot consider Vins’s opinion that

defendant belongs to a “street gang” in accordance with its plain and ordinary meaning, as the

legislature has provided a specific definition for that term. See People v. Ramsey, 239 Ill. 2d 342,

435 (2010). Thus, where, as here, the jury was not provided with the statutory definitions of

“street gang” and “course or pattern of criminal activity,” we cannot say that the trier of fact

could properly consider Vins’s opinion in light of the applicable law.

¶ 44   Reviewing the evidence in the light most favorable to the prosecution, we find the State

failed to establish a basic element of the offense: that Two-Six was a street gang that engaged in

a course or pattern of criminal activity. See 720 ILCS 5/24-1.8 (West 2010); 740 ILCS 147/10

(West 2010). Accordingly, we conclude the State failed to prove defendant guilty beyond a

reasonable doubt of unlawful possession of a firearm by a street gang member and reverse his

conviction.

¶ 45   As we have concluded that defendant’s conviction for unlawful possession of a firearm

by a street gang member must be reversed, we need not consider defendant’s remaining

arguments regarding the constitutionality of section 24-1.8 of the Code (720 ILCS 5/24-1.8

(West 2010)) or trial counsel’s failure to request certain jury instructions. See People v. White,



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2011 IL 109689, ¶ 148 (“it is a fundamental rule of judicial restraint that a court not reach

constitutional questions in advance of the necessity of deciding them” (emphasis omitted));

People v. Williams, 383 Ill. App. 3d 596, 644 (2008) (declining to consider the defendant’s

alternative arguments where the reviewing court reversed the defendant’s conviction due to

unsatisfactory evidence). We observe that, although defendant’s conviction for unlawful

possession of a firearm by a street gang member is reversed, the jury also convicted him of

aggravated unlawful use of a weapon predicated on defendant not having been issued a currently

valid FOID card (720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2010)) and the trial court sentenced

defendant to three years’ imprisonment on this count. It is not disputed that there was sufficient

evidence to convict defendant of the offense of AUUW, and our review of the record supports

the jury’s determination. Accordingly, defendant’s AUUW conviction is affirmed. See People v.

Davis, 2016 IL App (1st) 142414, ¶ 18.

¶ 46                                     CONCLUSION

¶ 47   For the reasons stated, defendant’s conviction for unlawful possession of a firearm by a

street gang member is reversed; however, defendant’s conviction for AUUW is affirmed.

¶ 48   Affirmed in part; reversed in part.

¶ 49   PRESIDING JUSTICE GORDON, dissenting.

¶ 50   In this appeal, the majority reversed defendant's conviction for unlawful possession of a

firearm by a street gang member, on the ground that the State had failed to prove that the Two-

Six gang was a street gang engaged in a course or pattern of criminal activity. Supra ¶ 44. For

the reasons explained below, I must respectfully dissent.

¶ 51   On this appeal, defendant argued that the State failed to prove that the Two-Six gang met

the statutory definition of a street gang for two separate reasons. Defendant argued that the State



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failed to prove: (1) that the Two-Six gang constituted a confederation of three or more people;

and (2) that the Two-Six gang had committed the requisite number of offenses within the

requisite time frame, specified by the statute.

¶ 52   First, defendant argues that the State failed to prove that the Two-Six gang constituted a

confederation of three or more people, because the State's expert could identify only one person

who was a member of the Two-Six gang. However, as the majority observes in its opinion, the

State's expert testified that the Two-Six gang has a well-structured hierarchy which is "almost

like a corporation," with (1) a nation chief; (2) a treasurer; (3) an enforcer; (4) counsel, and (5) a

board of high ranking members. Supra ¶ 10. That is already more than three people. In addition,

he testified that underneath them are five regions, each with its own (1) regional chief, (2)

enforcer, and (3) treasurer. Supra ¶ 10. The total of just the regional leaders brings the total to 15,

which is far more than the three persons required by statute. Thus, I do not find this argument

persuasive.

¶ 53   Next, defendant argues that the State failed to prove the requisite number of offenses,

namely: (1) two or more gang-related offenses in Illinois since January 1, 1993; (2) two or more

offenses occurring within five years of each other; and (3) at least one felony.

¶ 54   The State could have done a simple online search and printed out all the opinions and

orders showing convictions involving Two-Six gang members, and then asked the trial court to

take judicial notice–but it did not do that. E.g., People v. Gallegos, 2016 IL App (1st) 133568-U,

¶ 18; People v. Anima, 2016 IL App (1st) 140504-U, ¶ 5. See also People v. Molina, 2016 IL

App (1st) 131945-U, ¶ 6 (an officer testified about " 'a major gang conflict' happening in the area

at the time [(2011)] between the Latin Kings and the Two-Six gang"). People v. Salas, 2011 IL

App (1st) 091880, ¶ 37 ("Defendant was a member of the Two-Six street gang"); People v.



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Salgado, 396 Ill. App. 3d 856, 859 ("Two-Six street gang"). The State has the burden of proving

each element of the offense to the jury beyond a reasonable doubt, and the State has not argued

to the trial court or on this appeal that we should take judicial notice of prior Two-Six gang

convictions. Thus, one of the questions before us on this appeal is whether any rational trier of

fact could have found this element beyond a reasonable doubt, based on the evidence that was

actually presented to it.

¶ 55    The record contains sufficient evidence to support this element. Officer James Vins, the

State's gang expert, described the current state of the Two-Six gang in detail–its current

hierarchy, its current boundaries, and its current gang signs. Vins further testified that the Two-

Six gang used "murder, shootings, intimidation, arson, anything they could possibly think of to

attack rival gang members." Defendant argues that Vins' description of these offenses could have

been a historical reference, since the Two-Six gang and the Latin Kings have been rivals since

the 1970's, which is before the effective date of the Act. However, whether this was a current or

historical reference by Vins was a question of fact for the jury to determine, and the jurors were

free to conclude, as they apparently did, that Vins was speaking of the present when he testified

that the Two-Six gang's violence included "murder, shootings, intimidation, arson," and other

attacks.

¶ 56    Thus, I do not find defendant's arguments persuasive on this issue.

¶ 57    I think this issue is akin to forensic testing, in the sense that once it is established that a

particular forensic test is generally accepted in the relevant scientific community, as those terms

are defined by rules and case law, there is no need to relitigate that fact, unless something has

changed. Similarly, there is no need for the State to relitigate whether a particular gang is a street

gang in the relevant community, as those terms are defined by statute and case law, unless



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something has changed and defendant has placed this fact at issue.

¶ 58   There is no question that the State has the burden of proving each element of an offense

to the jury beyond a reasonable doubt, and whether defendant was a member of a street gang is

an element of the offense. However, the defense failed to ask the trial court to give the statutory

definition of this term to the jury, thereby making the strategic decision to waive jury

consideration of whether this definition was met. There are relevant pattern jury instructions

explaining both "streetgang" and "streetgang member" (Illinois Pattern Jury Instructions,

Criminal, Nos. 4.20, 4.21 (4th ed. 2000)), but defense counsel made the strategic decision not to

request either one.

¶ 59   In fact, defense counsel repeatedly referred–himself–to the Two-Six gang as a street gang

throughout the trial; and he never argued in his closing that the Two-Six gang was not a street

gang or that the State had failed to prove this fact. The defense's strategy was to argue that

defendant was not a member of this gang on the date of the offense.

¶ 60   Thus, the issue before us concerns a situation where the defense has made the apparently

strategic decision at trial not to seek a jury determination of a particular fact and appears to have,

in essence, conceded that fact at trial. In sum, the question before us is whether we should

reverse on the issue of whether a particular gang is a street gang as that term is statutorily

defined, when the fact is supported by case law, the State's evidence at trial and defendant's own

tacit concession?

¶ 61   I would answer no and, therefore, I must respectfully dissent.




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