                              ILLINOIS OFFICIAL REPORTS
                                            Appellate Court




                           People v. Lipscomb-Bey, 2012 IL App (2d) 110187




Appellate Court               THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                       JOHN K. LIPSCOMB-BEY, Defendant-Appellant.



District & No.                Second District
                              Docket No. 2-11-0187


Filed                         December 28, 2012


Held                          Although the evidence showed defendant did show up at a designated
(Note: This syllabus          location to negotiate the sale of a firearm, there was insufficient evidence
constitutes no part of        to establish beyond a reasonable doubt that defendant took a substantial
the opinion of the court      step toward committing the offense of being an armed habitual criminal,
but has been prepared         especially when defendant did not have a firearm, and therefore his
by the Reporter of            conviction for that offense was reversed.
Decisions for the
convenience of the
reader.)


Decision Under                Appeal from the Circuit Court of Du Page County, No. 10-CF-896; the
Review                        Hon. John J. Kinsella, Judge, presiding.



Judgment                      Affirmed in part and reversed in part.
Counsel on                 Thomas A. Lilien and Steven E. Wiltgen, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.



                           Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman,
                           Assistant State’s Attorney, and Lawrence M. Bauer and Joan M. Kripke,
                           both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for
                           the People.


Panel                      PRESIDING JUSTICE BURKE delivered the judgment of the court, with
                           opinion.
                           Justices Jorgensen and Schostok concurred in the judgment and opinion.



                                            OPINION

¶1          Following a jury trial, defendant, John K. Lipscomb-Bey, was convicted of two counts
        of being an attempted armed habitual criminal (720 ILCS 5/8-4(a), 24-1.7(a) (West 2010))
        and one count of possession of a controlled substance (720 ILCS 570/402(c) (West 2010)).
        He was sentenced to concurrent terms of 20 years’ imprisonment for the attempt convictions,
        to be served consecutively with a 6-year term for the drug conviction. On appeal, defendant
        argues that: (1) the evidence was insufficient to show a substantial step for the attempt
        crimes; (2) the speedy-trial term had run on the attempt charges, because they were subject
        to compulsory joinder; and (3) one of the attempt convictions must be vacated under the one-
        act, one-crime doctrine. We agree with defendant’s first argument and therefore reverse his
        convictions of being an attempted armed habitual criminal.

¶2                                      I. BACKGROUND
¶3          On April 29, 2010, defendant was charged by superseding indictment with three counts
        stemming from an incident on April 15, 2010. Count I alleged unlawful possession of
        ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2010)), in that defendant, a felon,
        knowingly possessed a .32-caliber bullet. Count II charged defendant with unlawful
        possession of less than 15 grams of a substance containing cocaine. Count III alleged
        unlawful possession of ammunition by a forcible felon (720 ILCS 5/24-1.1(a) (West 2010)),
        in that defendant had previously been convicted of the forcible felony of attempted murder
        and knowingly possessed a .32-caliber bullet.
¶4          A few months later, on August 17, 2010, defendant was charged with two counts of being
        an attempted armed habitual criminal. Count IV alleged that defendant, with the intent to
        commit the offense of being an armed habitual criminal, performed a substantial step toward


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     the commission of that offense, in that he agreed to sell a firearm and drove to a
     predetermined location with the intent to sell a firearm, after having previously been
     convicted of the forcible felony of armed robbery and having been convicted of the Class 1
     felony of manufacture or delivery of a controlled substance. Count V was identical except
     that it alleged two prior convictions of the forcible felony of attempted murder.
¶5       Defendant’s trial began on November 9, 2010. Agent Daniel Alaimo of the Du Page
     Metropolitan Enforcement Group (DuMEG) provided the following testimony. In April
     2010, DuMEG learned from Internet postings about prostitution occurring at the Extended
     Stay Hotel in Downers Grove. Posing as a customer, a DuMEG agent contacted a woman
     from a posting, who called herself “Avery,” and arranged a meeting with her at the hotel on
     April 14, 2010. When DuMEG agents arrived at the hotel room, they placed the woman,
     Alyshia Dorton, under arrest for prostitution. Dorton agreed to cooperate and provide
     information in exchange for not being charged with prostitution. Dorton told Alaimo that she
     could arrange to have someone sell her a handgun.
¶6       The following day, at about 1 p.m., Alaimo met with Dorton in his car in the hotel’s
     parking lot. Dorton said that she had contacted an associate who gave her the phone number
     of a man named “John” who could supply her with a handgun. Alaimo consulted with other
     DuMEG agents and then met with Dorton again at about 3 p.m. He asked Dorton to call
     “John” through speakerphone, and Alaimo listened in. Dorton called and asked if the person
     who answered was “John,” and the man answered in the affirmative. The man did not
     mention his last name. Dorton said that she needed a handgun to protect her from some
     individuals. The man said that he would provide her with a gun but that he would not be
     available until after 6 p.m. Dorton asked how much it would cost, and “John” said that he
     did not want to talk about it on the phone but would discuss the price when he arrived.
     “John” did not describe the gun. Dorton told him that she was at the Extended Stay Hotel.
¶7       Around 8 p.m., Alaimo met with Dorton again in the hotel’s parking lot, this time in a
     minivan. Six armed agents were in another van at the hotel’s back door. Agents were also
     in a truck at the hotel’s entrance for surveillance. At Alaimo’s request, Dorton called “John”
     through speakerphone and asked where he was. The man said that he had just left Chicago’s
     west side and was on his way. He asked Dorton for directions to the hotel, which she
     provided. Dorton asked if he had a handgun for her, and he said that he did. She asked about
     the price, but “John” still did not want to discuss it over the phone. He advised Dorton that
     he would be driving a white Cadillac and would be there in about one hour. Dorton told him
     to come to the back of the hotel and she would let him in the back door. For safety reasons,
     DuMEG agents did not plan to have Dorton actually meet with “John” or have him enter the
     hotel.
¶8       At about 9 p.m., a white Cadillac parked by the hotel’s back door. Dorton received a call
     from “John,” who said that he had arrived. Dorton said that she would be down to let him
     in. Alaimo and other agents approached the Cadillac, from which defendant had just exited.
     Alaimo asked defendant what he was doing there, and defendant said that he was going to
     meet a friend named Avery. Alaimo recognized defendant’s voice as that of “John” from the
     phone calls. Alaimo asked how defendant knew Avery, and he said that it was through a
     mutual friend. When asked why he was visiting Avery, defendant said that she was having

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       problems with some people and that he was there to provide her with “some sort of
       protection.” Alaimo asked what defendant meant by “protection,” but he would not elaborate.
¶9          Meanwhile, other agents were using flashlights to look into defendant’s car windows, and
       an agent alerted Alaimo that they found something. Alaimo looked in the car and saw on the
       front passenger’s seat a black digital scale with white powder residue. Based on his training
       and experience, Alaimo believed that it was used for weighing drugs. Defendant volunteered
       that he was not a drug dealer and that the scale was for his personal use. An agent alerted
       Alaimo to something else, and he saw a small bullet on the backseat floorboard. Alaimo
       asked defendant if he had a firearm owner’s identification (FOID) card, and defendant said
       that he did not, because he had a felony conviction. At that point, Alaimo placed defendant
       under arrest.
¶ 10        Alaimo read defendant his Miranda rights, and defendant agreed to speak to him. Alaimo
       asked defendant if he had a gun, and defendant replied in the negative. When asked about
       the bullet, defendant said that he had been arrested years ago for having a .32-caliber
       handgun and that it was probably left over from that. Defendant said that the car was his but
       was registered in his mother’s name and that he was the only driver.
¶ 11        Agents meticulously searched the car but did not find a handgun. They also did not find
       a gun while searching the parking lot area. They took the scale and the bullet into evidence,
       and it was later determined that the bullet was .32-caliber. They further found in the car’s
       center console a piece of paper with the name “Avery” and directions from Chicago to the
       hotel.
¶ 12        The State’s Attorney’s office contacted Alaimo about bringing Dorton in to testify. He
       spoke to her on the phone, and she said that she was in California and did not want to travel
       to Illinois because she could be extradited to Minnesota on an outstanding warrant. Alaimo
       was not able to confirm Dorton’s exact whereabouts.
¶ 13        A forensic chemist testified that she tested the surface of the scale and found the presence
       of cocaine.
¶ 14        The parties stipulated that defendant had been convicted of felonies, including two
       forcible felonies and a violation of the Illinois Controlled Substances Act (720 ILCS 570/100
       et seq. (West 2010)).
¶ 15        Laura Carter, defendant’s mother, testified that she loaned her Cadillac to defendant on
       the day of his arrest. She often loaned her car to her live-in friend Donald Rogers, and he
       drove it frequently in the month before defendant’s arrest. Carter had never seen any scales
       or bullets in her car.
¶ 16        Rogers testified that he drove Carter’s Cadillac almost every day to commute to work.
       A couple of years before, Rogers was doing demolition work at a jobsite, ripping out a wall,
       and found a pillowcase with a scale and two boxes of bullets. He put the pillowcase in the
       trunk and sorted the contents when he got home. He then threw the bullets in the garbage and
       put the scale back in the trunk. Rogers admitted that in 2002 he was convicted of the felony
       of delivery of a controlled substance and that his driver’s license had been revoked since
       1979.
¶ 17        The jury found defendant not guilty of unlawful possession of ammunition by a forcible

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       felon and unlawful possession of ammunition by a felon. It found defendant guilty of
       unlawful possession of a controlled substance and the two counts of being an attempted
       armed habitual criminal.
¶ 18       Defendant filed a motion for a new trial on November 30, 2010, which the trial court
       denied on January 11, 2011. Following sentencing and the denial of defendant’s motion to
       reconsider his sentence, defendant timely appealed.

¶ 19                                        II. ANALYSIS
¶ 20                                A. Sufficiency of the Evidence
¶ 21        On appeal, defendant first argues that he was not proven guilty beyond a reasonable
       doubt of being an attempted armed habitual criminal, because there was insufficient evidence
       to show a substantial step for committing an attempt. We first set forth the applicable
       standard of review. When faced with a challenge to the sufficiency of the evidence, we must
       determine 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Collins, 106 Ill.
       2d 237, 261 (1985). The trier of fact has the responsibility to assess witnesses’ credibility,
       weigh their testimony, resolve inconsistencies and conflicts in the evidence, and draw
       reasonable inferences from the evidence. People v. Sutherland, 223 Ill. 2d 187, 242 (2006).
       We will not set aside a criminal conviction unless the evidence is so improbable or
       unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Siguenza-
       Brito, 235 Ill. 2d 213, 225 (2009).
¶ 22        Although defendant lists this issue as being “[w]hether the evidence was insufficient to
       show a substantial step to commit an attempt” and sets forth the aforementioned standard,
       he also states that where the facts are uncontested, the question of whether conduct amounts
       to a “substantial step” is one of law. The case law on this subject is not uniform. Compare
       People v. Hawkins, 311 Ill. App. 3d 418, 423 (2000) (whether uncontested facts constituted
       a “substantial step” toward commission of sexual assault was reviewed de novo), with People
       v. Norris, 399 Ill. App. 3d 525, 530 (2010) (whether a defendant’s conduct constitutes a
       substantial step toward commission of a crime is an issue as to the sufficiency of the
       evidence, not a question of law, and the Collins standard applies). We believe that Collins
       is the appropriate standard but note that under either standard our result would be the same.
¶ 23        For an attempt crime, the elements are the intent to commit a specific offense (in this
       case, being an armed habitual criminal) and “any act that constitutes a substantial step toward
       the commission of the offense.” 720 ILCS 5/8-4(a) (West 2010). A person commits the
       offense of being an armed habitual criminal if he receives, sells, possesses, or transfers any
       firearm after having been convicted two or more times of any combination of the following:
       (1) a forcible felony; (2) various felonies; or (3) a Class 3 or higher drug offense. 720 ILCS
       5/24-1.7(a) (West 2010). Defendant does not dispute the elements relating to the prior
       convictions or his intent, but rather he argues that the State did not prove that he took a
       “substantial step” toward selling a gun.
¶ 24        What constitutes a substantial step is determined by each case’s unique facts and

                                                -5-
       circumstances. People v. Perkins, 408 Ill. App. 3d 752, 758 (2011). Mere preparation is not
       enough (id.), and the act must not be too far removed in time and space from the conduct that
       constitutes the principal offense (People v. Kirchner, 2012 IL App (2d) 110255, ¶ 18). Still,
       the defendant does not have to complete the last proximate act to actual commission of the
       crime. Perkins, 408 Ill. App. 3d at 758. Rather, the facts are to be placed on a “continuum
       between preparation and perpetration.” People v. Terrell, 99 Ill. 2d 427, 434 (1984). A
       substantial step occurs when the act puts the defendant in a dangerous proximity to success.
       Id.
¶ 25        Illinois courts have looked to the Model Penal Code for guidance in determining whether
       a defendant took a substantial step toward the commission of a crime. See People v. Smith,
       148 Ill. 2d 454, 461 (1992). The Model Penal Code lists conduct that is to be considered
       sufficient as a matter of law to support an attempt conviction, as long as the conduct is
       strongly corroborative of the actor’s criminal purpose:
                 “(a) lying in wait, searching for or following the contemplated victim of the crime;
                 (b) enticing or seeking to entice the contemplated victim of the crime to go to the
            place contemplated for its commission;
                 (c) reconnoitering the place contemplated for the commission of the crime;
                 (d) unlawful entry of a structure, vehicle or enclosure in which it is contemplated that
            the crime will be committed;
                 (e) possession of materials to be employed in the commission of the crime, that are
            specially designed for such unlawful use or that can serve no lawful purpose of the actor
            under the circumstances;
                 (f) possession, collection or fabrication of materials to be employed in the
            commission of the crime, at or near the place contemplated for its commission, if such
            possession, collection or fabrication serves no lawful purpose of the actor under the
            circumstances;
                 (g) soliciting an innocent agent to engage in conduct constituting an element of the
            crime.” Model Penal Code § 5.01(2) (1985).
¶ 26        Defendant argues that, viewed in the light most favorable to the State, the evidence
       shows that two people discussed and planned to meet regarding the purchase of a firearm.
       Defendant argues, however, that there was no actual meeting, no price was even discussed,
       much less agreed upon, and there was no evidence that the firearm ever existed. Defendant
       argues that, under the circumstances, the prosecution did not show that he took a substantial
       step toward selling a firearm and thus committing the offense of being an armed habitual
       criminal.
¶ 27        In support of his argument, defendant cites a series of cases, beginning with Smith, 148
       Ill. 2d 454. There, the defendant took a train from Chicago to Highland Park and then took
       a cab to Waukegan. The defendant told the driver that he was looking for a jewelry store on
       Genesee Street. Id. at 456. The driver pointed out one store to the defendant, but the
       defendant replied that it was a “ ‘Mexican’ ” store and not the one he was looking for. The
       defendant then instructed the driver to take him to the Waukegan train station, whereupon


                                                  -6-
       he robbed the driver and drove off in the cab. Id. at 457. The defendant was caught a short
       time later, in possession of a gun and a pillowcase. He admitted to the police that he intended
       to rob an unidentified jewelry store on Genesee Street and to use the stolen cab as a getaway
       car. The defendant did not know the name of the jewelry store but knew what the building
       looked like. Id.
¶ 28       The appellate court reversed the defendant’s conviction of attempted armed robbery of
       a jewelry store, and the supreme court affirmed. The supreme court stated that the
       defendant’s acts of carrying a gun, traveling to Waukegan, searching for the jewelry store,
       and driving the stolen cab that he intended to use as a getaway vehicle did not constitute the
       statutorily required substantial step necessary for an attempt crime. Id. at 462. The supreme
       court looked to the Model Penal Code factors in stating that: (1) the contemplated victim, the
       jewelry store, was never identified; (2) it could not be said that the defendant was
       reconnoitering the jewelry store, because the store was never identified by name, location,
       or physical description; and (3) the gun and pillowcase found on the defendant were not
       materials specifically designed for robbing a jewelry store, and they were not possessed near
       the place contemplated for the commission of the crime. Id. at 462-64.
¶ 29       In reference to Smith, defendant argues as follows. Here, there was no evidence of a
       firearm, the material to be employed in the commission of the crime. Absent the firearm, the
       sale could not have taken place, even if the police had not intervened when they did.
       Defendant never met Dorton and would have had to arrange to meet her another time to sell
       her the firearm, and thus the mere act of driving to the hotel was too far removed in time
       from the alleged attempted offense.
¶ 30       Defendant further cites People v. Walter, 349 Ill. App. 3d 142 (2004). There, the
       defendant and a 15-year-old exchanged e-mails regarding sex and sexual fantasies. The girl’s
       father notified the police, and the police instructed the girl to suggest meeting at a public
       place, such as a McDonald’s. The defendant agreed to meet the girl, saying that the girl could
       bring her best friend with her if it made her feel more comfortable. Id. at 143. In the girl’s
       place, an officer met the defendant at the McDonald’s. The defendant admitted that he knew
       the girl’s age and that, if he had committed the sexual acts he had discussed with her, it
       would have been a crime. The defendant had a box of condoms in his car, which he said he
       had bought “ ‘just in case he did have sex with [the girl] that day.’ ” Id. at 144. The defendant
       was convicted of attempted aggravated criminal sexual abuse, but this court reversed on
       appeal. We concluded that there was insufficient evidence of the defendant’s actual intent
       to have sex. We stated that, even otherwise, the defendant did not take a substantial step
       toward the commission of aggravated criminal sexual abuse, because merely driving to a
       meeting in a very public place fell short of a substantial step where the girl’s best friend was
       also invited and the conversations leading up to the meeting were not explicitly sexual. Id.
       at 147-48.
¶ 31       Defendant argues that, in this case, he went to the hotel in connection with a sales
       transaction, but, as in Walter, the police intervened before the meeting took place. Defendant
       argues that the communications with Dorton were very vague about the transaction’s terms,
       as there was not a set price for the gun or even a discussion about the type of gun. Defendant
       maintains that the parties were far from a meeting of the minds, much less an actual physical

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       exchange of a gun for cash.
¶ 32        Defendant also relies on United States v. Cea, 914 F.2d 881 (7th Cir. 1990). In Cea, the
       defendant was arrested after he left his home following a conversation with an undercover
       officer about purchasing drugs. The defendant had agreed to meet the officer at the phone
       booth from which the officer was calling. Id. at 884. The Seventh Circuit held that there was
       insufficient evidence of a substantial step, because there was no evidence that the officer told
       the defendant the actual location of the phone booth. Thus, it was unknown whether the
       defendant was heading in the direction of the phone booth, or even where he was arrested in
       relation to his home. Further, there was no evidence that the defendant had the money to
       complete the transaction. The court stated that, if “the government had been more patient and
       deferred [the defendant’s] arrest until it could be said with assurance that [he] was
       approaching [the undercover officer] at the pay phone, there would not be this substantial
       step problem.” Id. at 888. Defendant argues that, similar to Cea, he did not know where
       Dorton was and did not have the firearm for the transaction.
¶ 33        Defendant distinguishes the facts here from those in People v. White, 84 Ill. App. 3d 1044
       (1980). There, the defendant went into a food store and asked the owner if he wanted to buy
       food stamps. The defendant persisted even after the owner declined, saying that he needed
       the money and wanted to sell the stamps. The owner called the police, and a search of the
       defendant revealed that he had food stamps and documents indicating that he was authorized
       to receive the stamps. Id. at 1046. The appellate court rejected the defendant’s argument that
       there was insufficient evidence that he took a substantial step toward attempting to sell food
       stamps, stating that the defendant’s asking the store owner if he wanted to buy food stamps
       was a substantial step. Id. at 1047.
¶ 34        Defendant argues that White is distinguishable in one important respect because the
       defendant there had the object of the transaction in his possession and spoke personally to
       the would-be buyer, thereby showing that he had the present ability to consummate the sale.
       Defendant argues that all that was left in White, therefore, was for the store owner to agree
       to some terms, whereas here he did not have a gun in his possession or meet with Dorton.
¶ 35        Defendant further argues that, while narcotics are inherently illegal to possess, guns are
       not contraband per se and not all private firearm sales are illegal in Illinois. Defendant argues
       that at the time the police approached him, he could have been a lawful possessor of a
       firearm. He argues that there was no evidence that he knew that Dorton was a prostitute, and,
       even if he did, she could have still had a valid FOID card. Thus, he argues, the transaction
       was not inherently illegal when the police approached him. Defendant argues that at most the
       evidence shows that he drove to meet someone in connection with the sale of an unspecified,
       nonexistent gun for an unspecified price and then appeared but did not in fact meet the
       would-be buyer. Defendant argues that these facts do not prove that he took a substantial step
       toward the commission of an illegal sale of a gun.
¶ 36        The State cites People v. Patterson, 314 Ill. App. 3d 962 (2000), and People v. Scott, 318
       Ill. App. 3d 46 (2000). In Patterson, the defendant communicated over the Internet with an
       undercover officer posing as a 15-year-old boy. The defendant offered to perform oral sex
       on the boy, and he set up a meeting and described what he would be wearing. The defendant


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       thereafter proceeded to the meeting location, where he was arrested. Patterson, 314 Ill. App.
       3d at 965-66. The appellate court rejected the defendant’s argument that he had not taken a
       substantial step toward aggravated criminal sexual abuse, reasoning that, since the victim did
       not actually exist, the defendant had taken every possible step he could have toward the
       offense. Id. at 971.
¶ 37        In Scott, the defendant also had sexually explicit communication on the Internet with an
       officer posing as a boy. They agreed to meet at a Denny’s restaurant, and when the defendant
       arrived there he was arrested and admitted that he would have had sex with the boy if the boy
       had wanted to. Scott, 318 Ill. App. 3d at 49. The appellate court held that the defendant had
       completed a substantial step toward the commission of predatory criminal sexual assault. It
       stated that while the Internet communication alone would not have been enough, the
       defendant had both engaged in Internet conversations in which he enticed the boy to meet
       with him and then drove to the agreed-upon location for the meeting. Id. at 55.
¶ 38        The State argues that, under Scott and Patterson, it was not necessary for Dorton to have
       been present or for a gun to have been found for defendant to have taken a substantial step
       toward committing the offense of being an attempted armed habitual criminal. The State
       argues that defendant agreed to sell a gun to Dorton in two different telephone conversations,
       agreed to meet her at the hotel for the transaction, asked for directions to the hotel while en
       route, and drove to the hotel and parked his car there. The State argues that this case is
       distinguishable from Walter because defendant agreed to sell a gun to Dorton and the
       exchange of a gun was possible, even in a public area.1
¶ 39        The State argues that this case is distinguishable from Smith and Cea because here the
       location of the proposed sale was known to both parties, and defendant arrived at the
       designated location before he was arrested. The State further argues that, although the
       defendant in White possessed the food stamps he was trying to sell illegally, it was not a
       determining factor for the court, which instead relied on the fact that the defendant
       approached the store owner and repeatedly asked him to purchase the stamps. Therefore,
       argues the State, that defendant did not have a gun in his possession when the police stopped
       him is irrelevant in determining whether he had taken a substantial step toward committing
       the offense of being an armed habitual criminal.
¶ 40        We conclude that there was insufficient evidence to prove beyond a reasonable doubt that
       defendant took a substantial step toward committing the offense of being an armed habitual
       criminal. To convict defendant of being an attempted armed habitual criminal as charged, the
       State had to show that defendant took a substantial step toward receiving, selling, possessing,
       or transferring a firearm. See 720 ILCS 5/8-4(a), 24-1.7(a) (West 2010). Even viewed in the
       light most favorable to the State, the evidence showed that defendant showed up only to
       negotiate the terms of a sale, that there was no meeting of the minds, and that a separate
       encounter would have been necessary to actually transfer the gun. Indeed, as in Smith, while


              1
                Walter distinguished Scott and Patterson on the basis that in Walter the meeting was to
       include the girl’s friend and the communications leading up to the meeting were not explicitly
       sexual. Walter, 349 Ill. App. 3d at 148.

                                                 -9-
       the evidence demonstrated that defendant had an intent to sell a gun, at or near the place
       allegedly contemplated for the sale, defendant did not possess a gun.
¶ 41       That the most basic terms of the sale still had to be negotiated and that there was no
       evidence that defendant had a gun nearby distinguish this situation from Patterson and Scott.
       Each defendant there had a very sexually explicit conversation with a person he believed to
       be an underage boy, agreed to meet at a particular time and place, and drove to the
       prearranged location. Significantly, unlike in the instant case, the defendants in those cases
       did not need guns or other external materials to commit the underlying sex crimes. As
       Patterson stated, given that the victim did not actually exist, the defendant had taken every
       possible step short of the offense. Patterson, 314 Ill. App. 3d at 971. That is clearly not the
       situation here.
¶ 42       The missing materials for the crime also distinguish this case from White, as that
       defendant had on his person the food stamps he sought to sell. The State emphasizes the
       appellate court’s statement in White that the “defendant’s asking [the store owner] if he
       wanted to buy food stamps constituted a substantial step toward the commission of the crime
       of selling food stamps.” White, 84 Ill. App. 3d at 1047. However, that statement must be
       viewed in the context of the case, in which the defendant was in current possession of the
       goods to be illegally sold and could have immediately completed the sale.
¶ 43       The State legitimately emphasizes the actions defendant did take toward selling a gun,
       such as his repeatedly talking with Dorton and driving a significant distance to meet her.
       However, on a “continuum between preparation and perpetration,” a substantial step is an
       act that puts the defendant in “dangerous proximity to success.” (Internal quotation marks
       omitted.) Terrell, 99 Ill. 2d at 434. Defendant was not so close to success here, given that
       many essential steps remained, i.e., an agreement on the price and type of gun as well as a
       transfer of the gun. Cf. United States v. Delvecchio, 816 F.2d 859, 862 (2d Cir. 1987) (where
       the defendants’ plan to possess heroin had advanced only to the stage of meeting with
       suppliers to work out the deal’s terms, evidence of a verbal agreement alone was not
       sufficient to support an attempt conviction). Had the officers been more patient and waited
       until it was clear that defendant was in possession of a gun or otherwise ready, willing, and
       able to complete the transaction, there would not be this “substantial step” problem. See Cea,
       914 F.2d at 888. Accordingly, when defendant arrived at the scene, there was insufficient
       evidence that defendant had taken a substantial step toward the commission of the offense
       of being an armed habitual criminal, meaning that his attempt convictions must be reversed.
¶ 44       As defendant does not contest on appeal his conviction of and sentence for possession
       of a controlled substance, that conviction and sentence are affirmed.

¶ 45                                   III. CONCLUSION
¶ 46       For the foregoing reasons, we reverse defendant’s convictions of the offense of being an
       attempted armed habitual criminal and affirm defendant’s conviction of possession of a
       controlled substance.

¶ 47      Affirmed in part and reversed in part.

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