Filed 1/27/10              NO. 4-08-0797

                       IN THE APPELLATE COURT

                            OF ILLINOIS

                          FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellant,         )    Circuit Court of
          v.                           )    Adams County
CHAUNCEY PERRY,                        )    No. 08CF358
          Defendant-Appellee.          )
                                       )    Honorable
                                       )    Michael R. Roseberry,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE POPE delivered the opinion of the court:

          In July 2008, the State charged defendant, Chauncey

Perry, with aggravated battery, a Class 3 felony (720 ILCS 5/12-

4(b)(1), (e)(1) (West 2006)), and unlawful use of weapons by a

felon, a Class 1 felony (720 ILCS 5/24-1.1(b), (e) (West 2006)).

Defendant was an inmate in the Department of Corrections at the

time of the July 2006 incident.   While the information calls the

charge "Unlawful Use of Weapons by Felons," defendant was actu-

ally charged with "Unlawful Possession of a Weapon by a Person in

a Penal Institution of the Department of Corrections," pursuant

to section 24-1.1(b) of the Criminal Code of 1961 (720 ILCS 5/24-

1.1(b) (West 2006)).   Defendant possessed a metal padlock inside

a knotted sock and swung this improvised weapon into the face of

another inmate.

          In October 2008, a jury was empaneled.   After several

witnesses had testified for the prosecution, the State moved to
admit its exhibits, including the lock and the sock described

above.   Defense counsel objected on the basis the object did not

constitute a "bludgeon" within the meaning of the unlawful-use-

of-weapons statute.    720 ILCS 5/24-1(a)(1) (West 2006).   The

trial court dismissed the unlawful-use-of-weapons count for

failure to state an offense.    The court held no reasonable jury

could find the padlock in a sock was a "bludgeon" as charged in

the information and prohibited by statute (720 ILCS 5/24-1(a)(1)

(West 2006)).   The court permitted the State to amend the

aggravated-battery charge to delete the word "bludgeon" following

"a deadly weapon."    The jury heard the evidence and convicted

defendant of aggravated battery.    In December 2008, the court

sentenced defendant to six years and six months’ imprisonment on

the aggravated-battery conviction.

          The State appeals, arguing the trial court erred in

dismissing the unlawful-use-of-weapons count because the padlock

in a sock is a "bludgeon" within the meaning of the statute.      In

addition, the State argues if the padlock in a sock is not a

bludgeon, rather than dismissal, the State should have been

allowed to amend the information.

          No challenge is made to defendant's aggravated-battery

conviction.   We reverse the trial court’s judgment dismissing the

unlawful-use-of-weapons count and remand the case with direc-

tions.


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                            I. BACKGROUND

           On July 13, 2006, defendant was confined in the Western

Illinois Correctional Center Clayton work camp.      While standing

in line to be served food, defendant swung a sock containing a

padlock and deliberately struck the inmate behind him in the

face.   The padlock had been issued to defendant by the Department

of Corrections for the purpose of securing his belongings.

Defendant testified he had been carrying the sock containing a

padlock, for the purpose of protection, for approximately one

week before the incident.   A knot was tied in the sock to keep

the padlock inside.

           As stated, the State charged defendant with aggravated

battery and unlawful use of weapons by a person in the custody of

a Department of Corrections facility.    The information referred

to the weapon as a bludgeon, a statutorily prohibited weapon (720

ILCS 5/24-1(a)(1) (West 2006)).   After presenting several wit-

nesses in an October 2008 jury trial, the State attempted to

introduce the sock and padlock into evidence.      Defense counsel

objected, arguing the sock-and-padlock combination was not a

bludgeon under the statute upon which the charge was brought.

The trial court held no reasonable jury could find the padlock in

a sock was a "bludgeon" and dismissed the unlawful-use-of-weapons

count for failure to state an offense.      The court denied the

State’s motion for an interlocutory appeal.      The jury convicted


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defendant of aggravated battery, and the court sentenced him as

stated.

          This appeal followed.

                             II. ANALYSIS

                       A. Standard of Review

          The trial court held as a matter of law that defen-

dant’s padlock in a sock was not a bludgeon.   We review questions

of law de novo.   Naleway v. Agnich, 386 Ill. App. 3d 635, 647,

897 N.E.2d 902, 915 (2008).

   B. Trial Court’s Determination: Lock in Sock Not a Bludgeon

          In attempting to determine if the padlock in a sock was

a bludgeon, the trial court consulted the Oxford English Dictio-

nary, the Random House Dictionary, and the New Collegiate

Dictionary before noting, "[t]he common definition of bludgeon is

a short stick or club."   The court then attempted to assess the

intent of the legislature.    The primary objective when interpret-

ing a statutory term is to give effect to the intent of the

legislature.   People v. Kohl, 364 Ill. App. 3d 495, 499, 847

N.E.2d 150, 154 (2006).

          The trial court found the legislature restricted the

unlawful-use-of-weapons offense to those weapons specifically

listed in the statute without including "catch-all" language such

as "other dangerous weapons."    The court further found the common

definition of "bludgeon" to be a short stick or club.   The court


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noted a sock is not rigid or stick-like and therefore not a

bludgeon.    The court allowed the State to proceed on count II,

the aggravated-battery charge, because, although not a bludgeon,

the lock in the sock could be found by a jury to be a deadly

weapon.   The trial court reasoned if the legislature had wanted

additional expansive language added to the unlawful-use-of-

weapons statute, it could have expressly included it in subsec-

tion (a)(1) of section 24-1 (720 ILCS 5/24-1 (West 2006)).

Therefore, to convict defendant under the unlawful-use-of-weapons

statute, the padlock in a sock must literally be a bludgeon, not

merely something similar to a bludgeon or a "dangerous weapon of

like character."

              C. Trial Court’s Definition Is Too Narrow

            We look to the dictionary as well.   Instead of blud-

geon, we first turn to the definition of "blackjack."     Black’s

Law Dictionary defines a "blackjack" in several ways, including

as "[a] short bludgeon consisting of a heavy head, as of metal,

on an elastic shaft or with a flexible handle."     Black’s Law

Dictionary 154 (5th ed. 1979).    Thus, a blackjack meeting this

specification is a bludgeon.    Not all bludgeons are blackjacks,

but all blackjacks consisting of a heavy head, as of metal, on an

elastic shaft or with a flexible handle are bludgeons.     In

essence, a blackjack is a specialty type of bludgeon.     The common

definition of "bludgeon" simply does not specifically list this


                                 - 5 -
subset of bludgeons.    Even Black’s Law Dictionary defines "blud-

geon" in the general sense as "[a] heavy club or stick used as a

weapon, commonly weighted in one end by metal."      Black’s Law

Dictionary 157 (5th ed. 1979).

            No decisive cases in Illinois establish exactly what

constitutes a bludgeon.     People v. Collins, 6 Ill. App. 3d 616,

619, 286 N.E.2d 117, 119 (1972).    However, under Illinois law a

bludgeon need not take the form of a club or stick.      Collins, 6

Ill. App. 3d at 619, 286 N.E.2d at 119 (after consulting Black’s

Law Dictionary, holding that a heavy metal chain wrapped with

tape satisfied the definition of both "bludgeon" and "black-

jack").

            Recognizing that a bludgeon may take the form of a

blackjack, in addition to the more common form of a club or

stick, we next consider whether a reasonable jury could find the

padlock in a sock to be a bludgeon.      The padlock in the end of

the sock could be considered a heavy head, especially since made

of metal.    The sock could also be interpreted to be an elastic

shaft or flexible handle.    A reasonable jury could find defen-

dant’s padlock in a sock to be a bludgeon in the form of a

blackjack.    Such a finding would be supported by the fact that

the padlock-and-sock combination had no legitimate use other than

as a weapon.    See Collins, 6 Ill. App. 3d at 619, 286 N.E.2d at

119; People v. Tate, 68 Ill. App. 3d 881, 882-83, 386 N.E.2d 584,


                                 - 6 -
586 (1979).   The sock could not be worn with a padlock in the

toe, and the padlock could not be used for locking up defendant’s

belongings while tied up in the sock.    We note that a prisoner

employing a lock in a sock as a bludgeon is not a new phenomenon.

See Shrader v. White, 761 F.2d 975, 982 (4th Cir. 1985) ("a lock

inside a sock [becomes] a bludgeon").

           Since a reasonable jury could find the padlock in a

sock to be a bludgeon, the trial court erred in dismissing the

unlawful-use-of-weapons count (720 ILCS 5/24-1.1(b) (West 2006)).

                           III. CONCLUSION

           For the reasons stated, we reverse the trial court’s

judgment dismissing the unlawful-use-of-weapons count and remand

for trial on that count.   If defendant should be convicted,

defense counsel may make any arguments deemed appropriate regard-

ing merger of the Class 3 aggravated-battery conviction with any

Class 1 sentence imposed on count I.    To avoid confusion, the

name of the charge in count I should conform to the substance of

the charge, i.e., "Unlawful Possession of a Weapon by a Person in

the Custody of a Department of Corrections Facility."    We affirm

the conviction and sentence for aggravated battery, without

prejudice to any merger argument and the trial court's ruling

thereon.

           Affirmed in part and reversed in part; cause remanded

with directions.


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MYERSCOUGH, P.J., and KNECHT, J., concur.




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