                             NO. 4-07-0208

                      IN THE APPELLATE COURT

                              OF ILLINOIS

                            FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Champaign County
DAREN M. LAMPTON,                      )    No. 04CF814
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Heidi Ladd,
                                       )    Judge Presiding.
_________________________________________________________________

                 MODIFIED UPON DENIAL OF REHEARING

           JUSTICE MYERSCOUGH delivered the opinion of the court:

           In May 2004, the State charged defendant, Daren M.

Lampton, with three counts of armed robbery (720 ILCS 5/18-

2(a)(1) (West 2002)), a Class X felony.       Following a November

2004 trial, a jury convicted defendant, and the trial court later

sentenced him to three concurrent terms of 35 years' imprison-

ment.   Defendant appealed, alleging (1) his multiple convictions

for armed robbery violated the one-act, one-crime rule; (2) a new

sentencing hearing was required because the court relied on

multiple armed-robbery convictions in sentencing when only one

conviction was proper; and (3) he was entitled to an additional

day of sentencing credit.     People v. Lampton, No. 4-05-0083

(August 8, 2006) (unpublished order under Supreme Court Rule 23).

This court affirmed defendant's convictions and sentences.       In

November 2006, defendant filed a postconviction petition in which
he alleged both trial counsel and appellate counsel were ineffec-

tive and that the Department of Corrections' mandatory-

supervised-release provisions were unconstitutional.    In February

2007, the trial court found defendant's petition was patently

without merit and dismissed the petition.   Defendant appeals,

alleging his postconviction petition stated the gist of a consti-

tutional claim that his appellate counsel was ineffective for

failing to challenge the sufficiency of the evidence.   We affirm.

                           I. BACKGROUND

           On May 5, 2004, the State charged defendant by informa-

tion with three counts of armed robbery (720 ILCS 5/18-2(a)(1)

(West 2002)), one count for each of the three bank tellers,

stemming from a single bank robbery.   Each count alleged defen-

dant "while armed with a dangerous weapon, pepper spray, know-

ingly took property, being United States currency *** by threat-

ening the imminent use of force."   The trial court conducted a

jury trial on November 9 and 10, 2004.

           Eric Moody testified he is a teller at Central Illinois

Bank.   On May 4, 2004, while Moody was working as a teller at the

bank, defendant walked into the lobby and approached the teller

counter.   Defendant jumped over the counter and ordered Moody and

two other tellers, Seth Fleener and Carrie Jackson, to empty

their drawers.   Moody said he felt threatened by defendant's

conduct.   Moody and the other tellers emptied their drawers and


                               - 2 -
put the money in a black garbage bag defendant was holding.

Defendant demanded Moody take him to the cash vault.   Moody's

supervisor, Amy Powell, was counting a shipment of money the bank

had received.   Defendant demanded that money.   After that money

was placed in the black garbage bag, defendant left the vault

area, jumped over the counter again, and left the bank.   The

police apprehended defendant shortly thereafter.

          On cross-examination, Moody stated he never saw defen-

dant with a gun or a knife in his hand, and in fact, he never saw

defendant with anything in his hand other than the garbage bag.

Defendant never told Moody he had any kind of weapon and never

swung his arms in an attempt to hit Moody or anybody else.

Defendant did not break any objects, throw anything, or have any

physical contact with Moody.   Moreover, defendant did not

threaten Moody.

          Seth Fleener, another teller at the bank, testified

similarly to Moody about the events during the robbery.   Although

defendant never presented a weapon, Fleener felt threatened by

defendant's conduct.   On cross-examination, Fleener stated

defendant never pulled weapons or anything out of his pockets,

did not try to hit or hurt Fleener, and did not say he had a gun.

          Amy Powell was a teller supervisor at Central Illinois

Bank on May 4, 2004.   Powell's testimony about the robbery was

similar to Moody's and Fleener's.   Defendant never threatened


                               - 3 -
Powell with a weapon, but she felt threatened during the robbery.

          Jeff Jolley is a Champaign police officer.    Jolley

responded to a report of a robbery at the bank.    Jolley saw

defendant running.   Jolley pursued defendant and finally appre-

hended him.   When searching defendant, Jolley found a small can

of "neutralizer," containing 10% pepper spray.    Jolley stated

pepper spray can cause extreme pain if a large enough dose is

sprayed in your face.    The spray causes the tear ducts to swell,

tearing, involuntary closure of the eyes, swelling of the mucus

membranes, and difficulty breathing.    Police departments use the

spray "to subdue someone, sort of takes the fight out of them."

          Dale Rawdin is a detective for the Champaign police

department.   Rawdin interviewed defendant at the police station.

Defendant indicated he was homeless and down on his luck so he

decided to rob a bank.   On cross-examination, defense counsel

asked Rawdin: "He told you that in his own words he did not have

a weapon when he went in, he told you that right?"    Rawdin

responded, "That's correct."   Rawdin also indicated defendant had

told him he did not want to hurt anybody during the robbery.

          Keith Johnston, a detective with the Champaign police

department, assisted Rawdin in the interview of defendant.

Johnston took defendant to the hospital after the interview.

While at the hospital, defendant told Johnston he "had a can of

Mace with him" and that he was going to use it on the tellers if


                                - 4 -
any of them tried anything.

           The State rested its case, and defendant moved for a

directed verdict.    The trial court denied defendant's motion.

           Defendant testified he was living at a homeless shelter

and had been given the pepper spray by a fellow resident for his

protection.    Defendant acknowledged he robbed the bank but denied

taking the pepper spray into the bank and stated he never threat-

ened anybody.    Instead, he said he left the pepper spray next to

the Dumpster in an alley near the bank where he had changed into

his disguise and retrieved the spray after leaving the bank.      He

testified he never told Johnston he brought the spray to use in

case the tellers acted up.

           Defendant rested and renewed his motion for directed

verdict.   The trial court denied the motion.

           The jury convicted defendant of all three counts of

armed robbery.    On November 15, 2004, defendant filed a motion

for acquittal or other relief.    Defendant argued pepper spray is

not a dangerous weapon and insufficient evidence showed defendant

used the threat of force to take the money.     On December 20,

2004, the trial court denied the motion and sentenced defendant

as stated.    On January 6, 2005, defendant filed a motion to

reconsider sentence that the trial court also denied.

           This court affirmed defendant's convictions and sen-

tences in his direct appeal, in which he alleged (1) his multiple


                                 - 5 -
convictions for armed robbery violated the one-act, one-crime

rule; (2) a new sentencing hearing was required because the court

may have relied on multiple armed-robbery convictions in sentenc-

ing when only one conviction was proper; and (3) he was entitled

to an additional day of sentencing credit.    People v. Lampton,

No. 4-05-0083 (August 8, 2006) (unpublished order under Supreme

Court Rule 23).

          On November 29, 2006, defendant filed a pro se

postconviction petition.   Defendant made several claims trial

counsel and appellate counsel were ineffective.    Defendant also

alleged the Department of Corrections' mandatory-supervised-

release provisions were unconstitutional.    On February 23, 2007,

the trial court dismissed defendant's petition as frivolous and

patently without merit.

          This appeal followed.

                           II. ANALYSIS

          On appeal, defendant contends his postconviction

petition alleged the gist of a constitutional claim his appellate

counsel was ineffective for failing to challenge the sufficiency

of the evidence on the ground the State did not prove defendant

committed the offense while possessing a "dangerous weapon," an

essential element of the crime of armed robbery.

          "When a defendant challenges the sufficiency

          of the evidence, the relevant inquiry is


                               - 6 -
          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."    People v. Woods, 214 Ill.

          2d 455, 470, 828 N.E.2d 247, 257 (2005).

A. To Survive First-Stage Dismissal of a Postconviction Petition
    Defendant Must Allege the Gist of a Constitutional Claim

          In this case, the trial court dismissed defendant's

postconviction petition at the first stage.      At the first stage,

the trial court examines the postconviction petition to determine

whether it is frivolous or patently without merit.      People v.

Edwards, 197 Ill. 2d 239, 244, 757 N.E.2d 442, 445 (2001).      If

the court determines the petition is frivolous or patently

without merit, the court must dismiss the petition.      Edwards, 197

Ill. 2d at 244, 757 N.E.2d at 445.      "To withstand dismissal at

the first stage of postconviction proceedings, a pro se petition

for postconviction relief need only contain a simple statement

that presents the 'gist of a claim for relief' when nothing in

the trial record contradicts that claim."      People v. Patton, 315

Ill. App. 3d 968, 972, 735 N.E.2d 185, 189 (2000).      "The 'gist'

standard is 'a low threshold.'"    Edwards, 197 Ill. 2d at 244, 757

N.E.2d at 445, quoting People v. Gaultney, 174 Ill. 2d 410, 418,

675 N.E.2d 102, 106   (1996).   To set forth the "gist" of a

constitutional claim, the postconviction petition "'need only

                                - 7 -
present a limited amount of detail'" and need not set forth the

claim in its entirety.    Edwards, 197 Ill. 2d at 244, 757 N.E.2d

at 445, quoting Gaultney, 174 Ill. 2d at 418, 675 N.E.2d at 106.

We review the first-stage dismissal of a postconviction petition

de novo.    People v. Little, 335 Ill. App. 3d 1046, 1051, 782

N.E.2d 957, 962 (2003).

 B. To Demonstrate Ineffective Assistance of Appellate Counsel,
Defendant Must Show Both That Counsel's Performance Was Deficient
            and Prejudice Resulted From the Deficiency

            Defendant's sole contention on appeal is that he did

not receive the effective assistance of appellate counsel because

counsel failed to argue the State failed to prove an essential

element of the offense of armed robbery beyond a reasonable

doubt, i.e., that defendant possessed a "dangerous weapon."      A

defendant who argues he received ineffective assistance of

counsel must demonstrate both a deficiency in counsel's perfor-

mance and that prejudice resulted from the deficiency.     People v.

Edwards, 195 Ill. 2d 142, 162, 745 N.E.2d 1212, 1223 (2001),

citing Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d

674, 693, 104 S. Ct. 2052, 2064 (1984).    Claims of ineffective

assistance of appellate counsel are measured against the same

standard.    People v. Makiel, 358 Ill. App. 3d 102, 105, 830

N.E.2d 731, 737 (2005).

            "A defendant who claims that appellate coun-

            sel was ineffective for failing to raise an


                                - 8 -
           issue on appeal must allege facts demonstrat-

           ing that such failure was objectively unrea-

           sonable and that counsel's decision preju-

           diced defendant.    If the underlying issue is

           not meritorious, then defendant has suffered

           no prejudice."     People v. Enis, 194 Ill. 2d

           361, 377, 743 N.E.2d 1, 11 (2000).

 C.   The State Proved Defendant Possessed a Dangerous Weapon for
               Purposes of the Armed-Robbery Statute

           As stated, defendant contends he did not possess a

"dangerous weapon," within the meaning of the armed-robbery

statute, while committing the robbery.     Section 18-1(a) of the

Criminal Code of 1961 (Criminal Code) states, "A person commits

robbery when he or she takes property *** from the person or

presence of another by the use of force or by threatening the

imminent use of force."     720 ILCS 5/18-1(a) (West 2002).   The

section of the armed-robbery statute under which the State

charged defendant states, "A person commits armed robbery when he

or she violates [s]ection 18-1; and (1) he or she carries on or

about his or her person or is otherwise armed with a dangerous

weapon other than a firearm."     720 ILCS 5/18-2(a)(1) (West 2002).

           "The purpose of the armed[-]robbery statute is to treat

more severely a person who commits a robbery while possessing a

weapon actually capable of causing serious injury than a person

who commits a robbery without possessing such a weapon."      People

                                  - 9 -
v. Lindsay, 263 Ill. App. 3d 523, 527-28, 635 N.E.2d 551, 555

(1994).    The presence of a dangerous weapon is the extra ingredi-

ent that changes a robbery into an armed robbery and must be

proved beyond a reasonable doubt.    People v. Dunivant, 96 Ill.

App. 3d 62, 64, 420 N.E.2d 1110, 1112 (1981).    This can be

inferred from circumstantial evidence.    Dunivant, 96 Ill. App. 3d

at 64, 420 N.E.2d at 1112.   "[A] conviction for armed robbery may

be sustained even though the weapon itself was neither seen nor

accurately described by the victim."     People v. Coleman, 128 Ill.

App. 3d 538, 545, 470 N.E.2d 1277, 1282 (1984).

           Because defendant has admitted he in fact robbed the

bank, we need only determine whether he did so with a "dangerous

weapon."   To determine whether there was sufficient evidence

defendant committed armed robbery, we must first decide whether

sufficient evidence suggested that defendant possessed a weapon

during the robbery.    Although no victim testified he or she saw a

weapon during the robbery, circumstantial evidence suggested

defendant possessed the pepper spray while robbing the bank.       As

stated, defendant's possession of a weapon can be inferred from

circumstantial evidence.   In this case, Detective Johnston stated

defendant told him he took the pepper spray with him into the

bank in case he needed to use the spray on the tellers.    Defen-

dant denied saying this and maintained he did not take the pepper

spray into the bank.   "It is the trier of fact's responsibility


                               - 10 -
to determine the witnesses' credibility and the weight given to

their testimony, to resolve conflicts in the evidence, and to

draw reasonable inferences from the evidence; we will not substi-

tute our judgment for that of the trier of fact on these mat-

ters."    People v. Brooks, 187 Ill. 2d 91, 132, 718 N.E.2d 88, 111

(1999).    Obviously, the jury believed Johnston's testimony over

defendant's.    Moreover, the can of pepper spray was found on

defendant's person when he was apprehended shortly after the

robbery, raising the inference he had it on him during the

robbery.    Viewing this evidence in the light most favorable to

the prosecution, the evidence was sufficient to show defendant

possessed the pepper spray during the robbery.

            Since we have determined the trier of fact was entitled

to conclude defendant possessed the pepper spray during the

robbery, we must now determine whether the pepper spray was a

"dangerous weapon" within the meaning of the armed-robbery

statute (720 ILCS 5/18-2 (West 2002)).    While section 18-2 of the

Criminal Code does not define the term "dangerous weapon,"

Illinois courts have defined the term by dividing objects alleged

to be "dangerous weapons" into four categories.    Lindsay, 263

Ill. App. 3d at 528, 635 N.E.2d at 555.    This court recognized

these four categories in People v. Elliott, 299 Ill. App. 3d 766,

702 N.E.2d 643 (1998), the only case addressing pepper spray

being used as a "dangerous weapon" within the meaning of Illi-


                               - 11 -
nois' armed-robbery statute.

          "The first category contains objects that are

          dangerous per se, such as knives and loaded

          guns.   People v. Neither, 166 Ill. App. 3d

          896, 900, 520 N.E.2d 1247, 1249 (1988).     The

          second category contains objects that are

          never dangerous weapons.      People v. Skelton,

          83 Ill. 2d 58, 66-67, 414 N.E.2d 455, 458

          (1980) (four-inch plastic toy gun as a matter

          of law not considered dangerous weapon).     The

          third category contains objects that are not

          necessarily dangerous weapons but can be used

          as such.   People v. Flores, 245 Ill. App. 3d

          149, 158, 613 N.E.2d 1372, 1379 (1993) (un-

          loaded guns or toy guns made of heavy mate-

          rial fall into this category since they are

          incapable of shooting bullets but can be used

          as bludgeons); People v. Robinson, 73 Ill. 2d

          192, 201-02, 383 N.E.2d 164, 169-70 (1978)

          (fingernail clippers with a sharpened file).

          Whether an object in the third category is a

          dangerous weapon is a question of fact to be

          resolved by the trier of fact.     Flores, 245

          Ill. App. 3d at 158, 613 N.E.2d at 1379.     The


                               - 12 -
            fourth category contains objects that could

            normally fall into the third category, but

            which were actually used in a dangerous man-

            ner in the course of the robbery.     See, e.g.,

            People v. de la Fuente, 92 Ill. App. 3d 525,

            535-36, 414 N.E.2d 1355, 1363-64 (1981) (de-

            fendants bludgeoned victim with unloaded

            gun)."     Elliott, 299 Ill. App. 3d at 772, 702

            N.E.2d at 647.

            However, our supreme court recently recognized Illinois

Appellate Court cases have refined the common-law definition of

dangerous objects into these categories but stated "[t]his effort

at categorization is nothing more than a recognition of the

proper role for the trier of fact."        People v. Ross, 229 Ill. 2d

255, 275, 891 N.E.2d 865, 878 (2008).       The court went on to state

that "Illinois cases do not create a mandatory presumption that

any gun is a dangerous weapon.      Instead, our cases conclude the

trier of fact may make an inference of dangerousness based upon

the evidence."       Ross, 229 Ill. 2d at 275-76, 891 N.E.2d at 878.

To prove a gun is a dangerous weapon, the State may present

evidence the gun was loaded and operable or by presenting evi-

dence the gun was used or capable of being used as a club or

bludgeon.    Ross, 229 Ill. 2d at 276, 891 N.E.2d at 878.

            In Elliott, the defendant argued that, as a matter of


                                  - 13 -
law, pepper spray is not a dangerous weapon under the armed-

robbery statute.     Elliott, 299 Ill. App. 3d at 771, 702 N.E.2d at

647.   The defendant pointed out he did not spray directly in the

victims' faces.     Elliott, 299 Ill. App. 3d at 773, 702 N.E.2d at

647-48.   This court stated the following in rejecting the defen-

dant's argument:

           "Since the victims were lying on the floor at

           defendant's order, they were not in any posi-

           tion to attack him.    It is obvious that de-

           fendant used the pepper spray to disable the

           victims while defendant and his cohorts made

           their getaway.   His argument that he was

           using the spray in a defensive manner is

           without merit.   In any event, it is irrele-

           vant what defendant's intent was when he used

           the spray.    The statute requires only that he

           be armed with a dangerous weapon, not that it

           actually be used.

                  Pepper spray falls within the fourth

           category of objects that are actually used in

           a dangerous manner.    Therefore, the question

           of whether the pepper spray constituted a

           dangerous weapon in defendant's case was

           properly one for the trier of fact to deter-


                                 - 14 -
          mine.   In addition, we do not find any error

          in the trial court's factual determination

          that pepper spray is a dangerous weapon.

          Although there was testimony that the effects

          of pepper spray are normally temporary, there

          is no question that its effects are

          disabling.   Both victims testified that after

          the spray was used, they had difficulty

          breathing and their eyes burned.    One of the

          victims stated that the spray made her feel

          nauseated.   They were both temporarily inca-

          pacitated by the effects of the spray.    These

          effects did not wear off completely until

          several hours after the robbery.    The victims

          suffered injury and the fact that the inju-

          ries were not permanent does not change our

          conclusion." (Emphasis added.)     Elliott, 299

          Ill. App. 3d at 773, 702 N.E.2d at 648.

          While Ross seems to eliminate the categorization

utilized in Elliott and other appellate court cases addressing

what is a dangerous weapon under the armed-robbery statute, this

court's decision in Elliott is still instructive on the ultimate

issue, whether pepper spray is a dangerous weapon under the

armed-robbery statute.   The fact defendant in the case sub judice

did not actually use the pepper spray is of no moment.      While the

                              - 15 -
defendant in Elliott used the pepper spray on his victim, the

Elliott court went on to state "[t]he statute requires only that

he be armed with a dangerous weapon, not that it actually be

used."   Elliott, 299 Ill. App. 3d at 773, 702 N.E.2d at 648.

Moreover, as stated, a conviction for armed robbery can be

sustained even if the victim never (1) saw the weapon during the

robbery or (2) accurately described the weapon.     Coleman, 128

Ill. App. 3d at 545, 470 N.E.2d at 1282.   Here, defendant was

armed with pepper spray, a weapon which the police testified is

extremely painful if sprayed on the face, causing tearing,

swelling, and difficulty breathing.    The Elliott court also

recognized pepper spray's effects as "disabling."    Elliott, 299

Ill. App. 3d at 773, 702 N.E.2d at 648.    Here, it can be inferred

defendant knew the can of pepper spray actually contained pepper

spray from the fact defendant confessed to Detective Johnston he

intended to use it to spray in the tellers' faces to debilitate

them if necessary.   This differentiates this case from cases such

as People v. Thorne, 352 Ill. App. 3d 1062, 1073, 817 N.E.2d

1163, 1173 (2004), where the court reduced the defendant's armed-

robbery conviction to simple robbery because there was no evi-

dence the BB gun used in the robbery was loaded, capable of being

used as a bludgeon, or used in a dangerous manner.    Accordingly,

we conclude the pepper spray was a "dangerous weapon" under the

armed-robbery statute.

           Because the defendant's underlying claim that the State

                              - 16 -
did not prove he committed the robbery while possessing a "dan-

gerous weapon" is without merit, appellate counsel was not

ineffective on this basis and the trial court properly dismissed

defendant's postconviction petition at the first stage.



                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we award the State its $50

statutory assessment as costs of this appeal.

            Affirmed.

            APPLETON, P.J., and COOK, J., concur.




                               - 17 -
