                                      2014 IL App (1st) 111797


                                                                                 SECOND DIVISION
                                                                                 August 12, 2014




No. 1-11-1797



THE PEOPLE OF THE STATE OF ILLINOIS,                            )       Appeal from the
                                                                )       Circuit Court of
                        Plaintiff-Appellee,                     )       Cook County
                                                                )
v.                                                              )       No. 07 CR 11206-02
                                                                )
JAMES FALCO,                                                    )       Honorable
                                                                )       Luciano Panici,
                        Defendant-Appellant.                    )       Judge Presiding.



        JUSTICE PIERCE delivered the judgment of the court, with opinion.
        Presiding Justice Harris and Justice Simon concurred in the judgment and opinion.


                                              OPINION


¶1      Following a jury trial, defendant James Falco was convicted of possession of a firearm

with defaced identification marks (720 ILCS 5/24-5(b) (West 2006)) and was sentenced to 2

years' probation with 90 days in the Cook County department of corrections. Defendant now

appeals and argues: (1) the State improperly amended the indictment a week before trial without

sending the case back to the grand jury; (2) the amendment to the indictment came after the

statute of limitations had run; (3) the trial court erred where it did not instruct the jury that
No. 1-11-1797


possession of a firearm with defaced identification marks must be knowing and intentional; and

(4) trial counsel was ineffective for failing to object to the amendment to the indictment and for

failing to request a jury instruction on "knowingly." For the following reasons, we reverse and

remand this cause for a new trial.

¶2                                     BACKGROUND

¶3      Corporal Christopher Connors of the Blue Island police department testified that on

December 28, 2006, at about 7:50 p.m., he was on patrol in an unmarked squad car near 127th

Street and Western Avenue. As he was traveling southbound on Western Avenue, he saw an

older model gold Cadillac in front of him with no rear license plate light. Corporal Connors was

unable to read the license plate number. He observed the Cadillac move from the left lane to the

right lane without signaling.

¶4     After the driver switched lanes a second time without signaling, Corporal Connors

effectuated a traffic stop at 127th and Lincoln. Corporal Connors identified defendant as the

passenger and James Dattolo as the driver. Dattolo provided a driver's license but did not have

proof of insurance. The men then offered unsolicited statements about their business in Blue

Island. Corporal Connors asked the men to step out of the car.

¶5     Corporal Connors learned that defendant owned the vehicle. Corporal Connors requested

consent to search the vehicle. After opening the trunk, Corporal Connors discovered a bag with

78 rounds of 7.62-caliber ammunition and an SKS assault rifle wrapped in a towel. Corporal

Connors noticed that the serial number was scratched off and there was a bolt underneath the

trigger area to modify the rifle's operation. Corporal Connors arrested defendant and Dattolo and

transported them to the Blue Island police station.



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¶6         Detective Jeff Werniak testified that he mirandized defendant and interviewed him on

December 29, 2006. Defendant waived his Miranda rights and told Detective Werniak that he

was in Blue Island with Dattolo to have his car fixed at Dattolo's cousin's garage. A friend of

Dattolo's cousin was at the garage and told defendant and Dattolo that he had a rifle he was

selling for $400. Defendant and Dattolo looked at the rifle and agreed to purchase it together for

$400. They put the rifle in the trunk of the car and were stopped by police on the way home.

Detective Werniak stated that defendant informed him that he consented to the search of his car

and that the rifle was found pursuant to the search. Detective Werniak testified that he wrote up

the statement and he and defendant signed it.

¶7         Patricia Wallace, a forensic scientist and an expert in the field of firearms identification

for the Illinois State Police, testified that she examined the rifle found in the trunk of defendant's

car. There were several defaced areas on the receiver, on the bolt carrier, on the bolt and on the

trigger guard. Those areas were where the serial number would be. The rifle had been modified

to fire in fully automatic mode. The State rested.

¶8         Defendant testified that on the evening of December 28, 2006, Dattolo had called him

and asked if he could borrow the defendant's car. Defendant agreed but informed Dattolo that he

was having issues with the steering. Dattolo told defendant has his cousin could possibly repair

the car.

¶9         On their way home from Dattolo's cousin's house, he and Dattolo were pulled over near

127th and Western in Blue Island. Dattolo was driving because defendant's license was

suspended. Corporal Connors asked both men to step out of the car. He and Dattolo were

handcuffed and placed in a squad car and taken to the Blue Island police station about 10



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minutes later.

¶ 10   When he arrived at the police station, he was placed in a holding cell. He had a

conversation with Detective Werniak the following day. After his conversation, he was escorted

to the lunchroom and was told he could go home after signing some papers. He testified that he

signed a paper but never saw any statement or made any confession to Detective Werniak.

Defendant testified that he never purchased a weapon.

¶ 11   After closing argument, defendant was convicted of possession of a firearm with defaced

identification marks. Defendant was sentenced to 2 years' probation with 90 days in the Cook

County department of corrections. It is from this judgment that defendant now appeals.

¶ 12                                        ANALYSIS

¶ 13   Defendant raises four issues on appeal. We note that defendant has acknowledged that

three of the four issues he raises before this court are waived because he failed to object at trial

and or failed to include those issues in his postrial motion. See People v. Enoch, 122 Ill. 2d 176

(1988) (issues not objected to at trial and raised in a posttrial motion are waived for purposes of

review). Defendant asks us to overlook these waivers and consider his arguments under the plain

error rule. However, we decline to do so because we find defendant's preserved claim of

ineffective assistance of counsel for failing to request a jury instruction to be dispositive.

¶ 14   Defendant argues that trial counsel was ineffective for failing to: (1) object to the State's

amendment to the indictment; (2) object to the new charge that was brought beyond the statute of

limitations; and (3) object to a legally erroneous jury instruction. In determining whether a

defendant was denied the effective assistance of counsel, we apply the familiar two-prong test set

forth in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by our supreme court in



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People v. Albanese, 104 Ill. 2d 504 (1984). To prevail on a claim of ineffective assistance of

counsel, a defendant must show that counsel's performance was deficient and that the deficient

performance prejudiced the defendant such that he was deprived of a fair trial. Strickland, 466

U.S. at 687; People v. Patterson, 217 Ill. 2d 407, 438 (2005). To establish prejudice, the

defendant must show a reasonable probability that, absent counsel's alleged error, the trial's

outcome would have been different. People v. Evans, 209 Ill. 2d 194, 220 (2004). "A reasonable

probability of a different result is not merely a possibility of a different result." Id. If the

defendant fails to establish either prong, his ineffective assistance claim must fail. Strickland,

466 U.S 668. Where the facts relevant to an ineffective assistance of counsel claim are not

disputed, our review is de novo. People v. Bew, 228 Ill. 2d 122, 127 (2008); People v. Tolefree,

2011 IL App (1st) 100689, ¶ 25.

¶ 15    Jury instructions are necessary to provide the jury with the legal principles applicable to

the evidence presented so that it may reach a correct verdict. People v. Hopp, 209 Ill. 2d 1, 8

(2004). Illinois Supreme Court Rule 451(a) (eff. July 1, 2006) provides that whenever the

Illinois Pattern Jury Instructions (IPI) contains an applicable jury instruction and the court

determines that the jury should be instructed on the subject, “the [IPI instruction] shall be used,

unless the court determines that it does not accurately state the law.” Where no IPI instruction

exists on a subject, the court has the discretion to give a nonpattern jury instruction. People v.

Ramey, 151 Ill. 2d 498, 536 (1992).

¶ 16    It is well settled in Illinois that counsel's choice of jury instructions, and the decision to

rely on one theory of defense to the exclusion of others, is a matter of trial strategy. People v.

Sims, 374 Ill. App. 3d 231, 267 (2007). “Such decisions enjoy a strong presumption that they



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reflect sound trial strategy, rather than incompetence,” and therefore, are “generally immune

from claims of ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 378 (2000).

However, the failure to request a particular jury instruction may be grounds for finding

ineffective assistance of counsel if the instruction was so critical to the defense that its omission

“ 'den[ied] the right of the accused to a fair trial.' ” People v. Johnson, 385 Ill. App. 3d 585, 599,

(2008) (quoting People v. Pegram, 124 Ill. 2d 166, 174 (1988)).

¶ 17   Defendant faults defense counsel for failing to request an instruction that would have

informed the jury that in order for the State to meet its burden of proof for the offense of

possession of a firearm with defaced identification marks, the State must prove that defendant

knowingly or intentionally possessed the firearm. The State proceeded to trial on the offense of

possession of a firearm with defaced identification marks, which is defined as, “[a] person who

possesses any firearm upon which any such importer’s or manufacturer’s serial number has been

changed, altered, removed or obliterated commits a Class 3 felony.” 720 ILCS 5/24-5(b) (West

2006). The jury in this case was instructed using a non-IPI instruction for possession of a

firearm with defaced identification marks and the court instructed the jury as follows: "A person

commits the offense of Possession of a Firearm with Defaced Identification Marks when he

possesses any firearm upon which such importer's or manufacturer's serial number has been

changed, altered, removed or obliterated." This instruction tracks the language of the statute.

¶ 18   Section 24-5(b) of the Criminal Code of 1961 (Code) does not explicitly state the

applicable mens rea. However, to sustain defendant's conviction of possession of a firearm with

a defaced serial number the State is required to prove, beyond a reasonable doubt, that defendant

intentionally or knowingly possessed a firearm upon which the serial number has been changed,



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No. 1-11-1797


altered, removed, or obliterated. Id.; People v. Stanley, 397 Ill. App. 3d 598, 609 (2009). In

Stanley, after extensive analysis, this court found that although the offense of possession of a

defaced firearm does not identify a mental state, the elements of the offense of possession of a

defaced firearm are knowledge and possession. Proof of knowledge of the defacement was not

required. Therefore, the State must prove the knowing possession of the firearm by defendant

but need not prove defendant's knowledge of the character of the firearm. Id. at 609. The

Stanley court rejected the notion that possession of a firearm with defaced identification marks is

a strict liability offense. Id.

¶ 19     Where the mental state is implied, as it is here, a court is not always required to instruct

the jury as to the required mental state. In People v. Burton, 201 Ill. App. 3d 116 (1990), the

defendant argued he was entitled to instructions setting forth the mental state necessary to

convict him of the offense of aggravated criminal sexual assault because a jury must be

instructed as to each element of the offense charged. This court found that it was usually not

necessary to instruct a jury concerning mental states implied by that section of the Code, but

noted:

         “[S]ome mental states involved in offenses, although not specifically mentioned in the

         statute defining the offense, may be implied in the offense and be specific enough to

         require instruction to the jury. Under some circumstances, the mental state implied by

         section 4-3 of the Code may possibly be so specific as to require instruction.” Burton,

         201 Ill. App. 3d at 122.

¶ 20     In People v. Abdul-Mutakabbir, 295 Ill. App. 3d 558 (1998), the defendant was

convicted of eight counts of false impersonation of a judicial official and appealed the conviction



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contending that he was denied a fair trial when the court refused to instruct the jury as to the

necessary mental state. After determining that the offense of false impersonation of a judicial

officer was not a strict liability offense, this court found that the necessary mental state was

knowledge, applicable to the falsity element of the offense. We agreed with the defendant that

the mental state of knowledge implied with respect to the falsity element of an offense was

specific enough to require an instruction and that the trial court erred in refusing the defendant's

request that the word knowledge be inserted into the elements instruction. Id. "In cases where a

person is charged with falsely representing himself to be an attorney authorized to practice law,

there will rarely be a question as to whether the representation was false, but there may well be a

question as to whether the person knew that the representation was false, especially in the case of

a recently suspended attorney." Id. at 563.

¶ 21   We conclude the mental state implied in section 24-5(b), being knowingly and

intentionally, required to sustain a charge of possession of a defaced firearm is specific enough to

require instruction. The offense in this case is no different than the typical possession charge

except that the firearm is defaced. Stanley, 397 Ill. App. 3d at 607-09 ("section 24-5(b) is

unmistakably a possessory offense," but while the defacement "unmistakably bears upon the

commission of the offense, it is not an element of the offense"). Typical possessory offenses

similar to the one at issue here, like unlawful use of a weapon (720 ILCS 5/24-1 (West 2006)),

require the State to prove the knowing possession of a firearm and require the corresponding IPI

instructions informing the jury of the elements of the offense. For example, Illinois Pattern Jury

Instructions Criminal, No. 18.01 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 18.01),

provides the definition of the offense of unlawful use of a weapon under section 24-1 and states



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that, "[a] person commits the offense of unlawful use of weapons when he knowingly possesses

a firearm in a vehicle except when on his land, in his abode, or in his fixed place of business."

There is no IPI instruction for a section 24-5(b) offense, so either a modified instruction

containing the elements of the offense, including knowledge, was required or IPI Criminal 4th

No. 18.01, modified to reflect the firearm being altered or defaced, was required. An

instruction, modified to reflect the character of the firearm (i.e., defaced), would have properly

informed the jury of the elements required to be proven beyond a reasonable doubt a violation of

section 24-5(b) and should have been given. Therefore, we find that trial counsel was ineffective

for failing to request an instruction which would have properly informed the jury that defendant

must knowingly possess the firearm with defaced identification marks to be found guilty of that

offense. We next turn to the question of whether defendant was prejudiced as a result of

counsel's failure.

¶ 22    Although the offense of possession of a defaced weapon is not a strict liability offense, a

jury could have, without being properly instructed on the correct mental state, concluded the

offense was a strict liability offense. There is no likelihood a jury, without proper instruction,

would reach the conclusion of the Stanley court that knowledge is the appropriate mental state

for the offense of possession of a defaced firearm and that knowledge only applies to the

possession element and not to the defendant's knowledge of the defacement. The prior version

of section 24-5(b) provided that possession of a firearm on which the identification number has

been changed "shall be prima facie evidence that the possessor has changed *** the same." 720

ILCS 5/24-5(b) (West 2002). The prior version did not make possession in and of itself an

offense, presumably because criminal possession was encompassed within section 24-1. That



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prior version of section 24-5(b) was found unconstitutional in People v. Quinones, 362 Ill. App.

3d 385 (2005), because it contained an impermissible mandatory rebuttable presumption. The

statute was then amended by Public Act 93-906 (Pub. Act 93-906, § 5 (eff. Aug. 11, 2004)) to its

current version. However, the current version has been criticized: "Public Act 93-906 converted

an offense containing an unconstitutional mandatory presumption into a strict liability offense

***. Instead of requiring the state to either prove the defendant's guilty mind through evidence

or through the use of a constitutionally permissible inference based on the conduct of the

accused, that element was simply discarded." Theodore A. Gottfried and Peter G. Baroni,

Presumptions, Inferences and Strict Liability in Illinois Criminal Law: Pre-empting the

Presumption of Innocence?, 41 J. Marshall L. Rev. 715, 739-40 (2008). This historical

background and critical commentary indicates that, although this court has determined that

knowledge is the appropriate mental state, the statute reads like a strict liability offense and a

jury would not know otherwise without being so instructed. The non-IPI instruction on

possession of a defaced firearm given in this case failed to inform the jury of the elements of this

possessory offense, specifically the applicable mental state of knowingly. Furthermore, even if

the jury were to glean that "knowledge" is an implied element of the offense of possession of a

defaced firearm, it is likely there would be a question as to what component of the offense the

element of knowledge applied: the possession or the defacement or both. This is especially true

in this case, where defendant's knowledge of the firearm in the trunk was clearly an issue critical

to the charge of possession of a defaced firearm given defendant's denial of its presence and his

denial of making any incriminating statements to the police officers.




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¶ 23   We conclude that defendant was prejudiced by counsel's failure to request an instruction

the correctly set forth the required elements of the offense. In order for the jury to determine

whether defendant knowingly possessed the defaced firearm, the jury was required to be

properly instructed. People v. Childs, 159 Ill. 2d 217, 228-29 (1994) (failing to respond to

question asked by jury, or responding in a way that fails to answer the question, may be as

prejudicial as a response that is inaccurate, misleading, or likely to direct a verdict one way or

another).

¶ 24   In so finding, we reject the State's argument that because the trial court instructed the jury

on the elements of the offense of possession of a firearm by repeating the statutory language

defining the offense contained in section 24-5(b) and also instructed the jury that possession may

be actual or constructive, the court "articulated the knowledge requirement of constructive

possession when it provided the pattern instruction on possession." The State contends, "[t]he

trial court's use of the pattern instruction for possession, combined with the language of the

statute to create a non-pattern instruction on the offense of possession of a firearm with defaced

identification marks, rendered the instructions proper in their entirety and unquestionably

communicated to the jury the requirement that the defendant's possession of the defaced firearm

had to be knowing." The State's circuitous argument does nothing to dissuade us. The non-IPI

possession of a defaced firearm instruction given to the jury did not include the word

"knowledge," nor did it define the word "knowledge" at all. Furthermore, as we have previously

discussed, absent proper instruction, the jury would have no way of knowing that it was required

to find that defendant knowingly possessed the firearm. Consequently, we find that counsel was

ineffective for failing to request an instruction that properly instructed the jury of the elements of



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No. 1-11-1797


knowing possession of a defaced firearm and remand for a new trial. Because this issue is

dispositive, we need not address defendant's plain error arguments.

¶ 25   We must consider, however, whether double jeopardy attaches. Double jeopardy does

not preclude retrial of a defendant whose conviction is supported by sufficient evidence but set

aside because of errors in process. People v. Olivera, 164 Ill. 2d 382, 393 (1995). We note that

defendant waived review of the sufficiency of the evidence against him by failing to argue the

issue in his brief. Meyers v. Kissner, 149 Ill.2 d 1, 8 (1992) (issues not argued are deemed

waived). Waiver aside, we conclude that the evidence here is sufficient to support a conviction

for possession of a defaced firearm. We make no evidentiary findings that are binding on retrial.

¶ 26                                      CONCLUSION

¶ 27   Based on the foregoing, the matter is reversed and remanded for a new trial.

¶ 28   Reversed and remanded.




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