                                   2017 IL App (1st) 172120

                                         No. 1-17-2120

                                Opinion filed December 28, 2017


                                                                         FOURTH DIVISION

                                               IN THE


                              APPELLATE COURT OF ILLINOIS


                                         FIRST DISTRICT



     In re GABRIEL W.,                              )       Appeal from the Circuit Court
     a minor,                                       )       of Cook County.
                                                    )
     (The People of the State of Illinois,          )
                                                    )
           Plaintiff-Appellee,                      )       No. 16 JD 02525
                                                    )
           v.                                       )       The Honorable
                                                    )       Patricia Mendoza,
     Gabriel W.,                                    )       Judge, presiding.
                                                    )
           Defendant-Appellant.)                    )


            JUSTICE GORDON delivered the judgment of the court, with opinion.
            Presiding Justice Burke and Justice Ellis concurred in the judgment and opinion.



                                            OPINION

¶1              After being arrested in possession of one firearm, the minor defendant,

        Gabriel, age 15, was charged by the State on November 11, 2016, in a three-

        count petition for wardship, which alleged two counts of aggravated unlawful

        use of a weapon (AUUW) and one count of unlawful possession of a firearm
     No. 1-17-2120


        (UPF). The two AUUW counts alleged: that he lacked a Firearm Owner's

        Identification (FOID) card (count I); and that he was under age 21 (count II).

        The UPF count alleged that he was under age 18 (count III). After a bench trial,

        the trial court found defendant guilty of all three counts, but merged counts II

        and III into count I, the FOID-card count. 1 The court adjudged defendant to be

        a ward of the court and sentenced him to 18 months of probation, as well as to a

        30-day commitment to the Illinois Department of Juvenile Justice which was

        stayed so long as defendant did not violate any of his probation terms.

¶2              On this appeal, defendant claims: (1) that his adjudication for AUUW

        based on the lack of a FOID card must be vacated because the State failed to

        prove he lacked a FOID card; and (2) that his adjudications for AUUW and

        UPF based on his age must be vacated because the State failed to prove his

        age.2

¶3              The State concedes that, while its evidence established that defendant did

        not present a FOID card to the arresting officers, the State failed to offer any

        evidence that defendant actually lacked a FOID card. This court has previously
           1
              The State's appellate brief states that the trial court merged counts III and I
     into count II, and the brief cites in support the mittimus. But this is not what the
     mittimus or the trial court stated. The trial court stated "there will be a finding of
     guilty on all counts, although, obviously, the other counts will merge into the first
     count."
            2
              Defendant does not argue on appeal that the court lacked juvenile
     jurisdiction because he was, in fact, not a juvenile. Rather defendant argues that the
     State failed to present sufficient evidence during his bench trial to prove his age.
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     No. 1-17-2120


       held that the simple absence of the presentation of a FOID card is insufficient to

       prove that a defendant actually lacked a FOID card. In re Manuel M., 2017 IL

       App (1st) 162381, ¶ 15. Thus, we vacate the finding of guilt on this count.

¶4           With respect to the other two counts, defendant argues that the State

       failed to prove his age at the bench trial, although defendant (1) stated his birth

       date at the arraignment and stipulated to juvenile jurisdiction in this case; (2)

       testified at the pretrial suppression hearing that he was 15 years old; and (3) did

       not object at the bench trial when the arresting officer testified that defendant

       was 15 years old. Our supreme court has previously held that, in a juvenile

       adjudication, a trial judge in a bench trial does not have to disregard testimony

       about age that occurred during another proceeding in the same case. E.g., In re

       Brown, 71 Ill. 2d 151, 155 (1978) (rejecting "[t]he contention that because the

       proof of age occurred in a different stage of the proceedings" the trial court

       cannot consider it); In re Ephriam, 60 Ill. App. 3d 848, 854-55 (1978). Thus,

       we do not find this argument persuasive.

¶5           The parties agree that, if we affirm the findings of guilt on the two age-

       based counts, we must vacate the less serious offense under the one act, one

       crime rule. Thus, for the reasons explained in more detail below, we vacate the

       finding of guilt on count I, which was based on the lack of a FOID card; we




                                              3

     No. 1-17-2120

       affirm the findings of guilt on counts II and III, the two age-based counts; but

       we vacate count III, the UPF count, under the one act, one crime rule.

¶6           Finally, defendant does not ask us to remand for resentencing. Since the

       three counts were all based on the possession of the same handgun at the same

       moment in time, and since his sentence was and still is based on an AUUW

       count, and since defendant does not seek a remand for resentencing, we do not

       order it. He asks us only to correct his sentencing order to reflect that he has

       251 days of credit for time served against his 30-day stayed commitment, and

       the State joins in this request. Thus, we affirm his adjudication for wardship and

       sentence, with the adjudication based on AUUW grounded on age (count II)

       rather than lack of a FOID card (count I), but we correct his sentencing order to

       reflect 251 days of credit for time served against his 30-day stayed

       commitment.

¶7                                  BACKGROUND

¶8           Although defendant challenges the sufficiency of the evidence he does so

       only on the limited questions of proof of (1) age and (2) lack of a FOID card.

       Thus, we describe the facts focusing on these two issues.

¶9           On November 10, 2016, defendant was arrested on a street corner in

       possession of one loaded handgun. Although he challenged the search before



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       No. 1-17-2120


         the trial court, he does not raise any issue on appeal concerning either the search

         or his possession of the handgun.

¶ 10             One day later, on November 11, 2016, the State charged him in a petition

         for adjudication of wardship alleging the three counts, already described above.

¶ 11             At the arraignment, which was also on November 11, 2016, defendant

         and his mother were present when his counsel stated that defendant

         "stipulate[d] to juvenile court jurisdiction."      The trial court then asked

         defendant:

                    "THE COURT: Is your date of birth *** 2001?

                    DEFENDANT: Yes."

         Defense counsel also stipulated to a finding of probable cause.

¶ 12             On December 6, 2016, defendant filed a motion to quash arrest and

         suppress evidence on the ground that the stop and search lacked reasonable

         suspicion and/or probable cause. As we observed, defendant does not renew

         this issue on appeal, so we discuss only the portions of the suppression hearing

         that relate to the issues before us, namely, defendant's age and lack of a FOID

         card.

¶ 13             At the suppression hearing on January 18, 2017, defendant testified under

         oath that he was 15 years old:



                                                5

       No. 1-17-2120


                     "ASSISTANT PUBLIC DEFENDER (APD):                How old are you,

                 Gabriel?

                 DEFENDANT: Fifteen."

         After the trial court denied defendant's motion to suppress, the parties

         proceeded, without a break and on the same day, to the bench trial. The bench

         trial was held before the same trial judge who had just heard the suppression

         motion.

¶ 14             With respect to a FOID card, Officer Ghiloni,3 one of the arresting

         officers testified as follows:

                     "ASSISTANT STATE'S ATTORNEY (ASA): Did the minor present

                 a FOID card to you at any time?

                     OFFICER GHILONI: No."

¶ 15             Officer Ghiloni's partner, Officer Olson,4 testified about what occurred

         after the minor was arrested and transported to the police station. With respect

         to defendant's age, he testified as follows:

                     "ASA: *** [W]hat did you do when you got to the police station?

                     OFFICER OLSON: I got the minor's name, date of birth, mother's

                 information—or parent's information, address.


            3
                Officer Ghiloni did not testify to his first name.

            4
                Officer Olson did not testify to his first name.

                                                   6
No. 1-17-2120


           ASA: And was this minor under the age of 18?

           OFFICER OLSON: Yes.

           ASA: And just to be clear, the minor that you were processing at the

        station was the Minor Respondent, Gabriel [W.], in this case; true?

           OFFICER OLSON: Yes.

           ASA: And you testified that he was under the age of 18?

           OFFICER OLSON: That's correct.

        ***

           ASA: Now, you testified that the minor was under the age of 18, but

        do you recall how old the minor was?

           OFFICER OLSON: Specifically, no. I don't remember.

           ASA:      Okay.   Is there anything that would—is your memory

        exhausted?

           OFFICER OLSON: Yes.

           ASA: And is there anything that would refresh your memory as to the

        question I asked you?

           OFFICER OLSON: If I saw a copy of the case report, the arrest

        report that was generated.

        ***


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       No. 1-17-2120


                  ASA: I'm giving to the witness what I've marked as People's Exhibit

               No. 1.    Can you please look at that and once your recollection is

               refreshed , please look up. (Short pause.)

                  ASA: And may I have it back. Thank you. Is your recollection

               refreshed?

                  OFFICER OLSON: Yes.

               ASA: And do you recall how old this Minor Respondent was?

                  OFFICER OLSON: Fifteen years old."

         During this prolonged discussion concerning defendant's age, the defense did

         not object once. The ASA also asked Officer Olson if defendant had presented

         the officers "at any time" with a FOID card. Officer Olson answered "[n]o."

¶ 16           When the State rested, defendant moved for a directed finding on the sole

         ground that the State had failed to introduce the inventory report concerning the

         gun or any testimony about the inventorying of the gun or its chain of custody.

         After the trial court denied defendant's motion, the parties proceeded to closing

         argument. The State asked the trial court to adopt, as its closing argument, its

         argument concerning defendant's motion for a directed finding, but it reserved

         rebuttal argument. The defense, similarly, asked the trial court to adopt its

         argument concerning the motion as its closing argument. In rebuttal, which the



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       No. 1-17-2120


         State had reserved, it argued, among other things, that "we've heard testimony

         that he was under the age of 18" and "[t]hat he did not have a FOID card."

¶ 17           After hearing the evidence at trial and the arguments of counsel, the trial

         court found:    "there will be a finding of guilty on all counts, although,

         obviously, the other counts will merge into the first count."

¶ 18           On February 16, 2017, defendant filed a motion to reconsider the trial

         court's denial of his motion to quash arrest and suppress evidence. As noted,

         this issue is not raised on appeal. The trial court heard further argument and

         testimony from Officer Ghiloni on this issue and again denied the motion and

         then, pursuant to defendant's request, proceeded to schedule a sentencing

         hearing.

¶ 19           On July 19, 2017, at the sentencing hearing, defense counsel stated that

         defendant was 16 years old.       After listening to factors in mitigation and

         aggravation, the trial court adjudged defendant to be a ward of the court and

         sentenced him to 18 months of probation, as well as to a 30-day commitment to

         the Illinois Department of Juvenile Justice which was stayed so long as

         defendant did not violate any of his probation terms. Defendant filed a notice

         of appeal on August 18, 2017, and this appeal followed.




                                                9

       No. 1-17-2120


¶ 20                                     ANALYSIS

¶ 21            On this appeal, defendant claims: (1) that his adjudication for AUUW

         based on the lack of a FOID card must be vacated because the State failed to

         present sufficient evidence at his bench trial that he lacked a FOID card; and (2)

         that his adjudications for AUUW and UPF based on his age must be vacated

         because the State failed to present sufficient evidence at his bench trial of his

         age.

¶ 22            For the following reasons, we vacate the finding of guilt on count I,

         which was based on the lack of a FOID card; we affirm the findings of guilt on

         counts II and III, the two age-based counts; but we vacate count III, the UPF

         count, under the one act, one crime rule. Since the three counts were all based

         on the possession of the same handgun at the same moment in time, and

         defendant does not ask us to remand for resentencing, we do not order a

         resentencing. He asks us only to correct his sentencing order to reflect that he

         has 251 days of credit against his 30-day stayed commitment, and the State

         joins in this request. Thus we affirm his adjudication for wardship and sentence,

         with the adjudication based on AUUW grounded on age (count II) rather than

         lack of a FOID card (count I), but correct his sentencing order to reflect 251

         days of credit against his 30-day stayed commitment.




                                               10 

       No. 1-17-2120


¶ 23                   I. Three Phases of Juvenile Delinquency Proceedings

¶ 24               Before discussing defendant's claims, we set forth the three phases of

         juvenile delinquency proceedings specified in the Juvenile Court Act of 1987

         (Act) (705 ILCS 405/5-101 et seq. (West 2016)): "the findings phase, the

         adjudicatory phase, and the dispositional phase." In re Sammantha V., 234 Ill.

         2d 359, 365 (2009). "The findings phase consists of a trial and determination of

         guilt."     In re Sammantha V., 234 Ill. 2d at 365. "During this phase, the trial

         court applies the reasonable doubt standard of proof and the rules of evidence

         that would be followed in a criminal case to determine whether the minor

         should be found delinquent." In re Sammantha V., 234 Ill. 2d at 365. "In a

         juvenile delinquency case, a finding of guilt and a finding of delinquency are

         one and the same." In re Veronica C., 239 Ill. 2d 134, 145 (2010).

¶ 25               "If a delinquency finding is entered, the matter proceeds to sentencing."

         In re Sammantha V., 234 Ill. 2d at 365. "The sentencing proceeding includes

         the adjudication phase, when the court determines whether it is in the best

         interests of the minor and the public to make the minor a ward of the court." In

         re Sammantha V., 234 Ill. 2d at 365. If the minor is made a ward of the court,

         the matter proceeds to the dispositional phase where the court fashions an

         appropriate sentence that will best serve the minor and the public." In re

         Sammantha V., 234 Ill. 2d at 365.

                                                 11 

       No. 1-17-2120

¶ 26           In the case at bar, the same trial judge conducted all three phases and

         entered all three findings: a finding of guilt or delinquency; a finding that

         defendant should be made a ward of the court; and a finding of an appropriate

         sentence. The same trial judge also heard defendant's motion to suppress and

         conducted the pretrial suppression hearing.

¶ 27                            II. Sufficiency of the Evidence

¶ 28           No person, adult or juvenile, may be convicted or adjudicated guilty of a

         crime " 'except upon proof beyond a reasonable doubt of every fact necessary to

         constitute the crime with which he is charged.' " In re Omar F., 2017 IL App

         (1st) 171073, ¶ 36 (quoting In re Winship, 397 U.S. 358, 364 (1970)). See also

         In re Winship, 397 U.S. at 368 ("The constitutional safeguard of proof beyond a

         reasonable doubt applies during the adjudicatory stage of juvenile delinquency

         proceedings."). When a minor defendant challenges the sufficiency of the

         evidence in his or her adjudication, the standard of review is whether, after

         viewing the evidence in the light most favorable to the State, any rational trier

         of fact could have found the essential elements of the charge beyond a

         reasonable doubt. In re Omar F., 2017 IL App (1st) 171073, ¶ 36; In re Q.P.,

         2015 IL 118569, ¶ 24 ("in delinquency proceedings, as in criminal cases, a

         reviewing court must decide ' " whether [after] viewing the evidence in the light

         most favorable to the prosecution, any rational trier of fact could have found the

                                               12
        No. 1-17-2120


          essential elements of the crime beyond a reasonable doubt " ')) (quoting People

          v. Austin M., 2012 IL 111194, ¶ 107 (quoting In re Jonathan C.B., 2011 IL

          107750, ¶ 47))); Jackson v. Virginia, 443 U.S. 307, 313 (1979) ("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" (emphasis in original)).

¶ 29            When reviewing an adjudication on appeal, a reviewing court may not

          substitute its judgment for that of the trier of fact, particularly on issues of

          witness credibility, the weight their testimony deserves or the reasonable

          inferences that may be drawn from their testimony or other evidence. This is

          because it was the trial court that observed and heard the witnesses. In re

          Jonathan C.B., 2011 IL 107750, ¶ 60.

¶ 30	           In addition, "[a] trier of fact is not required to disregard inferences which

          flow normally from the evidence before it."         In re Jonathan C.B., 2011 IL

          107750, ¶ 60. The trier of fact also "need not be satisfied beyond a reasonable

          doubt as to each link in the chain of circumstances." In re Jonathan C.B., 2011

          IL 107750, ¶ 60. Rather, the evidence is sufficient, if all the evidence taken

          together, satisfies the trier of fact beyond a reasonable doubt of the minor's

          guilt. In re Jonathan C.B., 2011 IL 107750, ¶ 60.




                                                13 

       No. 1-17-2120


¶ 31             When determining the correctness of a trial court's findings in a juvenile

         case, a reviewing court may affirm on any basis found in the record. See In re

         Veronica C., 239 Ill. 2d at 151.

¶ 32                                   III. Statutes at Issue

¶ 33             Defendant was charged under the following statutes. Counts I and II

         charged defendant with violating the AUUW statute which provides in relevant

         part:

                    "(a) A person commits the offense of aggravated unlawful use of a

                 weapon when he or she knowingly:

                                               ***

                    (2) Carries or possesses on or about his or her person, upon any public

                 street, alley, or other public lands within the corporate limits of a city,

                 village or incorporated town, except when an invitee thereon or therein,

                 for the purpose of the display of such weapon or the lawful commerce in

                 weapons, or except when on his or her own land or in his or her own

                 abode, legal dwelling, or fixed place of business, or on the land or in the

                 legal dwelling of another person as an invitee with that person's

                 permission, any pistol, revolver, stun gun or taser or other firearm; and

                    (3) One of the following factors is present:

                                               ***

                                                 14 

        No. 1-17-2120


                     (C) the person possessing the firearm has not been issued a currently

                  valid [FOID] card; or


                                                ***


                     (I) the person possessing the weapon was under 21 years of age and in

                  possession of a handgun, unless the person under 21 is engaged in lawful

                  activities under the Wildlife Code or described in subsection 24-2(b)(1),

                  (b)(3), or 24-2(f)."5 720 ILCS 5/24-1.6(a) (West 2016).

¶ 34	             Count III charged defendant with violating the UPF statute which

           provides in relevant part:

                     "(a) A person commits the offense of unlawful possession of firearms

                  or firearm ammunition when:

                     (1) He is under 18 years of age and has in his possession any firearm

                  of a size which may be concealed upon the person[.]" 720 ILCS 5/24­

                  3.1(a)(1) (West 2016).

¶ 35	             As noted, the only elements of these offenses that defendant challenges

           on appeal are the lack of a FOID card and his age.




              5
                Subsections 24-2(b)(1) and 24-2(f) concern practice shooting at target
        ranges; and subsection 24-2(b)(3) concerns hunting, trapping and fishing. 720
        ILCS 5/24-2(b)(1), (b)(3), (f) (West 2016).
                                                 15 

       No. 1-17-2120


¶ 36                                    IV. FOID Card

¶ 37            Defendant argues, and the State agrees, that his adjudication for AUUW

         based on the lack of a FOID card must be vacated because the State failed to

         prove he lacked a FOID card.

¶ 38            The State concedes that, although it introduced evidence showing that

         defendant did not present a FOID card to the arresting officers, it failed to offer

         any evidence that defendant actually lacked a FOID card.

¶ 39            Faced with almost the same facts, this court observed in another case

         earlier this year:

                "On appeal, [the defendant] first argues, and the State concedes, that he

                was not proved delinquent beyond a reasonable doubt of AUUW

                predicated on not having been issued a valid FOID card and not whether

                the individual has a FOID card 'in his or her possession.' People v.

                Holmes, 241 Ill. 2d 509, 522 (2011). Here, [the officer's] testimony

                indicated that [the defendant] did not present a FOID card following his

                arrest, but the State presented no evidence that [the defendant] had not

                been issued a FOID card. Consequently, we agree with [the defendant],

                accept the State's concession, and reverse [the defendant's] delinquency

                adjudication and sentence for AUUW predicated on not having been



                                               16 

       No. 1-17-2120


               issued a valid FOID card." In re Manuel M., 2017 IL App (1st) 162381,

               ¶ 15.

¶ 40           Thus, we vacate the finding of guilt on count I, which was the only count

         based on the lack of a FOID card.

¶ 41                                 V. Age-Based Counts

¶ 42           Defendant also argues that his adjudications for AUUW and UPF based

         on his age must be vacated because the State failed to prove his age. Defendant

         argues that the State failed to present sufficient evidence of his age at his bench

         trial, although defendant testified under oath at a suppression hearing in the

         same case and before the same trial judge that he was only 15 years old.

¶ 43           Our Illinois Supreme Court ruled on this same exact issue 40 years ago in

         Brown and nothing suggests that the law changed in the intervening years. In re

         Brown, 71 Ill. 2d at 155.

¶ 44           In Brown, as in our case, "a hearing was held on [the defendant's] motion

         to suppress evidence due to the alleged illegality of his arrest." Brown, 71 Ill.

         2d at 153. In Brown, as in our case, the juvenile defendant testified at the

         pretrial suppression hearing that he was, in fact, 15 years old. Brown, 71 Ill. 2d

         at 153. In Brown, as in our case, after denying the suppression motion, the same

         trial judge immediately proceeded with the bench trial. Brown, 71 Ill. 2d at 153.



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       No. 1-17-2120


         In Brown, as in our case, the defendant argued that there was insufficient proof

         of his age. Brown, 71 Ill. 2d at 155.

¶ 45           Our supreme court stated: "We disagree as to the insufficiency of the

         proof." Brown, 71 Ill. 2d at 155. It explained: "The contention that because

         the proof of age occurred at a different stage of the proceedings only minutes or

         at most an hour or two earlier, the judge who heard the testimony cannot

         consider it in deciding the case is, in our opinion, without merit. Clearly, a

         court may and should take judicial notice of other proceedings in the same case

         which is before it and the facts established therein." Brown, 71 Ill. 2d at 155.

         See also In re Ephriam, 60 Ill. App. 3d at 854-55 (discussing and applying

         Brown).

¶ 46           The case at bar is even stronger than Brown because in Brown the State

         presented no evidence of age during the bench trial (Brown, 71 Ill. 2d at 153­

         54), whereas in our case the State called an officer who testified that he

         obtained defendant's age while processing the arrest at the police station and

         defendant's age was 15 years old.

¶ 47           More recently, in 2015, the appellate court acknowledged the continued

         vitality of Brown but distinguished it on the ground that Brown involved sworn

         testimony, while the case before it did not. In re S.M., 2015 IL App (3d)



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       No. 1-17-2120


         140687, ¶¶ 15-16. Similar to Brown, our case involves defendant's sworn

         testimony.

¶ 48           In addition, defendant stipulated to juvenile jurisdiction and stated his

         age at his arraignment. Article V of the Act provides, in relevant part, that

         "[p]roceedings may be instituted under the provisions of this Article concerning

         any minor who prior to his or her 18th birthday has violated or attempted to

         violate any *** law or ordinance." 705 ILCS 405/5-120 (West 2016). Thus, by

         stipulating to juvenile jurisdiction, defendant was stipulating to the fact that he

         was under 18 years old on the day of the alleged offense. See also In re

         Ephriam, 60 Ill. App. 3d at 853-55 (rejecting the argument that the State failed

         to prove a juvenile defendant's age, where the trial court had asked his age at his

         arraignment and the defendant answered that he was 15); In re S.M., 2015 IL

         App (3d) 140687, ¶ 28 (discussing the continuing vitality of In re Ephriam).

¶ 49           While "procedural silence with respect to the allegations contained in a

         charging instrument *** cannot be construed as a judicial admission," a

         stipulation is the opposite of procedural silence. In re S.M., 2015 IL App (3d)

         140687, ¶ 21. " ' A criminal defendant may waive, by stipulation, the need to

         prove all or part of the case that the State has brought against him.' ' People v.

         Toliver, 2016 IL App (1st) 141064, ¶ 31 (quoting People v. Washington, 343 Ill.

         App. 3d 889, 900 (2003)). By conceding the issue of juvenile status, or age,

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       No. 1-17-2120


         "counsel demonstrated the intent of the defense to eliminate that issue from the

         case and focus on other aspects of the defense." Toliver, 2016 IL App (1st)

         141064, ¶ 31. In short, by stipulating to defendant's status as a juvenile, defense

         counsel removed that issue from this case.

¶ 50           The reasons for forfeiture are particularly compelling in a juvenile case,

         where the juvenile defendant stipulates to his juvenile status in order to gain the

         benefits of the Act and then, on appeal, argues for reversal because the State

         failed to introduce evidence of that juvenile status at his bench trial—while still

         conceding that juvenile jurisdiction applies.     "A party forfeits her right to

         complain of an error where to do so is inconsistent with the position taken by

         the party in an earlier court proceeding." In re E.S., 324 Ill. App. 3d 661, 670

         (2001) (citing McMath v. Katholi, 191 Ill. 2d 251, 254 (2000)).

¶ 51           Last but certainly not least, the appellate court has found that a police

         officer's testimony at a bench trial may suffice to establish a juvenile

         defendant's age. In S.M., the appellate court discussed different ways that the

         State could satisfy this burden, stating:

               "In other cases, a police officer testifies before the court about an

               offender's response to inquiries from law enforcement officers regarding

               his age. Such testimony from the officer is admissible and may satisfy the

               State's burden of proof on the issue of the accused's age. See People v.

                                                20 

       No. 1-17-2120


               Dalton, 91 Ill. 2d 22, 30 (1982)." (Emphasis in original.) In re S.M.,

               2015 IL App (3d) 140687, ¶ 16.

¶ 52           In S.M., the appellate court reversed because the State failed to present

         sufficient evidence of age at a bench trial in a juvenile case. However, the S.M.

         case differs from the case at bar, in that (1) in S.M. the appellate court observed

         that at the bench trial "neither officer testified concerning the respondent's age

         at the time of the occurrence," whereas in our case one of the officers did testify

         to the age obtained while processing the arrest (In re S.M., 2015 IL App (3d)

         140687, ¶¶ 5, 16); (2) in S.M. there is no indication that the defendant testified

         under oath about his age at a pretrial suppression hearing, whereas in our case

         he did; (3) in S.M. the defendant objected both at the bench trial and in a timely

         posttrial motion that the State had failed to present any evidence of age at the

         bench trial, whereas in our case defendant did not object either at the bench trial

         or in a postrial motion to the officer's testimony about defendant's age (In re

         S.M., 2015 IL App (3d) 140687, ¶¶ 5, 8); and (4) lastly, in S.M. there is no

         indication that defendant stipulated to juvenile jurisdiction, whereas in our case

         he did. (In re S.M., 2015 IL App (3d) 140687, ¶ 4). In other words, all the

         considerations that drove the S.M. court to find insufficient evidence in the case

         before it are actually reasons to find sufficient evidence in the case before us.




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       No. 1-17-2120


¶ 53           Thus, we do not find persuasive defendant's arguments to reverse the

         findings of guilt on his age-based counts.

¶ 54                            VI. One Act, One Crime Rule

¶ 55           Both the State and defendant agree that, if we affirm the trial court's

         findings of guilt on the two age-based counts, we must vacate the less serious

         offense under the one act, one crime rule.

¶ 56           Our supreme court has stated unequivocally: "we hold that the one-act,

         one-crime rule applies to juvenile proceedings. To the extent that decisions of

         the appellate court hold otherwise, they are overruled." In re Sammantha V.,

         234 Ill. 2d at 375. The Sammantha V. court found "that the trial court violated

         the one-act, one-crime rule," when the trial court found the juvenile defendant

         guilty of two counts of aggravated battery that were based on the same battery

         and then "failed to merge the counts or otherwise indicate on the record that

         [the defendant's] adjudication of delinquency was based on only one count." In

         re Sammantha V., 234 Ill. 2d at 375.

¶ 57           Thus, although we affirm the trial court's findings of guilt on counts II

         and III, the two age-based counts, we vacate count III, the UPF count, under the




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       No. 1-17-2120

         one act, one crime rule.

¶ 58                                   CONLCUSION

¶ 59           For the foregoing reasons, we vacate the finding of guilt on count I,

         which was based on the lack of a FOID card; we affirm the findings of guilt on

         counts II and III, the two age-based counts; but we vacate count III, the UPF

         count, under the one act, one crime rule. Since the three counts were all based

         on the possession of the same handgun at the same moment in time, and

         defendant does not ask us to remand for resentencing, we do not order a

         resentencing. He asks us only to correct his sentencing order to reflect that he

         has 251 days of credit against his 30-day stayed commitment, and the State

         joins in this request. Thus we affirm his adjudication for wardship and sentence,

         with the adjudication based on AUUW grounded on age (count II) rather than

         lack of a FOID card (count I), but correct his sentencing order to reflect 251

         days of credit for time served against his 30-day stayed commitment.

¶ 60           Affirmed in part; vacated in part. Sentencing order modified.




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