                                  Illinois Official Reports

                                          Appellate Court



                             People v. Cowart, 2015 IL App (1st) 113085



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
Caption                      v. CHARLES COWART, Defendant-Appellant.



District & No.               First District, First Division
                             Docket No. 1-11-3085



Filed                        February 9, 2015



Held                         On appeal from defendant’s convictions for first-degree murder under
(Note: This syllabus         a theory of accountability and being an armed habitual criminal, the
constitutes no part of the   appellate court reversed the murder conviction on the grounds that the
opinion of the court but     State failed to establish beyond reasonable doubt that there was a
has been prepared by the     common criminal design between defendant and the armed partygoers
Reporter of Decisions        who participated in the shooting melee that resulted in the victim’s
for the convenience of       death, and with respect to defendant’s conviction for being an armed
the reader.)                 habitual criminal, defendant’s 2002 conviction for aggravated
                             unlawful use of a weapon was held unconstitutional in violation of the
                             second amendment right to bear arms and the State could not rely on
                             this now-void conviction to serve as a predicate offense for being an
                             armed habitual criminal.



Decision Under               Appeal from the Circuit Court of Cook County, No. 09-CR-13763; the
Review                       Hon. Thaddeus L. Wilson, Judge, presiding.



Judgment                     Reversed.
     Counsel on                  Michael J. Pelletier, Alan D. Goldberg, and Christopher L. Gehrke, all
     Appeal                      of State Appellate Defender’s Office, of Chicago, for appellant.

                                 Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                                 Miles J. Keleher, Assistant State’s Attorneys, of counsel), for the
                                 People.



     Panel                       JUSTICE CUNNINGHAM delivered the judgment of the court, with
                                 opinion.
                                 Presiding Justice Delort and Justice Connors concurred in the
                                 judgment and opinion.




                                                   OPINION

¶1          Following a jury trial in the circuit court of Cook County, defendant Charles Cowart was
       convicted of first-degree murder under a theory of accountability. Following a simultaneous
       bench trial outside the presence of the jury, the defendant was also convicted of being an armed
       habitual criminal. Subsequently, the trial court sentenced him to 51 years of imprisonment for
       first-degree murder and a concurrent 20-year sentence for the armed habitual criminal
       conviction. On direct appeal, the defendant argues that: (1) the State failed to establish beyond
       a reasonable doubt that he committed first-degree murder under a theory of accountability; (2)
       the State failed to prove beyond a reasonable doubt that he was an armed habitual criminal; and
       (3) the trial court erred in imposing a 20-year firearm enhancement sentence on his first-degree
       murder conviction. For the following reasons, we reverse the judgment of the circuit court of
       Cook County.

¶2                                           BACKGROUND
¶3         On June 21, 2009, in the late evening, victim Lee Floyd (Lee) was shot and killed at an
       outdoor party located at West Van Buren Street and South Keeler Avenue in Chicago, Illinois.
       On June 26, 2009, police officers arrested the defendant, who was subsequently charged with
       the first-degree murder of Lee, the offense of being an armed habitual criminal, and aggravated
       discharge of a firearm. The defendant asserted in his videotaped statement to the police that
       one of his friends, Keevo,1 accidentally shot Lee during the party. Prior to trial, on June 20,
       2011, the State decided to proceed with the first-degree murder and armed habitual criminal
       charges, but nol-prossed the remaining charges.
¶4         On June 21, 2011, a jury trial commenced. Tytianna Johnson (Tytianna) testified on behalf
       of the State that, at about 10:30 p.m. on June 21, 2009, she, Iesha Parker (Iesha), Keyana

             1
              The spelling of this individual’s name varies in the record as “Keevo” or “Kevo.”

                                                       -2-
     Williams (Keyana), and Elaina Riley (Elaina) attended a Father’s Day outdoor celebration in
     the area of West Van Buren Street and South Keeler Avenue in Chicago. Tytianna estimated
     that about 200 people attended the party, including Jasmine Benson (Jasmine) and the
     defendant, whose nickname was “LC.” Tytianna noticed a group of “boys standing around”
     with the defendant, including an individual nicknamed “Bird,” which she described as the “LC
     crew.” Tytianna noticed that the defendant had a gun tucked into his waistband, that he wore a
     white tee shirt bearing a photograph of someone, and that the “[m]ajority of the whole party”
     wore the same shirt. Although Tytianna testified at trial that she did not see Bird with a gun,
     she had previously informed the grand jury and an assistant State’s Attorney that Bird had a
     gun at the party. At some point, Jasmine and Ashley Dockery (Ashley) got into a verbal
     argument, while Tytianna and Ashley’s boyfriend, Tommy, stood nearby. About 7 to 10
     minutes later, “a whole crowd of boys” stood in front of Tytianna, Iesha, Keyana, and Elaina.
     The group of about 20 boys included the defendant, Bird, “Smooth,” and the victim, Lee.
     Elaina then made a statement, which caused the “whole party” to get “real rowdy” and to turn
     against the girls. Smooth then threw a drink in Iesha’s face and the defendant slapped Iesha.
     Elaina then hit the defendant, who then hit Elaina and she fell to the ground. The crowd then
     started “going crazy” and everyone was “swinging.” Ralph Benson (Ralph), who was the
     father of Tytianna’s children, then physically pulled Tytianna out of the fight. Moments later,
     Tytianna heard gunshots and observed “Pooh Bear” shooting a gun in the air. Tytianna and
     Ralph then hid under a parked truck on the corner of the street. During the incident, Tytianna
     heard a total of about 25 to 30 gunshots fired from four or five different guns and heard the
     boys yell, “[s]hoot them ho’s, [s]hoot them ho’s.” Several days later, on June 27, 2009,
     Tytianna cooperated with the police and identified photographs of the males she saw at the
     party, including Pooh Bear, Tommy, Bird, and she also identified the defendant in a physical
     lineup. On cross-examination, Tytianna was impeached with her grand jury testimony, which
     stated that “[m]ost of the males” she saw at the party had guns in their possession.
¶5       Iesha testified that at about 10 p.m. on June 21, 2009, she, Tytianna, Keyana, and Elaina
     attended an outdoor party in the playground of an elementary school at West Van Buren Street
     and South Keeler Avenue. Iesha estimated about 50 to 100 people in attendance, and
     partygoers stood on the sidewalks, yard, and streets. Iesha saw Tommy, Pooh Bear, Keevo,
     Melissa Meridy (Melissa), and Jasmine at the party. Jasmine engaged in an altercation with
     Ashley, after which Tommy walked to Jasmine and Melissa on the street corner, said
     something to them, and walked back toward the elementary school grounds. Elaina then said
     something to Pooh Bear, which caused “all the guys out there” to walk toward the girls who
     were on the street corner at West Van Buren Street and South Keeler Avenue at that time. Iesha
     knew that something was about to happen and started to leave when Smooth or Suavo threw a
     drink in her face. The defendant then struck Iesha in the face, after which Elaina and the
     defendant engaged in a physical altercation. Iesha described the scene as “[e]veryone just got
     fighting.” When gunshots rang out, Iesha fled southbound on South Keeler Avenue toward a
     bridge leading to Harrison Street. As she fled, she continued to hear about six or seven
     gunshots, looked back and saw Elaina fall down, and saw the defendant shooting over the
     bridge at them from the corner of the elementary school. After she reached Harrison Street,
     Iesha hid under a porch for about 20 minutes. On June 27, 2009, Detective Garcia came to
     Iesha’s home and brought her to the police station, where she identified photographs of Keevo,



                                                -3-
     Bird, Suavo, Tommy, and Pooh Bear. Iesha also identified the defendant in a physical lineup
     and in a statement to an assistant State’s Attorney as the person who had shot at her.
¶6       Peggy Allen (Peggy) testified that she lived in a first-floor apartment near the intersection
     of West Van Buren Street and South Keeler Avenue at 4158 West Congress Parkway. In the
     early morning of June 22, 2009, Peggy awoke to the sounds of gunshots close to her apartment.
     She looked out the window onto South Keeler Avenue and observed two girls running
     southbound toward West Congress Parkway and ducking between cars as a young man
     followed and shot at them. A group of people also followed behind the shooter as the shooter
     followed the girls. The gunman shot at the girls at least six times–three times before Peggy
     looked out the window and three times as she watched the incident unfold. After the shooting,
     Peggy discovered bullet holes in her windows, the dining room, and the kitchen. The next day,
     Peggy spoke with the police and showed them the damage to her home. Police officers
     recovered bullets and photographed the damage caused by the gunfire to her residence.
¶7       Melissa testified that at about 8 p.m. on June 21, 2009, she and Jasmine attended the
     barbecue party in an elementary school yard in the area of West Van Buren Street and South
     Keeler Avenue. The defendant, who wore a tee shirt with a picture on it, was at the party. At
     some point during the party, Melissa, who was standing in the middle of the street on West Van
     Buren Street, saw a fight on the corner of West Van Buren Street and South Keeler Avenue.
     Melissa observed Suavo hit Elaina. Tytianna’s boyfriend then picked Tytianna up off the
     ground at the corner of West Van Buren Street and South Keeler Avenue. As the fight broke
     out, Melissa telephoned a friend. After the telephone call, Melissa approached the corner
     where the fight was occurring and heard about nine gunshots. However, she did not see who
     was firing the shots. Melissa ducked behind cars as she fled and headed home. On June 28,
     2009, Melissa went to the police station and identified the defendant, Pooh Bear, Keevo,
     Tommy and Suavo in a photographic array as individuals who were present at the party.
     Melissa also informed the police that she had observed Pee Wee flashing a gun before the fight
     occurred at the party.
¶8       Roceaser Ivy (Roceaser) testified that he met the defendant in 2006 and that he came into
     contact with the defendant again in 2008. At trial, Roceaser initially denied that he was ever in
     the area of West Van Buren Street and South Keeler Avenue on the evening of June 21, 2009
     or the early morning hours of June 22, 2009. He denied witnessing the defendant’s
     involvement in a shooting at that location. Although Roceaser was impeached at trial with his
     prior statements to the police, the assistant State’s Attorney, and the grand jury, in which he
     said that he had observed the defendant shooting a gun on the night of the party, Roceaser
     testified at trial that he had lied to the authorities and the grand jury because the police had
     threatened to take his parole away.2
¶9       Assistant State’s Attorney George Canellis (ASA Canellis) testified that on July 2, 2009,
     he met with Roceaser, who informed ASA Canellis of the details of the shooting. ASA
     Canellis testified as to Roceaser’s testimony before the grand jury, which was published to the
     jury at trial: In his grand jury testimony, Roceaser testified that, after midnight on June 22,
     2009, he was walking down South Keeler Avenue near West Van Buren Street and was trying
     to buy marijuana. Roceaser estimated that there were about 300 to 400 people outside

        2
          At the time of trial, Roceaser was in federal custody on an unrelated drug charge and had
     previously been convicted of other felony offenses.

                                                 -4-
       “celebrating something.” As he walked on South Keeler Avenue toward West Van Buren
       Street, Roceaser saw the defendant fire a gun and saw “fire jump from his hand.” When the
       shooting began, Roceaser was walking on the east side of South Keeler Avenue and was two
       sidewalk “squares” from West Van Buren Street, while the defendant was standing diagonally
       across the street next to an elementary school on the southwest corner of the intersection. A
       crowd of people stood behind the defendant. Roceaser informed the grand jury that he had no
       difficulty observing the defendant at the time of the shooting because lighting from the school
       building shone on the defendant. The defendant was wearing a white tee shirt, blue jeans, white
       tennis shoes, and a white hat. Roceaser’s grand jury testimony stated that he heard no gunshots
       prior to the defendant’s firing the gun; that the defendant had extended his arm and was
       shooting at somebody rather than up in the air; and that Roceaser initially heard at least five or
       six shots and fled toward public transportation at West Van Buren Street and Pulaski Road.
       Roceaser could still hear gunshots as he fled, which became quieter as he got farther away. In
       his grand jury testimony, Roceaser also stated that he was treated fairly by the police; that the
       police did not make any threats or promises to him in exchange for his statement; and that ASA
       Canellis never made any promises to him regarding his parole status.
¶ 10       At the time of trial, the State called former Assistant State’s Attorney Jenni Scheck
       (Scheck) who testified that on July 1, 2009, she and Detective Garcia met with Roceaser and
       had a conversation with him about the details of the shooting, which was then memorialized in
       a typewritten statement. At some point during the conversation, Scheck questioned Roceaser
       alone in the police interview room, and Roceaser never indicated that either Detective Garcia
       or other police officers threatened to revoke his parole unless he agreed to speak with them.
       Scheck testified that Roceaser was given the opportunity to make changes and corrections to
       the statement and that he attested to the accuracy of the statement by signing the bottom of
       each page. During Scheck’s trial testimony, the typewritten statement was admitted into
       evidence and published before the jury. The typewritten statement of Roceaser stated that after
       midnight on June 22, 2009, he was looking to buy some marijuana in the area of South Keeler
       Avenue and West Van Buren Street. As Roceaser headed southbound on South Keeler Avenue
       near West Van Buren Street, he saw the defendant standing across the street near a school at
       the southwest corner of the intersection. The defendant, who was wearing white tennis shoes,
       blue jeans, a white tee shirt and baseball hat, stood under a light emanating from the school
       building. Roceaser stated that the defendant was “with some other people but seemed to be a
       step ahead of the group.” There were also “groups of 15 to 20 people and a bigger group behind
       the school.” Roceaser then observed the defendant with a gun in his hand and heard two
       gunshots. Roceaser saw “fire” come out of the defendant’s hand as he discharged his weapon
       “in the direction where other people [were] standing.” Roceaser stated that the defendant
       “definitely shot the gun towards people and not up into the air,” that he did not hear any
       gunshots before the defendant fired the gun, and that Roceaser then fled upon seeing the
       defendant shoot his gun. After he started running, Roceaser heard other gunshots, which grew
       fainter as he got farther away. Roceaser also stated in the typewritten statement that he was
       treated well by the detectives and Scheck; that he was given food by the police; that he was
       allowed to use the restroom whenever he needed to; that he was not handcuffed at any time at
       the police station; and that no threats or promises had been made to coerce him to make a
       statement; that he gave the statement freely and voluntarily; that he was allowed to make any



                                                   -5-
       changes or corrections to his statement; that he put his initials by the changes or corrections
       that were made; and that everything contained in the statement was true and accurate.
¶ 11       Officer Kevin Ebersole (Officer Ebersole) testified that at 12:30 a.m. on June 26, 2009,
       several days after the shooting, he and his partner, Officer Suing, were on routine patrol when
       they received a radio flash message of a vehicle and occupant who had been involved in an
       incident at Lake Street and Homan Avenue. About a minute later, as the officers headed
       southbound on Homan Avenue, Officer Ebersole spotted the vehicle matching the description
       in the flash message. Once the police stopped the vehicle, the front passenger exited the vehicle
       with a “nickel or chrome-plated” handgun in his hand and thereafter placed the gun into his
       waistband. At trial, Officer Ebersole identified the defendant as the individual he observed
       exiting the vehicle. Officer Ebersole testified that the defendant exited the vehicle and fled
       westbound on Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer
       Ebersole observed the defendant throw the handgun onto the roof of a garage near 512 North
       Trumbull Avenue. Moments later, Officer Ebersole apprehended the defendant. Other police
       officers then recovered the handgun from the roof of the garage where the defendant had tossed
       it.
¶ 12       Officer Nick Beckman (Officer Beckman) testified that on June 26, 2009, he arrived at the
       500 block of North Trumbull Avenue and spoke with police officers who were already at the
       location. He was directed by other officers to the roof of a garage at 512 North Trumbull
       Avenue, where he recovered a 9-millimeter semiautomatic handgun with a chrome finish. The
       handgun’s magazine was empty and Officer Beckman inventoried the weapon. Evidence was
       presented by the State at trial that subsequent testing of the handgun showed that it matched
       three cartridge cases that were recovered from the June 21, 2009 shooting crime scene near 407
       South Keeler Avenue.
¶ 13       Detective Gregory Jones (Detective Jones) testified that he investigated the shooting death
       of Lee. On June 26, 2009, Detective Jones interviewed Roceaser, who identified the defendant
       in a physical lineup as the person who had fired a handgun during the shooting melee on June
       21, 2009. On June 27, 2009, Detective Jones also interviewed Iesha, Tytianna, and Keyana.
       Tytianna identified the defendant in a physical lineup as a person she saw “involved in a fight
       just prior to the shooting and also a person she saw with a handgun in his waistband before the
       shooting.” Tytianna also identified Tommy and Pooh Bear in a photographic array. Iesha
       viewed the physical lineup separately and also identified the defendant as “the person who had
       punched her in her face with his fists and then fired multiple shots at her as she ran.” Iesha
       further identified Bird, Pooh Bear, Tommy, and Suavo in a photographic array. On June 28,
       2009, Detective Jones also interviewed Melissa, who identified Pee Wee, Suavo, Tommy,
       Keevo, Pooh Bear, Bird, Elaina, Iesha, Lee, Roceaser, Smooth, Fish, Lil One, Chris Rock
       (Rock), D-Mac, and the defendant in a photographic array. Melissa informed Detective Jones
       that she had seen Pee Wee with a gun prior to the fight and that Tommy had made threats to
       shoot anybody who “touches his girl.” On June 29, 2009, Detective Jones and his partner also
       interviewed Ashley, who identified Lee, Melo, Rock, Tommy, Keevo, Pooh Bear, Smooth,
       Pee Wee, and the defendant as being present at the party at the intersection of West Van Buren
       Street and South Keeler Avenue on June 22, 2009. However, Ashley was not present at the
       time of the shooting. On July 1, 2009, Detective Jones reinterviewed Roceaser. Detective
       Jones testified that Roceaser was not placed under arrest or in handcuffs; that no threats were
       made to him regarding his parole status; that an assistant State’s Attorney memorialized a


                                                   -6-
       statement made by Roceaser; and that Roceaser testified before the grand jury on July 2, 2009.
       Detective Jones testified that, in the course of his investigation, he had evidence that “there
       were multiple people shooting” at the street corner of West Van Buren Street and South Keeler
       Avenue. On July 6, 2009, Detective Jones conducted another physical lineup with Iesha and
       Tytianna, from which Iesha identified Tavaris Hightie (Tavaris) as “being at the scene with a
       gun” and Tytianna identified Tavaris as “one of the people actually shooting a gun.” During
       Detective Jones’ testimony at trial, the defendant’s videotaped statement to the police was
       published to the jury.
¶ 14        In his videotaped statement, the defendant stated that he helped organize the Father’s Day
       celebration for one of his “homies,” Boodro, who died eight years earlier. The defendant and
       many partygoers wore tee shirts with Boodro’s picture on the front. The party included food,
       drinks, a D.J., and a photographer, and was located in a schoolyard at West Van Buren Street
       and South Keeler Avenue. The party was going smoothly until some “females” started to get
       into a fight with each other, and Bird tried to resolve the dispute by telling a female individual
       to “get the [expletive] on.” The defendant described what unfolded next. The defendant stated
       that he slapped the female at the corner of West Van Buren Street and South Keeler Avenue
       because she was “talking crazy.” According to the defendant, the “baby daddy” of the woman
       he had slapped then “hit [the defendant’s] homie, Smooth.” The defendant did not know the
       identity of the “baby daddy.” The defendant stated that when the “baby daddy” hit Smooth, the
       defendant and all of his friends, including Smooth, Marvin, Lee (the victim), Keevo, and Big
       Greek surrounded the man. The defendant stated that when they had “baby daddy” surrounded
       in a circle, Keevo said, “watch out, I’m [fittin’] to kill this bitch.” The defendant then heard the
       first gunshot, and saw people move back. At that time, Keevo was facing West Van Buren
       Street and South Keeler Avenue, while the victim, Lee, had his back turned toward that
       intersection and was facing West Congress Parkway and South Keeler Avenue instead. When
       the second gunshot sounded, the defendant claimed that he saw Lee “roll over on the ground,”
       but the defendant did not know at the time that Lee had been shot. The defendant claimed that
       Keevo accidentally shot Lee when Keevo was trying to “get this bitch.” When a third gunshot
       sounded, the defendant heard “all the bullets *** going towards the bridge” near West
       Congress Parkway, in the direction where “two girls” were running as the shooting began.
       When asked who was shooting, the defendant answered, “Kevo shot first. [Pooh] Bear shot.
       Pee Wee shot. *** I had my gun out[,] Bird had his gun out.” However, the defendant denied
       that either he or Bird fired their weapons, but stated that “I had a nine. Bird had a nine.
       Basically it was a lot of nine’s out there it was a few .357 [revolvers].” The defendant noted
       that he had been shot on multiple occasions in the past and, thus, took his gun out once the
       shooting began. The defendant stated that “baby daddy” was able to escape by running away.
       He noted that “baby daddy” got away because, once gunshots were heard, “everyone out there
       wasn’t focused.” The defendant denied walking with the crowd that followed and shot at the
       girls who were running toward the bridge. Instead, he claimed that he, Bird, Smooth, and Pee
       Wee put Lee into Smooth’s car, and Smooth drove Lee to the hospital. The defendant claims
       that he ran to Gladys Avenue to get away from West Van Buren Street and South Keeler
       Avenue because the police were coming and he still had the gun in his possession. The
       defendant then gave the gun to someone named “Melva.” He did not find out that his “homie”
       Lee had died until the following morning. The defendant claimed that the handgun that the



                                                    -7-
       police recovered from his person several days after the shooting was a different firearm than
       the one he had in his possession during the shooting.
¶ 15       At trial, after the defendant’s videotaped statement was played for the jury, Detective Jones
       testified on cross-examination that, based on his interviews with the witnesses, Lee was
       standing on the street near the southwest corner of the intersection of West Van Buren Street
       and South Keeler Avenue when he was shot. Detective Jones estimated that, at the time Lee
       was shot, there were “several people” directly around him and “a couple hundred people” at
       the party, and there were several handguns that had been fired at the time Lee was shot. On
       redirect, Detective Jones testified that the police had not recovered any firearms other than the
       gun that was recovered from the defendant.
¶ 16       Evidence was presented at trial that the police found shell casings and blood at the crime
       scene. Evidence technicians located and recovered 26 shell casings, a fired bullet, and a bullet
       jacket from the crime scene, which led Tonia Brubaker (Brubaker), a forensic scientist, to
       conclude that at least 28 gunshots from six or seven different firearms had been fired at the
       scene–including two .38-caliber firearms; four 9-millimeter firearms; and one unknown
       firearm. Stephen Balcerzak (Balcerzak), an evidence technician, also testified that revolvers do
       not expel shell casings and, thus, would not leave such evidence behind.
¶ 17       The State, outside the presence of the jury, also introduced into evidence two certified
       copies of the defendant’s previous convictions: the first was a certified copy of a January 9,
       2007 felony conviction for possession of a controlled substance with intent to deliver, in
       violation of section 401(d)(i) of the Illinois Controlled Substances Act (Act) (720 ILCS
       570/401(d)(i) (West 2006)) (case No. 06 CR 2687101); the second was a certified copy of a
       February 1, 2002 felony conviction for aggravated unlawful use of a weapon, in violation of
       section 24-1.6(a)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.6(a)(1)
       (West 2002)) (case No. 01 CR 1233801).
¶ 18       By stipulation, the parties agreed that Dr. Tera Jones (Dr. Jones) performed the autopsy of
       Lee’s body. Dr. Jones observed a gunshot entrance wound on his right upper back and the exit
       wound on his right upper chest. The bullet traveled from “back to front slightly right to left and
       upward.” Examination of the skin around the entrance wound revealed no evidence of
       close-range firing, which typically occurs when the firearm is less than 18 inches from the
       victim. The parties stipulated that Dr. Jones would testify within a reasonable degree of
       medical and scientific certainty that the cause of death was due to a gunshot wound on Lee’s
       back and the manner of death was homicide.
¶ 19       After the State rested, three witnesses testified on behalf of the defendant. Antonio
       Williams (Antonio) is the defendant’s nephew and was about 14 years old at the time of the
       shooting. Rekia Williams (Rekia) is Antonio’s mother. Tiana Cowart (Tiana) is the
       defendant’s wife. Antonio, Rekia and Tiana testified that they saw the defendant fighting with
       some women when they heard the first gunshots at the Father’s Day party. Antonio testified
       that once the fight broke out, “everybody started fighting.” Antonio testified that, before the
       shots were fired, Lee was standing on the sidewalk by the entrance door of the elementary
       school, which was about 15 feet away from the corner of West Van Buren Street and South
       Keeler Avenue. Antonio did not see Lee get struck by a bullet, but only saw him fall to the
       ground. All three witnesses testified that they neither saw the defendant in possession of a gun
       nor fire a weapon and that they fled the scene shortly after they heard the gunshots. Rekia and


                                                   -8-
       Tiana also testified that the defendant wore a sling on one of his arms on the night of the
       shooting.
¶ 20        During jury deliberations and outside the presence of the jury, the trial court conducted a
       simultaneous bench trial and found the defendant guilty of being an armed habitual criminal.
       Following deliberations, the jury found the defendant guilty of first-degree murder of Lee and
       found that he personally discharged a firearm.
¶ 21        On September 23, 2011, the trial court denied the defendant’s motion for a new trial. The
       trial court then sentenced the defendant to 51 years of imprisonment, which included a 20-year
       firearm enhancement, and the court imposed a concurrent 20-year sentence for the armed
       habitual criminal conviction. On September 30, 2011, the trial court denied the defendant’s
       motion to reconsider the sentence. The defendant then filed a timely notice of appeal.
       Accordingly, we have jurisdiction.

¶ 22                                             ANALYSIS
¶ 23       We determine the following issues on appeal: (1) whether the State established beyond a
       reasonable doubt that the defendant committed first-degree murder under a theory of
       accountability; (2) whether the State established beyond a reasonable doubt that the defendant
       was an armed habitual criminal; and (3) whether the trial court erred in imposing a 20-year
       firearm enhancement sentence on the defendant’s first-degree murder conviction.
¶ 24       We first determine whether the State established beyond a reasonable doubt that the
       defendant committed first-degree murder on a theory of accountability.
¶ 25       As a preliminary matter, the defendant points out in his reply brief that the State’s response
       brief makes various references to gang evidence, which had not been presented at trial, and
       asks that this court strike or ignore these gang-related references. We agree that the State’s
       original brief makes gang-related references from portions of the transcript of the defendant’s
       videotaped statement that were not played for the jury. However, in December 2014, this court
       granted the State leave to file a corrected brief, which removed from the brief all gang-related
       references that were not admitted at trial. The corrected brief did not make any substantive
       changes to the State’s arguments regarding the issues on appeal. Also, in the interest of judicial
       economy, this court will treat the defendant’s reply brief to the State’s original response brief
       as a reply brief to the State’s corrected brief.
¶ 26       The defendant argues that his conviction should be reversed because the State failed to
       prove beyond a reasonable doubt that he committed first-degree murder under a theory of
       accountability, where the shooter was unknown and the weapon that was used to kill Lee was
       unknown. Even if the State’s evidence could be believed, he contends, it only showed that the
       defendant was shooting at Iesha and her friends, while Lee was nowhere in sight. The
       defendant argues that the State failed to present the testimony of any witnesses who saw
       “anyone else shoot at [Iesha] before [Lee] was shot,” that the State failed to present any facts
       that connected the defendant’s friends to the fatal bullet, and that the physical evidence
       implicated numerous unknown potential shooters. He contends that instead of charging the
       defendant for a crime against Iesha, the State “overcharged” him with the first-degree murder
       of Lee on a theory of accountability. Specifically, the defendant claims that, even viewing the
       evidence in the light most favorable to the State, the evidence was insufficient to prove, beyond
       a reasonable doubt, all of the elements of the theory of accountability.


                                                   -9-
¶ 27        The State counters that the defendant was proven guilty beyond a reasonable doubt of
       first-degree murder under a theory of accountability. Specifically, the State argues that the
       defendant was properly convicted of the offense because he and his friends participated in a
       common criminal design that resulted in Lee’s death. The State further argues that other
       factors, such as the defendant’s presence during the commission of the crime, his flight from
       the scene, his failure to report the incident, and his continued association with the other
       offenders after the shooting, all showed that the defendant was accountable for Lee’s death.
¶ 28        When the sufficiency of the evidence is challenged on appeal, we must determine
       “ ‘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 crime beyond the reasonable
       doubt.’ ” (Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009)
       (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great
       deference to the trier of fact and does not retry the defendant on appeal. People v. Smith, 318
       Ill. App. 3d 64, 73 (2000). It is within the province of the trier of fact “to assess the credibility
       of the witnesses, determine the appropriate weight of the testimony, and resolve conflicts or
       inconsistencies in the evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not
       required to accept any possible explanation compatible with the defendant’s innocence and
       elevate it to the status of reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229
       (2009). A reviewing court will not substitute its judgment for that of the trier of fact. People v.
       Sutherland, 223 Ill. 2d 187, 242 (2006). A reviewing court must allow all reasonable
       inferences from the record in favor of the State. People v. Cunningham, 212 Ill. 2d 274, 280
       (2004). A criminal conviction will not be reversed “unless the evidence is so improbable or
       unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt.” Graham, 392 Ill.
       App. 3d at 1009.
¶ 29        A person commits first-degree murder when, in performing the acts which cause the death
       of an individual, (1) he either “intends to kill or do great bodily harm to that individual or
       another, or knows that such acts will cause death to that individual or another”; or (2) “he
       knows that such acts create a strong probability of death or great bodily harm to that individual
       or another.” 720 ILCS 5/9-1(a)(1), (2) (West 2008); People v. Jones, 376 Ill. App. 3d 372, 383
       (2007).
¶ 30        At trial, the State prosecuted its case against the defendant for first-degree murder under a
       theory of accountability. A person is legally accountable for the criminal conduct of another
       when, “[e]ither before or during the commission of an offense, and with the intent to promote
       or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other
       person in the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2008).
¶ 31        To prove that a defendant had the intent to promote or facilitate the crime, the State must
       present evidence that establishes, beyond a reasonable doubt, “that (1) the defendant shared the
       criminal intent of the principal or (2) there was a common criminal design.” People v. Willis,
       2013 IL App (1st) 110233, ¶ 79. In the case at bar, the State does not argue that the defendant
       shared the criminal intent of the person who shot Lee. Rather, the State advanced its case on
       the theory that there was a “common criminal design” by which the defendant showed the
       intent to promote or facilitate the killing of Lee. The common design rule holds that “where
       two or more persons engage in a common criminal design or agreement, any acts in the
       furtherance of that common design committed by one party are considered to be the acts of all
       parties to the design or agreement and all are equally responsible for the consequences of the

                                                    - 10 -
       further acts.” In re W.C., 167 Ill. 2d 307, 337 (1995). “Words of agreement are not required to
       prove a common design or purpose between codefendants; a common design may be inferred
       from the circumstances surrounding the crime.” Willis, 2013 IL App (1st) 110233, ¶ 79.
       “Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with
       knowledge of its design supports an inference that he shared the common purpose and will
       sustain his conviction for an offense committed by another.” In re W.C., 167 Ill. 2d at 338. “A
       conviction under accountability does not require proof of a preconceived plan if the evidence
       indicates involvement by the accused in the spontaneous acts of the group.” People v. Cooper,
       194 Ill. 2d 419, 435 (2000). “In determining a defendant’s legal accountability, the trier of fact
       may consider the defendant’s presence during its commission, the defendant’s continued close
       association with other offenders after its commission, the defendant’s failure to report the
       crime, and the defendant’s flight from the scene.” Willis, 2013 IL App (1st) 110233, ¶ 79.
       “ ‘Absent other circumstances indicating a common design, presence at the scene and flight
       therefrom do not constitute prima facie evidence of accountability; however, they do
       constitute circumstantial evidence which may tend to prove and establish a defendant’s
       guilt.’ ” Willis, 2013 IL App (1st) 110223, ¶ 79 (quoting People v. Foster, 198 Ill. App. 3d 986,
       993 (1990)). A defendant may be found guilty under an accountability theory even though the
       identity of the principal is unknown. Cooper, 194 Ill. 2d at 435.
¶ 32       With regard to the intent element of accountability under the facts of this case, we find that
       the State failed to establish that there existed a common criminal design between the defendant
       and the multitude of armed partygoers who participated in the shooting melee that ended in
       Lee’s death. There was evidence that many men in the crowd, including, but not necessarily
       limited to, defendant and his friends, were armed with guns. The scene was described as
       chaotic once the shooting started. There is also evidence that Lee was alive when the shooting
       started. In defendant’s videotaped statement, he claims that Keevo accidentially shot Lee. The
       State never embraced that evidence. The State argued instead that Lee’s killer was unknown.
       At trial, the State presented evidence that the defendant and a “whole crowd of boys,” engaged
       in a verbal and physical altercation with Iesha and her friends, including “baby daddy.”
       Moments later gunfire erupted. It is unclear where that gunfire originated. The State’s evidence
       revealed that at some point, the defendant shot at Iesha and Elaina as they fled southbound on
       South Keeler Avenue. It is unclear from the evidence when Lee was shot. Tytianna testified
       that she heard about 25 to 30 gunshots fired from multiple guns during the melee and observed
       Pooh Bear shooting a gun in the air. Trial testimony also established that there were hundreds
       of people at the party and that many, if not most, of the men were armed with guns. There was
       no evidence that the multitude of armed men were all members of defendant’s “crew.” There
       was also evidence that at least 26 shell casings, a fired bullet, and a bullet jacket were found at
       the scene. However, given the amount of shooting, it can be inferred that there were revolvers
       in the mix as well. The State’s evidence technician, Balcerzak, testified that revolvers would
       not leave behind shell casings after being fired. In other words, it is impossible to know how
       many guns were at the party and who was firing them.
¶ 33       The defendant makes a reasonable argument that the State has not addressed satisfactorily.
       Specifically, the defendant argues that it is insufficient to show that multiple illegal acts
       occurred in the same vicinity without showing the common link between or among the actors.
       In the case at bar, a theory of accountability for Lee’s murder under these facts presented
       significant evidentiary challenges for the State.


                                                   - 11 -
¶ 34        The State has conceded that its theory of accountability is not based on a common criminal
       intent between the shooter and defendant. Therefore, the State was required to show that there
       was a common criminal design between defendant and the shooter who killed Lee. The State
       was required to do so under the facts of this case. Consequently, the defendant is able to make
       a convincing argument that the State charged him with the wrong crime or “overcharged” him
       with the murder of Lee.
¶ 35        It is undisputed that there was evidence that defendant fired shots at Iesha. Yet, that is not
       the crime for which the State chose to charge and try defendant. Inexplicably, the State chose
       to try defendant for the murder of Lee on a theory of accountability when the evidence did not
       provide proof of either a shared criminal intent (which is conceded) or a common criminal
       design. We note that the State has complete discretion to determine the charge or charges that
       will be levied against a defendant. It is also the State’s responsibility to ensure that the facts
       and the proof required to meet the burden beyond a reasonable doubt are consistent with the
       crime charged. In this case the State has failed to do so. Thus, at most, we find that the State’s
       evidence showed that an unidentified person killed Lee but that the defendant shot at Iesha and
       Elaina. Therefore, in order to establish a common criminal design, the State must prove beyond
       a reasonable doubt that the unknown shooter was a part of the defendant’s alleged criminal
       design to shoot Iesha and her friends but instead killed Lee while he was acting in furtherance
       of the plan that he and defendant had in common. Although the defendant claimed in his
       videotaped statement that Keevo, Pooh Bear, and Pee Wee fired their guns in retaliation
       against Iesha and her friends, those shots were described as being discharged after Lee had
       already been shot and, thus, could not be a basis for proving accountability for the shooting.
       See 720 ILCS 5/5-2(c) (West 2008) (a person is legally accountable for the criminal conduct of
       another when, “[e]ither before or during the commission of an offense, and with the intent to
       promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such
       other person in the planning or commission of the offense” (emphasis added)). No evidence
       was presented by the State that anyone other than the defendant shot at Iesha or Elaina.
       Although someone in the group of “boys” yelled, “[s]hoot them ho’s, [s]hoot them ho’s,” that
       person was never identified and there was no evidence that any one in that group fired a gun.
       Aside from the defendant, the only other person identified by a witness at trial as having shot a
       gun was Pooh Bear, who fired into the air. Thus, we find that the State could not prove beyond
       a reasonable doubt that anyone belonging to the defendant’s group of “homies” fired gunshots
       at Iesha and her friends and shot Lee instead.
¶ 36        Even assuming, arguendo, that the State’s evidence did show that other persons
       participated in the defendant’s criminal design to shoot Iesha and her friends, no direct or
       circumstantial evidence established that any one of those participants was the shooter who
       killed Lee. While it was undisputed that the defendant was present at the crime scene, and
       evidence showed that the defendant and his friends were armed at the party, the evidence was
       insufficient to prove that the unidentified shooter was a member of the defendant’s alleged
       criminal design to shoot Iesha and her friends but instead killed Lee unintentionally while
       acting in furtherance of the plan. As discussed, hundreds of people attended the party, where
       most of the men were armed and not all of them belonged to the defendant’s “crew,” and
       forensic evidence recovered from the scene revealed that at least 28 gunshots from seven
       different firearms had been fired during the shooting–yielding the possibility of numerous
       unknown potential shooters who may or may not have been associated with the defendant. The


                                                   - 12 -
       police only recovered one out of the seven firearms during their investigation. Because the
       fatal bullet that struck Lee had exited his body, its caliber remained unknown and it could not
       be traced to a particular weapon or shooter.
¶ 37        We note that individuals committing crimes in the vicinity of each other cannot
       automatically be held accountable for each other’s criminal acts. Rather, where there were
       multiple shooters at the party, the State must show that Lee’s unidentified shooter shared in the
       defendant’s alleged criminal design thereby establishing the “common” link between them.
       See Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991) (reversing accountability
       murder conviction on the basis that the trial court “assumed,” absent any evidence, “that the
       bullet that killed [the victim] must have come from a gun fired by one of the [members from
       defendant’s gang]”). Absent this showing, it is not difficult to imagine other scenarios by
       which Lee was shot. For example, someone who had a personal grudge against Lee could have
       used the chaos and confusion of the brawl and shoot-out at the party as a convenient pretext to
       shoot him with minimal risk of detection. See id. at 1159. Based on the evidence, we find that
       the State has not established a factual link between the bullet that killed Lee and any shooter in
       general, let alone any shooter sharing an alleged common criminal design with the defendant to
       shoot Iesha and her friends.
¶ 38        The State cites People v. Terry, 99 Ill. 2d 508 (1984), and People v. Kessler, 57 Ill. 2d 493
       (1974), in support of its arguments that the evidence was sufficient to convict the defendant of
       murder on a theory of accountability. However, we find these cases to be distinguishable from
       the facts in the case at bar, where neither Terry nor Kessler involved an unknown principal and
       the perpetrator in each of those cases shared in a common criminal design with the defendant.
       See Terry, 99 Ill. 2d at 517-18 (evidence sufficient to find defendants guilty of murder on a
       theory of accountability, where codefendant Myers stabbed the victim while they were
       committing battery against him); Kessler, 57 Ill. 2d at 499 (evidence sufficient to convict
       defendant of attempted murder, where defendant told two companions where he had seen large
       sums of money and remained inside the car while the two companions burglarized the
       premises and shot the tavern owner and a police officer during the burglary). Unlike Terry and
       Kessler, evidence at trial in the instant case failed to establish that the unidentified shooter was
       a member of the defendant’s alleged criminal design and that he was acting in furtherance of
       defendant’s plan to shoot Iesha and her friends or anyone else when he unintentionally shot
       Lee. Thus, we find that the State failed to prove beyond a reasonable doubt that there was a
       common criminal design between defendant and Lee’s killer, so as to establish the defendant’s
       intent to promote or facilitate the crime. See People v. Perez, 189 Ill. 2d 254, 269 (2000)
       (holding that there was insufficient evidence that defendant shared gang member/shooter’s
       criminal intent, or that he was engaged in a common criminal design, to support a murder
       conviction on an accountability theory). Therefore, we hold that the evidence was insufficient
       to convict the defendant of first-degree murder under an accountability theory.
¶ 39        We note that it is quite possible that the defendant could have been successfully prosecuted
       for murder under a different theory, such as felony murder predicated upon mob action, or
       could have been prosecuted for the attempted murder of Iesha. However, the State chose to
       charge the defendant with first-degree accountability murder and “must live with the
       consequences of having proceeded on a theory that it could not establish with the certitude
       required in criminal cases.” Fagan, 942 F.2d at 1160. Accordingly, we reverse the defendant’s
       first-degree murder conviction and vacate his sentence on this conviction.


                                                    - 13 -
¶ 40        We next determine whether the State established beyond a reasonable doubt that the
       defendant was an armed habitual criminal.
¶ 41        Outside the presence of the jury at trial, the State introduced into evidence two certified
       copies of the defendant’s previous convictions: (1) a certified copy of a January 9, 2007 felony
       conviction for possession of a controlled substance with intent to deliver, in violation of
       section 401(d)(i) (720 ILCS 570/401(d)(i) (West 2006)) (case No. 06 CR 2687101); and (2) a
       certified copy of a February 1, 2002 felony conviction for aggravated unlawful use of a
       weapon, in violation of section 24-1.6(a)(1) (720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No.
       01 CR 1233801). During jury deliberations, the trial court conducted a simultaneous bench
       trial and found the defendant guilty of being an armed habitual criminal. In sentencing the
       defendant for first-degree murder, the trial court imposed a concurrent 20-year sentence for the
       armed habitual criminal conviction.
¶ 42        The defendant argues on appeal that his armed habitual criminal conviction should be
       reversed because the State failed to prove beyond a reasonable doubt that he had two
       qualifying convictions to satisfy the necessary elements of the armed habitual criminal offense.
       Specifically, he contends that his 2002 felony conviction for aggravated unlawful use of a
       weapon, a predicate offense to the armed habitual criminal offense, was void because the
       statute under which he was convicted for the 2002 felony was declared unconstitutional by our
       supreme court’s decision in People v. Aguilar, 2013 IL 112116.
¶ 43        The State counters that the defendant’s armed habitual criminal conviction should be
       affirmed where his 2002 felony conviction for aggravated unlawful use of a weapon was valid
       at the time he possessed his handgun in the instant case.
¶ 44        The armed habitual criminal statute provides in pertinent part the following:
                    “(a) A person commits the offense of being an armed habitual criminal if he or she
                receives, sells, possesses, or transfers any firearm after having been convicted a total of
                2 or more times of any combination of the following offenses:
                        (1) a forcible felony as defined in Section 2-8 of this Code;
                        (2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon;
                    *** or
                        (3) any violation of the Illinois Controlled Substances Act or the Cannabis
                    Control Act that is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7
                    (West 2008).
¶ 45        The parties do not dispute that the defendant’s prior 2007 felony conviction for possession
       of a controlled substance with intent to deliver satisfied one of two qualifying offenses under
       the armed habitual criminal statute. Rather, they disagree on whether his 2002 felony
       conviction for aggravated unlawful use of a weapon satisfied the second of the two qualifying
       offenses under the statute.
¶ 46        In Aguilar, 2013 IL 112116, our supreme court found the Class 4 version of the aggravated
       unlawful use of a weapon (AUUW) statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West
       2008)) to be unconstitutional in violation of the second amendment right to bear arms. When a
       statute is declared unconstitutional, it is void ab initio, or as though the law had never been
       passed. See People v. Tellez-Valencia, 188 Ill. 2d 523, 526 (1999). The defendant maintains
       that because his prior conviction for the Class 4 form of AUUW (case No. 01 CR 1233801) is
       void under Aguilar, the State could not rely on this now-void conviction to serve as a predicate

                                                    - 14 -
       offense for being an armed habitual criminal. Therefore, he argues, the State failed to prove an
       essential element of the offense of armed habitual criminal. The State counters that since the
       defendant’s 2002 conviction for AUUW was valid at the time he possessed a firearm in the
       instant case, the State sufficiently proved at trial that he was an armed habitual criminal.
¶ 47       We find that this court has already addressed the same exact issue in People v. Fields, 2014
       IL App (1st) 110311, and People v. McFadden, 2014 IL App (1st) 102939, appeal allowed,
       People v. McFadden, No. 117424 (Ill. May 28, 2014). In Fields and McFadden, this court,
       relying on People v. Dunmore, 2013 IL App (1st) 121170, reversed the defendants’
       convictions at issue in those cases and held that each defendant’s prior conviction for AUUW
       under the statute that had been declared unconstitutional by Aguilar could not serve as a
       predicate offense for the defendant’s armed habitual criminal conviction (Fields) or unlawful
       use of a weapon conviction (McFadden). We find no reason to deviate from the holdings in
       Fields and McFadden. Because the defendant’s prior conviction for AUUW was based on a
       statute that was found to be unconstitutional and void ab initio in Aguilar, we cannot allow it to
       stand as a predicate offense for the defendant’s armed habitual criminal conviction in the
       instant case. Thus, we find that the State was required to, but could not, prove beyond a
       reasonable doubt an element of the offense of armed habitual criminal, where the statute
       underlying the AUUW conviction was found to be unconstitutional and, thus, the conviction
       cannot serve as a predicate offense for any charge.
¶ 48       The State maintains that the defendant’s armed habitual criminal conviction should be
       upheld, arguing that Fields and McFadden were wrongly decided because those cases failed to
       consider how the defendant’s previous AUUW conviction was still valid at the time he
       possessed the firearm in the instant case. The State contends that “it is the status of the prior
       felony conviction at the time the defendant possesses the firearm that controls, regardless of
       whether that prior conviction is later found to be constitutionally invalid or is later expunged.”
       In support, the State cites two federal court cases–Lewis v. United States, 445 U.S. 55 (1980),
       and United States v. Lee, 72 F.3d 55 (7th Cir. 1995). We disagree. Lewis and Lee do not
       involve predicate felony convictions that were based on an unconstitutional statute and, thus,
       have no applicability to the facts in the case at bar. Therefore, we reiterate that we have no
       reason to deviate from the holdings in Fields and McFadden.
¶ 49       The State also argues that this court has no jurisdiction to consider the merits of the
       defendant’s predicate prior AUUW offense. We emphasize that the defendant’s prior
       conviction for AUUW (case No. 01 CR 1233801) is not at issue here, nor do we make any
       findings as to whether Aguilar would be applicable to that conviction on a collateral attack. We
       also emphasize that we are not vacating the defendant’s AUUW conviction (case No. 01 CR
       1233801) pursuant to Aguilar. We further decline to address whether formal proceedings for
       collateral relief may be available to the defendant to vacate his AUUW conviction in that case.
       Thus, the State’s jurisdictional argument is misplaced here. Accordingly, because the State
       could not prove beyond a reasonable doubt an element of the offense of being an armed
       habitual criminal, we reverse the defendant’s conviction and vacate his sentence for the
       offense of being an armed habitual criminal.
¶ 50       In light of our holding to reverse both the defendant’s conviction for first-degree murder on
       a theory of accountability and for being an armed habitual criminal, we need not address the
       remaining issue regarding whether the trial court erred in imposing a 20-year firearm
       enhancement sentence on the defendant’s first-degree murder conviction.

                                                   - 15 -
¶ 51   For the foregoing reasons, we reverse the judgment of the circuit court of Cook County.

¶ 52   Reversed.




                                             - 16 -
