c thank you good morning your honour's may please the court my name is siri mine down here on behalf of the people of the state of illinois the appellant's in this case the jury in this case found guilty of armed robbery aggravated kidnapping and aggravated vehicular hijacking this conviction was based on the evidence which was provided at trial which establish that while the victim was sitting in his delivery truck the defendant approach and pointed a gun in his head preventing the victim from escaping the defendant first victim back into the truck and the defendant in the of his male accomplished how men direct the truck forcing the victim to sit in the middle portion of the truck sitting on top of the say the defendant still pointing truck was pursued by the police and the fact they fled as the truck was still moving the victim was ultimately rescued by the officer who opened the cargo area of the truck the defendant was apprehended almost immediately evidence was insufficient here at the gun was a dangerous weapon even though the victim's testimony was positive credible and equivocal and i would buy it and it was absolutely a reasonable inference for presenting presenting evidence that it was used or capable of being used as a club or bludgeon here to state that neither you're talking about the rosses that was further from ross did the state present any evidence that the does not change the law that the jury is entitle to make a reasonable in friends based on the evidence of the gun was a dangerous weapon in was the reason why more evidence needed to be perfect provided was because the inference in ross was rebutted it was precluded by the evidence the evidence and russ was proven to be a small unloaded pellet gun incapable of being capable of being a dangerous weapon unless possibly added as had been established that it was used as a bludgeon where there was extremely heavy kalika however in this case that is that the case the inference remained intact the lot for myth and allows the jury to make it in friends that the the is their job to make the same phrase to determine whether the kind is a dangerous weapon so but we go further that's why i picked the quote that i did i mean and i'm not saying you're right or wrong on this but in  ross we say there is not a man the story presumption that a gun is a dangerous weapon the only testimony in this particular case is of is of the victim as i understand it saying that a gun was held to his head and then  ross goes on to talk about how the state may prove that either a gun is a dangerous weapon or a bludgeon none of which was done here and you're saying the difference is that there was the quote that you are talking about the court said that used the word may not must have not holding that in every case is the state must either prove that the gun to be recovered the well the law in many illinois cases has helped sufficient that when the credible testimony of a of a witness the victim in this case is on or about a the jury can then make indication that the victim was incapable of knowing what a real gun is it was the question for the jury to determine was this guy a real gun if the jury determined says it's a real gun which they did in this case and it was a reasonable and prince to right does not require an expert to task of five with regards to whether a gun is is a gun or not it again is about is was for the jury to weigh the evidence and make that  dangerous weapon this inference remains intact here on like the inference in ross or in the one where the avett ends precluded that inference it was real but it it was the evidence established that those weapons  standard of review or require that account be recovered for the people to establish the burden of proof apply the appropriate standard of review and has overextended this course decision and ross which really is distinguishable and just not apply in this case based on ideas made here today and those made in our preferred people respectfully request that this honorable court of reversed the appellate court's decision and affirm defendant's convictions and sentence for aggravated kidnapping at a rate of vehicular hijacking and i'm robbery thank you very much dealing with disposing of the gun and it's not required so that's not your position so my question is in this in this case we have the testimony of the victim right we don't have to get on or get we have the testimony of the victim what would the victim had what would the victim have had to say to be in compliance with i think your position is that ross would say we need more here what would th the subjective belief of a victim with regard to the dangerous nature of a weapon is insufficient and the state doesn't challenge that legal holding in this a p r isn't isn't it becoming though requiring that testimony is going to be coming perilously close to this court doing exactly what neither you nor the state are asking us to do and that is basically saying that if there's a gun that's disposed of it's going to be very difficult to firearm offenses i don't think so let me just share something i'm going there i mean even if you say it's it was cold it was metal it was you know against my had it had a polished handle i mean in that case it still could be a toy gun it could be a lot of other things so them a firearm capable of shooting a gun so are we getting close you know get rid of the gun and know for no and and there's an important distinction here because this is not a firearm case this is a case where the state argued the dangerous weapon was dangerous because it was capable of being used as a bludgeon and that's an important distinction here as you noted the state has not argued and the record doesn't show that the object that washington used was a gun that was loaded and therefore dangerous per se or that it was even used or wielded as a bludgeon so the question in this case is whether there was any objective in evidence introduced that it was capable of being used as a bludgeon but it is something a gun is something that most people can identify even without specific characteristics and if that's the case if they can identify a gun then you can almost presume that it can be used as a bludgeon well i don't know that i would necessarily agree that the average layperson could distinguish between a real gun or plastic on it but that this particular victim testified there was a gun  t but again the victim testified that he saw a gun only gets so far as he had a subjective belief that he had a gun there needed to be a follow up question what makes you think it was a god could you heavy the court this court in ross indicated that whether or not an object is a dangerous weapon is a question of fact for the trier of fact to decide but that decision has to be based on some objective evidence as to the physical characteristics of the object rather than just the victim's subjective belief that it was capable of being used as a pleasure but even that evidence is and have to be held in the light most favorable to this court has repeatedly rejected that as a basis there is no objective there is no the victim didn't testify as to the weight of the composition of the object that he saw that there is no testimony that we can defer to to the tr but it could have bed a hard plastic there have been cases that indicate you know something that there needs to be something beyond that a description of some sort and in this case there just isn't any evidence and with it looked like it was made of metal it could be could have said it would look like it was made of wood because again he did the state didn't have to prove that this was a real crime just that it was something that was capable of being used as a bludgeon so some sort case we can't even get to that step because the victim in this case didn't testify that he had any contact with the object at issue in this case would it be necessary and you're a witness to then that might get closer to being a question of fact having some sort of objective evidence but but here we don't really have that i think that if there was something regarding the caliber of the gun or the metallic nature so that that would be dangerous per se sort of a gun well if a gun was loaded in dangerous or if it was alleged that washington was using a firearm in this case that that certainly would be a separate question but the state in this case the question is blood perhaps perhaps again that would be a question of fact for the tire fact to decide as long as there was sound evidence in the record as to the makeup of the bow and arrow i suppose but but i would guess that that that question would would be preempted find that it would have to overrule ross and skelton saying that a subjective belief is a now now now if that lay person took another step and added a y in that person's opinion it was a gun because it was made of metal because it was a and use the conduct of the victim is the next step the the conduct of the victim he complied with because of this fear legislate complied with the offender to do what he said to do so that would be the next step that he create a basis for finding that it was a dangerous weapon that's what he said but i'm talking about the conduct and he victim why he acted accordingly right but of course the victim if  victim would not have been compliant if they had not actually been a dangerous weapon but of course the legislature has already contemplated an offense for situations where the victim believed there was a dangerous weapon but there was not and that's aggravated ro was capable of being used as a pleasure and so you agree that if it was a gun if we say away person and testify then as i saw them and it's a gun that's sufficient to prove it could be working no not unless there was some follow up description of what it was i don't agree that a lay person simply saying it was a gun is enough there would have to be an explanation  metallic nature of it that was a revolver or what have you then but that would be for the trier of fact to determine whether there was sufficient evidence there but even in that situation the pearl could be past the metallic could be mandatory presumption that a gun is a dangerous weapon in the state is not a challenge that in this case at all and again to a longstanding law is that simply believing that a gun is a god is not enough the trier of fact allowed to make that decision that has to be based on something other than simply what the victim believes there has to be some description well you know where that leads was the victim question or cross examined as to his ability to many things so the question is can a lay person render an opinion on something being a god i don't even know if we have to get to that question in this case to be totally honest because the one purpose is  was two feet from one foot i don't believe that that's sufficient just being able to see an abstract without saying and it was a certain caliber it was it's only rendering opinion that based upon what i saw i believe this was a good idea that i do not believe that that's a sufficient under under basra specifically said that a subjective belief is not enough and that's an important i guess it's a simpleton distinction to make even though ross we knew in fact we  lot more about the dangerous weapon in ross than we do in this case we knew that it was that a small that was black but it was a pellet gun these are all facts going to the dangerous tapered nature of the weapon whether it could be applied in this could be heavy but the important thing is ross is not about whether or not a pellet gun can ever be a dangerous weapon it was about whether there was sufficient evidence describing the palatine in that case which is the same reasoning that the appellate court used in this case is t felt but this was in fact i know you said that not the subject right back to look at i know i don't believe so because the case was very clear that you need something other than you need you need some sort of description of the of the weapon or the object at issue you know that me go that may be sufficient to demonstrate aggravated robbery but it doesn't get so far as armed robbery in this case you get away just one quick question would you agree that the second issue in your cross of feel was recently resolved and people versus avery i i i don't think so in this particular case would have been required because there in france the permissible in france of dangerousness was rebutted in those cases because the weapon used in those cases ross the one in skelton affirmative showed him prove that they were not capable of being dangerous weapons they were pellet guns they were b b guns they were twenty guns the inference of resale remains intact here and the victim's testimony describing that the defendant because certainly the people have to prove the elements the offense beyond reasonable doubt if people did that in this case because the jury here was so permitted to make an inference of dangerous based on the credible testimony of victim and however the inference of dangerousness that was made by the trial court in ross was found to be unreasonable because the evidence affirmatively show that it was not a dangerous weapon and the last people presented more evidence that this unloaded polygon was capable of being used as a dangerous weapon and the people cannot sustain their burden but that is not the case here if a gun is unrecoverable like in this case it was there was no gun to prove that it was capable of being a weapon other than the fact there was testimony by the victim that it was a gun and never be able to prove case if you needed more that would be correct your honor the people cannot sustain their burden of course the people with up to recover the guns in every case because at what point is a description and not the victim's testimony a gun was held to my head why would it make it any more reliable if the victim said oh it was a silver gun it's still a gun  have made and the question remains was it a reasonable and friends and in this case it was the arguments which i found it made here today are very similar to the arguments which defense counsel made before the jury and th the jury heard the arguments that the gun was our coverage that people tend to say have a ship burden of proof that the gun was not described the jury heard these arguments but still believe the victim and determined that the gun that was used review here by mischaracterizing him misapplying it over extending this court's decision and ross the people would ask is this court reversed the defendant's the affirm defendant's conviction and reverse the allowed to infer that back on israel therefore capable of being used to supply chain and a dangerous weapon that is the law and to affirm the power court's conviction could unto you and rewrite decades case number one zero seven ninety three will be taken under