a three when there is possession of a fire when when the dangerous weapon happens to be a firearm even though the four doesn't use the word dangerous weapon just uses  this sense their argument equal to a just further description of the dangerous weapon which would be covered under a three and there is taste law about for example the case having to do with the two people who but what the firy of the state was because the description given by the victim was sufficiently vague and so there was never a question beyond the description of something pressed against the victim's head and that a barrel was seen that it was this sure my eyes of this individual that it was a firearm but less than conclusive proof that it was a firearm but whatever it was it cause it least under the state's theory some damage because the victim came out of it with a little blood and with a bruise from the contacts and so under those circumstances are we to say that because of the in accuracy or the inability to be specific in the description of implementing caused injury that somebody gets a get out of jail free car number given for that between the citation and the actual charge here's furthering compatibility because the charge intermingles the words dangerous weapon which is  i'll get a response from the state and if i were you i wouldn't so it can see to quickly what you think is the momentum on your side because there may be some questions come up the other way you know and they have to prove that particular section of the statute and they did not prove that it was something other than a fire but i suppose the test is not the ink  didn't they prove that subsection didn't they prove that there was some object which was dangerous since nobody was under the misconception about the lack of clarity of person if it's not charged to defend it cannot be convicted of it unless it's a lesser stronger case because there you would actually be relying on the fact that it was the item was something which did what a firearm is supposed to do it's supposed to be able to you be used to eat jack a projectile it causes damage to someone here regardless of what you call it the injury that occurred assuming the state prove that part of it was through something that would not be magical or or would not be specific to a handgun could be to almost anything with any weight and your honor it doesn't say other than something used as a hand it's very specific it says other than i had it with the statue before the amendment just that the dangerous  and then after january first two thousand the legislature made it very clear that for a country of other than a fire and if you think you are trying to create this issue or do you think they sort of blundered into it i do think they blundered into it but the but if i stand here the fact that the state chose to proceed on a one count indictment and shows only to charge him under a three having a statute in front of them i mean it's not like they didn't know what a three dozen a handgun under the current eight for those not require proof that it's dangerous if a three under which he's trying if or if the charging us recites the fact that it however since they only proceeded under three they have to be able to sell that it was something other than a fire but what about a situation like this where nobody knows really what it was they charge it both ways the jury finds that  that there was sufficient proof to make it a handgun and a reviewing court said no you guessed wrong jury because although it caused serious injury  we find that there is there was not sufficient proof to say it was a handgun and you acquitted jury on the dangerous weapon part of it is not an anomalous result because if the jury was of the belief that whatever it was it was a dangerous weapon because it caused serious injury to when the individual then they're put in this very tough situation of trying to fit i the the jury would find that it's not a handgun that makes it easy for us because that everything house that is dangerous when it's used is a dangerous weapon o fatal variance here because the statute that's charged is the wrong one for fireworks and that doesn't seem to trouble the defendant the all you know the fit because you're not you're not focused on whether it's a if there is a variance you're simply focused on the fact that there is no walk insufficient proof of a three but i you know i wonder how genuine that is recognize three categories but if it's a good investment if it's a applies because earlier you seem to agree that under the four it's a per se one of a requirement are whatever it is as long as it's a the guns when they are not used this handguns when they're used as left they brought standards to three different types of weapons could but in terms of the statute itself which specifically excludes that type of weapon no i think you have to look at these categories of dangerous weapons to determine whether it is a dangerous weapon and then you look and see if they prove that was a dangerous weapon there would be very little question that you couldn't first that the weapon that caused this looks dangerous you may not know whether it was the gun but you would know that even if it whether this little in the station on the forehead constitutes enough of an injury to make that kind of him friends or that it was dangerous by causing since it could be caused by it's you know so  but the other item of evidence here is the glance upward at the barrel seeing only that portion it's like you know the blind testing whether what  prince that was a gun and there are various cases that seem to indicate that you don't have to see the whole gun to surmise that it was a so now the question here is which way are you going are you going with the fact that it is a gun are you going with the fact that it would be otherwise a dangerous weapon if the injury worse commits the offense of aggravated vehicular hijacking when they're armed with a dangerous weapon the instructions never specified other than a firearm they just said dangerous weapon but they asked for the definition of dangerous weapon and the court provided a list of law the definition of dangerous weapons which they need to know to make a factual determination of whether mcbride was carrying a dangerous weapon other than a firearm but the court gives them this this listing which doesn't explain how to determine whether the weapon is a dangerous weapon based on the ross categories it just tells them guns are dangerous weapons eleven different types of guns are listed in this arm violence statue that actively answers the there's here and the problem here is that when me when the statute was amended in two thousand and it went from just dangerous weapon to having these distinctions between firearm and not firearm yet guys because it wasn't a fatal variance why do we care either way to the crime either it was a dangerous weapon under eighty three what they found based on the fact that you have perhaps in this proof or definition a submission of what is in part a three submission and a part in a forest admission and maybe in part something else which is the blacks law dictionary which probably pertains to a three and that instruction on the law we would be compelled by the u s supreme court decision needed really take a look at whether this instruction error if it occurred meant anything was it at all different from what was going on here so basically if you had a an injury that occurred by the use of this i do whatever it was well it doesn't matter if it was a properly constructed in the first place by the court in other words would there be any reasonable possibility that the jury would find that given the injury that ensued from the use just don't know whether the jury decided that or not because they're giving this but that isn't what you were addressing with your with your argument you're addressing that the over inclusion of these items that the jury could have picked one of the items as what it was and erroneous lee decided that that weapon was dangerous and my point to you is if you take it from the evidence that it was dangerous because of how it was used and what it what injury it caused it wouldn't make any difference whether there was an instructional error or not because that would be sufficient lot of questions that have been posed and i want to answer them all but i'd like to frame my arguments outset under the illinois supreme court's recent decision in washington because that's the piece people's position at washington is dispositive free and it was done for a very particular reason and the reason is reflected in point of fact in the record in this case where the trial judge talks about the fact that the people would be on able to obtain an enhancement and that is because of the illinois supreme court's involves proof focuses you know it is seeing as my opponent has pretty much a terribly conceded that there is no variance problem i don't really want to take up the gauntlet on her behalf but to the extent that your hon supreme court was confronted with a very similar situation where a charging decision was made to charge the defendant under the premium and that statute even though the offense was committed post a man because there was a problem at that point with the cross comparative analysis because of markets and the illinois supreme fork when confronted with the issue two issues one of them being the variance issue the other issue being whether or not the people's evidence to sufficient stay in their burden of proof set on the testimony that was given by the victim in the case and that was charged for the worse than this case because that case was charged it was jews were drawn during the pendency of the wall the unconstitutionality so they were drawn with the old statute the pre amendment statute all right something in this case there is no question that the indictment was drawn once shot restored dealing with a dead horse because the green amendment statute was temporarily interposed during the pendency of the supreme court your honor in this case this gun it's the people's position was a dangerous weapon in that it was used as a bludgeon and again i'd ask the sports look at the facts in washington where you did not even have that grooves on the side of the victim's hat and it draws blood it's the state's position that proved that was a just a trial establishes that this gun was used as a dangerous weapon and the state is obligated to prove that it's a firearm in order for the firearm firearm add ons to occur the state can take the same conduct by the same village and depending whether they like in people versus here why that's exactly right there are all sorts of ways can creativity come in to play yes it can there's nothing inappropriate about that and there's nothing that makes the stats just worse and so i disagree with your honor in terms of the discretion that's left to the states with of course the can competent avocations always sustain our burden of proof this case was charged as a dangerous weapon because that gun was used as a bludgeon that's what happened in this case  the use of a firearm and there was extensive litigation over how this was going to proceed and both the state and the defense of grief that it was going forward on one basis and one basis only and that was firearm and it was charged as fire not as dangerous weapon the state sought a special verdict for asking that the jury come back and find that it was a firearm and the jury ron paul came back and said you know what no it's not a firearm which cost the reviewing or in favor of eighty three when a handgun is used as a bludgeon are you referring to life is that the case you're relying i wasn't specifically referring to a case and i have to apologise i did not write the briefs in this case so i don't i know that like and sets out the different forms it's different manners in which something can be considered to be a dangerous weapon i have that much familiarity to be able to what happens when you do as you have a case where the and here was charged with a dangerous weapon and he used a dangerous weapon and to suggest that somehow it can be anything but a gun is just counterintuitive i mean so we were supposed to just say some of law the judge is supposed to respond to that question a two hour conference transpired in which various options were consider at the end of the day what the defendant per se rule and they didn't hear about because it has to be they were given several ways in which an object could be used as a dangerous weapon and in this case it was you have overwhelming evidence supporting the fact that the defendant committed was any impropriety and that we're relying on let me just say one more thing though i would like to cite a case which is cited in our brief which is the case of people versus hawkins involving an act aggravated kidnapping with a dangerous weapon charge where this theory of dangerous weapons versus firearms but that case is not so with our position that the instruction was absolutely properly given that it gave clarification for the jury that the jury had a lot of things that they could turn to includ dictionary definition and that even if this court should find either that there shouldn't have been a response or that any portion of the response that was given listen proper it's the people's position that there is absolutely no prejudice evidence having to do with the particular usage but the evidence of guilt in this case is also known as dispiriting guilt the question is whether he's guilty for twelve years or guilty for twenty or whatever there was no usually in springfield your honor but it's nice to be here nice to be back in a while thank you something that there was enough for a jury to make its call on not are you saying that there wasn't enough data to support a jury verdict or on that issue on whether mention hawkins which the state referred to and said that there's precedent for giving violence this listing for these cases and that's not exactly true hopkins as an aggravated kidnapping case and the statutory language in hopkins is