robert was a former marine a nurse from hayworth and was convicted of reckless discharge of a firearm after a jury trial in order to convict robert the state had to prove that he discharged a firearm in a reckless manner and that in doing so he endangered the bodily safety of an individual other than himself here the state failed to prove either element now the state's theory of the case was that robert fired directly into the air across the street in front of him and because he fired into the air that was reckless and there was evidence of people in the vicinity would show that he endangered the bodily safety of an individual but the state presented no evidence that the gun was pointed in the air it presented no evidence of the direction that that gun was going to their own car testified for the state that he was across the street diagonally from defendant about two hundred seventy feet away and he saw a muzzle blast at the same level of the door bell but he admitted that he didn't see the person firing the weapon and that that person might have been a few feet from the door see also were there reasonable inferences to be drawn from that i think seeing a muzzle blast at night proves nothing about the direction that that gun was pointed and that's the only evidence of the state presented in terms of the direction that the gun was fired the state otherwise presented physical evidence that didn't corroborate its theory that robert was standing at his front door because it was unrebutted that the casings objected from defendants gone back into the right and then the state presented physical evidence that showed casings that were in front of the door on the porch and so i defendant was standing at the door those casings would have been inside house so this physical evidence contradicted the state's own theory but the sights that the state otherwise didn't present any evidence on the direction that that firearm was pointed and the state in this case relied heavily on collins and in collins we have different circumstances there because the defendant conceded that he fired into the air and that that was reckless at the question there was whether he actually end that right but mr karr also admitted that he didn't see the person and so he couldn't actually position that person at the front door although the front front porch light was all the knowledge that you can see of course right and also that that person wasn't necessarily out the door or i would submit then that just seeing that muzzle blast still doesn't prove that that gun was pointed in the air and pointing the gun from the door is still pointing it in the air unless of course that gun was pointed in the ground which is what defen the snow all that's right as far as the muzzle blast so there was no evidence about muzzle blast length or muslim blast direction the state actually the prosecutor actually argued in closing that the muzzle blast would have been shorter and closer to the ground where the state didn't present any evidence on what that means even if if the the muzzle blast might have been lower the muzzle blasting shorter doesn't give any information to the jury the jury wasn't presented prosecutors argument was not happiness and actually the prosecutor argued backs not in evidence which was a part of the third issue that we raised and effective assistance they're clearly going to be lowered the ground to the physical placement of the front porch persons well he says that i think also yes but i think also the evidence showed that mr karr was diagonally across the street and that his view was actually blocked by the garage he didn't have a direct view of defendant and he couldn't place the position of the defendant but again prove if it was trying to show recklessness and that way so your premises the fired ground use to say no it's not per se reckless and that under the evidence that the jury was presented with here there was no is analogous to moreno now in that case you had a defendant who was firing his gun at night in the backyard into a grassy area there was no evidence of ricochet and the only people who were present were behind him so no one was harmed the court found except for the defendant in that case who fired a blanket his hand to show the guests of his party that there was no real harm in what he was doing and the state found that he wasn't reckless and that he didn't endanger an individual the state says marino isn't applicable aside from the conflict of whether or not he fired into the air the state so that marino didn't meaningfully address collets but that argument ignores the context of the merino court's reasoning that reasoning begins well before the statement that the state cites here no individual was in peril of probable harm or loss that reasoning begins as early as paragraph thirty eight where the marino court summarizes collins and acknowledges there the defendant fired into the air conceded that he did so conceded it was reckless the marino court continues to distinguish watkins an appellate court case which i collins because that defendant also fired into the air and the merino court held that the discharge into the ground was inherently different than firing into the air and they relied on post in illinois supreme court case that says firing into the ground is not per se reckless the state also attempts to w a merino distinguishing of johnson which is a fourth district case where in that defendant also fired into the ground but that distinction was foreclosed by collins but that again that ignores the clear distinction between firing into the ground and column says it doesn't matter what direction you're pointing the gun if you're firing into the air because common sense tells you that if you fire not knowing where the ball it's going to land it could land anywhere and harm someone but when you're firing into the ground you have a different scenario absent evidence of ricochet the ground absorbs those bullets and in johnson different scenario the defendant there was threatened by someone fired the gun into the ground in the direction of that person in the are a bit more analogous because in the rain or you had a backyard where the defendant lived he fires into the ground and the state presented no evidence of ricochet there was some there was speculation as to whether or not a backyard in joliet might have things in the ground but the idea there is this is defendant's yard there's no evidence that those bullets would appreciate similarly this is robert's front yard he testifies if you clear the area of light snow that is falling earlier in the day for his dogs and there's no evidence of ricochet i say i n marino there are more people around there right behind him but here the closest person that's outside is two hundred seventy feet away diagonally across the street at his front door and there's no evidence of ricochet and that is h argument starts with the problems that we have to accept the fact fire i actually have but it's not the premise the premise is you have to accept that the state didn't prove that he was firing into the air because evidence presented to the jury if this if the jury believes that he fired into the air it wouldn't be based on the evidence that the state presented because the state failed to present any evidence on the direction that the firearm was the point and that was more like you said counted seven right that is significantly different than what you or it is different and it is different but it also doesn't speak to where the defendant was shooting and again even if the jury discounted everything defendant said the state still didn't present evidence on the direction that defendant was firing a gun so if there are no other questions on the first issue i'd like to move on to the second issue which is that the courts failure to answer the jury question of law w court must attract the jury on specific questions of law of the state argues that the answer that endangering an individual did not include the defendant was without legal precedent but that's not the way that the grant park address to the grand court of course decided this issue after the trial but the grass court held that this has been the way the reckless discharge statute has been construed and included in citation collins and marino and that marino was decided only six months for trial doesn't really matter here because the court and the parties were very well aware of marino it's in the record they relied on it in their discussions so that they understood that in that case the court found that defendant wasn't guilty of reckless or he only harm to himself i should implant in his hand and the grand court also relied on peter's which is a one nine hundred eighty nine case out of the second district which resolve the question of who an individual was for the reckless conduct statute and so the court found that an individual meant the same under either statute we know that it's someone other than the defendant the state also argues that the jury asked the court to help them decide the ultimate issue in this case but that belies the nature of the question itself because there's only one answer to this question and that's you must determine whether a defendant endangered an individual other than himself there's no other factual scenario where a defendant would be guilty of this fence if he only and and that demonstrates how important resolution of this question was for the jury because it went directly to whether or not danger any one if one juror believe that the defendant had endangered only himself that he would have been acquitted and also in this case the jury indicated that it had been deadlocked and it requested the defense experts testimony so clearly struggling with the evidence now the sara of course was not preserved this court can reach it under plain error or ineffective assistance of counsel the evidence is closely balanced here under the first prong of the plan or a doctrine you have two competing versions and you also have physical evidence that contradicts one of those versions it also a second prong clean air and that affected defendant substantial rights because it the state had argued because this had been a lot recent one nine hundred eighty nine and there was no reasonable trial strategy to not answer a question that was important to the jury's determination guilt and so if there are no further questions because this jury's explicit question of why wasn't credibility and allowing all reasonable inferences from the record in favor of the prosecution this court should affirm defense conviction defendant testified that he shot his semi automatic pistol safely into the ground and are you said he was danger anybody however i witness car testified that the muzzle flash was even with the front door doorbell lights the jury heard this evidence and decided that defendant did not shoot safely into the ground the porch light was on but car so not saw no person firing the gun so the inference is perhaps that defendant was standing inside when he was shooting the gun even with the door bell like this  testimony directly contradicted from his testimony that he shot to the ground and in addition the neighbor ingles described hearing three groups the shots within a few minutes between with a few minutes between each  set and in between one said you haven't had time to talk to his children and karr was alerted to the shots by a phone call from a neighbor and then walked out on his front porch today preserve the shots occurring the testimony of these two witnesses directly contradicts defend his testimony that it took sect ten seconds or less more moreover the physical evidence does not support defendant's version the police found six spent shell casings on the front porch and one inside the front door defendant expert keller testified that if it could have been standing in a lot of positions for these casings to end up where they did this testimony eliminates the significance of the location of the casings in addition there was an hour between the time heard about seventeen or eighteen gunshots and only seven casings were found so something happened to those other cases in view of this evidence and i believe it's a credibility call and that this court should affirmed the jury conviction on the evidence as far as the instruction the state maintains the trial court did not care when in response to a question it told the jury that it had however the state is maintaining no air curd at all the court did not base its response on incorrect view of the law at the time of trial until the first district appellate court address what consists of an individual for purposes that this did not go to an ultimate legal issue i argued that the court would be a committing error by answering the question because it went to an ultimate real issue in the case the court could answer with a yes or no if the court answered that defend it could endanger itself defendant would be guilty so the court would have assisted in decided that ultimately you issue include a directed verdict it depends on the issue i mean pending an answer the case because even if the jury had been instructed that an individual does not include defendant the jury cannot possibly acquit this the defendant shot in a residential neighborhood car was present outside his house defendant's girlfriend with in the house and there were houses in the vicinity of the shooting as it was presented to the jury and i think that defendants  opposing counsel is based on no hindsight analysis and should not be held and happy for feeling rejected changing either and i don't see you this time around so thank you thank you i think your honor just a few notes here as far as acquiescence this isn't a lie because there was a substantial defect in the jury instructions here the jury was not properly instructed because they asked an explicit question of law and so in this far as counsel agreed with the response that's ineffectiveness because he didn't understand the law there's nothing that counsel could have said strategically to justify not answering this question considering how important it was to the jury's determination of guilt and when there is a substantial defect this court can address the error in the interest of justice under the plan or a doctrine again the this the answer to this question would only direct the verdict if there was a factual element to it there's no factual scenario in which the defendant could be found guilty if he endangered himself and therefore the answer is purely legal and even the statute doesn't state explicitly who an individual is that's not unlike other criminal law statutes as grant pointed out under the murder statute the battery statute the reckless conduct statute an individual means someone other than defendant and therefore counsel clearly didn't understand the law in this case and so acquiescent shouldn't apply there are no further questions i don't see th