please the court counsel my name is lee a bandit from the illinois attorney general's office on behalf of the people in this case presents two issues first whether the prior juvenile felony factor from the aggravated unlawful a weapon statute is an element of that offense or merely a sentence enhanced meant and second in the alternative if the trial court erred by giving the stipulation to the jury regarding the prior juvenile felony whether that error was court reversed because of the admission of the stipulation and we ask this court to reverse the appellate court's judgment as an initial matter i'd like to note that rather than say the entire phrase from this factor every time which is prior juvenile adjudication that would have been a felony if committed by an adult i'm going to refer to that as a prior juvenile felony and i'm also going to refer to the offense as aggravated u w as i do in the brief so then turning to the first issue this court should find that the prior juvenile felony factor is an element of that offense as this court is well aware in a question of statutory construction the primary goal is to ascertain and gather facts to legislative intent and the best indicator of that is the plain language of the statute here there is compelling evidence for how the general assembly regarded this factor in that the in the location of the factor itself the general assembly chose to put this prior juvenile felony factor in the in cases from this court such as robinson and green this court has looked to this location test as being a compelling indicator of how to regard whether a factor is a sense enhanced mint or an element in addition to this another indicator of legislative intent is the fact that the prior juvenile felony is listed alongside eight other aggravating factors in this initial subsection and there is no dispute by defendant that these other eight factors are elements of the offense and indeed the first one the un case loaded and immediately accessible factor from subsection a has been repeatedly and unanimously held by the appellate court to be an element of aggravated u w and so it's logical to infer that the legislature would have meant that all nine items from the same list to be regarded similarly this approach is consistent by looking at other offenses in the criminal code for example there are at least five other offenses that have prior conviction factors in the initial definitional subsection of those offenses and case law and the jury instructions that put forth either the definition of the elements confirmed unanimously that in these five cases these are elements of the offense including for example u w by a felon an arm to bitch a criminal these are details that pages fifteen through seventeen of the opening brief instructions examples can be found in pages eighteen in one thousand of the opening brief and include offenses such as aggravated kidnapping obscenity and criminal sexual assault now defense response to the people's position of putting a primary stress on where the legislature has located this factor is to instead propose a different framework defendant suggests that instead the question should be once you put the prior conviction aside you look at the remaining conduct and ask whether it's on lawful or lawful defendant proposes that if the remaining conduct is lawful then the prior conviction is an element of the offense but if the remaining conduct is unlawful then it should be  however defendant's proposal simply does not work with these five examples that the people have offered for example there's the offensive u w by a felon this court in people versus consolidates held without qualification that the prior conviction factor there is an element of the offense the remaining conduct for that offense is possession of a firearm now true that is a very broad elements but it is not true to say that that is always lawful conduct by looking at the simple u w statute this court could see that possession of firearms such as machine guns or sawed off shotguns is unlawful for anyone not just felons so if a felon were to possess a machine gun that would be unlawful conduct besides the prior felony and that would conflict with this court's holding and gonzales under defendant's framework that that would be an element so because that does not work in other examples in the criminal code this court should reject defendants opposed proposed approach defendant's other main argument in opposition of the people's position is to cite the case of people versus lucas and section one eleventh receive the code of criminal procedure but neither of these authorities help his position looking at section one eleven three see it notably begins with the phrase quote when the state seeks an enhanced sentence because of a prior conviction so what this language indicates is that this provision sets forth the procedure that people should follow when a prior conviction is a sentence and hanson and it does not provide any help for that more threshold question that is before this court here which is how to determine whether a prior conviction is an element or sentence enhanced meant and so in other words this provision is simply an applicable so then looking to the case of people versus lucas when when examined carefully this case actually supports the people's approach there this court was analyzing two different criminal offenses driving while license revoked and armed violence now the offensive  refer to as shorthand is on a first offense a misdemeanor but in a subsequent sentencing subsection that offense provides that a second or subsequent offense is a felony so this court noted that under section one eleven three see that people are barred from offering evidence of that prior conviction to the jury because in that case for that offense the prior conviction is a sentence enhanced and that is consistent with the people's approach that where it is located in a later subsection that it is a sentence enhanced mick now defendant there was also charged with armed violence and that offense prohibits a person see when armed with a dangerous weapon committing certain felonies and the state of charged him there with armed violence predicated on d w l our subsequent offense now this court noted because again that was provided in the initial definitional subsection that the that people would have to prove beyond a reasonable doubt the prior conviction in order to make d w l r a felony that could serve as a predicate felony for armed violence so that again is consistent with the people's approach that where it is included as the definition of the offense that it is an element that must be proven to the jury beyond a reasonable doubt and that is why this court ultimately held in that case that the w r subsequent offense cannot be a predicate felony for armed violence and so lucas provide support for the people's position accordingly this court should hold that the prior juvenile felony offense or factor is an element of that offense and notably defendant does not disagree that if this court were to reach that conclusion that the trial court did proceed appropriately and the manner in which the stipulation was offered to the jury and so the appellate court's reversal because of that stipulation should itself be reversed but secondly i would briefly like to note in the alternative that even if this court were to find any error in the admission of the stipulation that it should be found harm us now the people do acknowledge that that is a forfeited argument because the people did not include it in the appellate court either in briefing or in oral arg ment and it was omitted from the peel away however and under the cases in re rely on history this court has noted that this court has discretion to consider forfeited airs and that one appropriate exercise of that discretion is in a case in which there is a preserved issue regarding a question of whether evidence was appropriately admitted and there is a forfeited issue with regard to whether the any error in mission of that evidence was harmless because those two issues are intertwined and that is exactly the situation we have here because this statutory construction issue is bound together with the issue of whether the trial court appropriately had this stipulation go to the jury regarding the prior juvenile felony and so because that was properly preserved that issues and are trying with harmless error here so this court could properly exercise its discretion to reach harmless error in this case so if this court agrees and decides to use forfeiture this error if there was air it should be found harmless for two reasons first there was little or no prejudice to defendant in the admission and stipulation and second because of overwhelming evidence of defendant skillz this court should first find that there was little or no prejudice here because the trial court very deliberately instructed the jury that the stipulation was to be considered only with regard to count five which was the aggravated u w charge and secondly because there was no sentence imposed for the conviction of aggravated u w which shows that if there is any prejudice connected to this stipulation if presuming the jury follows its instructions it would not have tainted any deliberations regarding the other charges but even if this court were to disagree with that the trial court in any case did everything it could to reduce the risk of prejudice as this court held in people versus walker which adopted the united states supreme court case of all chief first as united states and the situation in which the issue is whether there is a prior felon status the proper way to reduce the risk of prejudice best is to omit the name in nature of the offense at issue because it is merely the fact of the prior conviction that is the issue so the details are not probative to that issue because that is exactly what the trial court did here in omitting the name in nature of the prior offense the trial court did reduce the risk of prejudice now defendant cites the case of people versus add consent in an attempt to argue that the risk was actually greater by omitting the name of nature but at consent is distinguishable in the issue was the context of using a prior conviction for impeachment of a witness and as this court noted in ad concerned both walker and old chief or not it at issue are not relevant because in the impeachment context the prior conviction is relevant not for the fact of a prior conviction but because the name in nature offense is what is actually probative for the jury to decide how that should affect how they regard the credibility of a witness and so that by o omitting the name of nature in that circumstance there is actually an increased risk of prejudice but that is simply a different context impeachment of a witness what we have here is squarely under walker and old chief about the status of a prior felony and so under walker and old chief the trial court's actions appropriately reduce the risk of prejudice and finally the second reason any error was harmless was because of the overwhelming evidence of defendant's guilt he was convicted of two different offenses aggravated discharge of firearm and aggravated u w and there is only one factual dispute regarding each conviction the factual issue regarding aggravated discharge a firearm was what direction defendant pointed his shotgun when he fired three times defendant contends he fired it straight up in the air and the people proved that he fired in the direction of the fleeing jeep which contained the two victims the two passengers and only if that latter fact was proven would he be guilty of aggravated discharge of a firearm now there was compelling evidence that defendant did point the gun in the direction of the fleeing jeep when he fired it there was in post importantly the testimony of jacob johnson who was a close friend of defendants and was there that night and witnessed him firing the shotgun and he said no less than four times during his testimony that the gun was pointed over in the direction of the jeep when it was discharged described as a thirty to forty five degree angle from the ground which showed no he did not fire it straight up in the air so this was certainly consistent with the testimony of the two victims who said that they saw defendant point the gun at them as they were driving away even though they both turned away and did not witness the actual discharge of the gun when they heard the shots fired and so then the final issue with regard to aggravated u w was whether defendant johnson's vehicle and he tossed the shotgun out the window of the car now defendant testified that no actually had the gun and ashley tossed the gun out of the car but if looking at who would be more credible in that situation because ashley was jacob's girlfriend jacob was a long time friend of defendant ashley said herself that she too was a friend of defendant and yet she testified against the interests of defendant whereas defendants testimony was wholly self interested therefore ashley was the more credible witness but in any case the moment if there were any throwing the gun out of the window is not the only moment of possession of that shock and in the vehicle and it was certainly undisputed that defendant had the gun and he fired it shortly before jacob ashley and himself got into the vehicle and drove away so certainly that is compelling circumstantial evidence that at some point he did have the gun in the car even if he did pass it to ashley at some point so given this overwhelming evidence of guilt for his two crimes this is a second reason why if there is any error in the admission of stipulation this court should find it  have well i guess maybe not off the top of my head but i can still see that there is similar to what happened in the prior argument that there can be defense strategy and doing it through stipulation as opposed to through actual offering the evidence because in that way it's just a single simple sentence that exactly tracks the element of the offense and simply says yes he was convicted of a prior juvenile act but if committed by an adult would be a felony so that the russian really is would a defendant prefer to have the state have to prove this beyond a reasonable doubt stipulating to what this was done here or in other cases or other and you can see a situation where this would be beneficial to the other it's an additional element that has to be proven but is there a difficulty in proving i guess none comes to mind because it medically i mean it's kind of the rationale behind a pretty that usually there's one reason why the prior conviction is the exception to that pretty rule is because a judgment of conviction is regarded as presumably correct and so it's hard to conceive of where that would be contested but about who knows perhaps there is a situation out there i'm certainly it's consistent with the legislative policy of viewing additional criminal acts by felons as being a great arrest to society that is understandably perhaps an element of some offenses that there are no further questions you would ask thank your honour's good morning morning counsel when name is peter carousel and i represent thomas a member of the defendant was charged in this case with carrying a firearm and then unlawful manner and certainly unlawfully defined manner and normally that's simply a misdemeanor you know but what we have here is because of his status as a lie called a juvenile felon status he's a juvenile felon against defense counsel six hands well it's one one one three see says a prior conviction is used to enhance a conviction two or higher level classification then is not an element i may not be disclosed to the jury so you're going from a class a misdemeanor to a class four felony because of his status as a juvenile felon in this court was after i filed my brief this court to study decided people versus and i was reading that decision i was looking at the aggravated do you why statute actually it's just dui and then they have a subsection d called aggravated dui and basically that's statute this is that statute also commingled sentence enhancing factors and elements it contains at least two sentence and hansen factors in the same subsection the i p i has  struction for aggravated dui and it says based on one eleven dash three see that it too was citizen factors are not elements i mean not just goes to the jury and your eyes i see this is a very very informed about that the defendant in this case a juvenile felon was allowed to possess a weapon he could he was allowed to he could hunt there's no problem with that however he gets one break  he messes up if he commits what is misdemeanor u w he's done it's a felony it's elevated to a felony so that is so the legislature i think has given the juvenile a break and he still has that break but isn't  under one eleven three see and again that is the view of the aggravated dui statute of the committee the committee know and i submit if there was a committee know if there was an i p o for this offense they would say that factor d in this situation do you think i mean the legislature in my mind is there any way the legislature intended that the jury be told that let's take this very case these other individuals could have been charged as accomp is there any way that the jury should be told that the defendant is a juvenile felon and the other adult along with them maybe an adult one who's going to get an  enhanced sentence because he's an adult felon but also committed aggravated you w based on his felony status that that would not be disclosed i mean i put forth that example in my brief but i think it's have served to think that they're going to you can't be told that there's an adult felon and then be told that there's a juvenile felon the whole idea of one eleven three see is that um it recognizes after a priority that w cited the case washington in my case which talks about it being a legislative oversight obviously criminal statutes have to be construed in favor of the defendant if there's any ambiguity but this particular factor really where does it belong it belongs in twenty four point one that twenty four point one six there's no doubt about it i mean i can see that i can see that all these other factors are elements but at the same same is true in this court may get the aggravated dui case before it justice karma and there's absolutely no situation where i can think of where the defendant would want to bring in front of the jury prior conviction you know unless he's contesting it's not made but that's something that will be done a sentencing anyway now this court therefore should conclude that factor d is not an element of the status that was juvenile fallon and again i want to i did i was starting to say about what the purpose of this  other crimes evidence prior convictions juvenile felon it always carries the risk of prejudice and we're trying to get away from the jury defense counsel in this case is he's been around a long time mark rose he talked at the trial to the trial judge he said you know judge this is like the old misdemeanor do you was where i a felony dui did you have to prove up misdemeanor dui that's what this is and you know you know and that's exactly what one eleven three see is meant to be it's meant to be a catch all to get rid of this problem for once and for all because i've been on the other side arguing the state failed to prove it out so but this is this is it really is meant to be put to rest and that's what this court can do here now the other argument now and also it doesn't matter in my opinion and in this court's opinion both magazine and walker whether or not the jury was told about the nature of the felony you know calling someone a juvenile felon and i in this case it was possession of stolen motor vehicle well maybe i would rather the jury hear that that's what it was instead of speculating that he was a rapist or or something worse you know something that required automatic transfer which they wouldn't even realize but you know other crimes type evidence is always recognized to be have a high risk of prejudice if it was indeed an element the state is correct under the case law you'd be moving for several months and you know the decision the state cites a page twenty five it's brief court it was conceded at all argument when justice carter was questioning the state that they were not raising a harmless error argument it's not in the petition for leave to appeal there's no trial evidence in the opening brief of the state brief in this case in the supreme court it's in my brief the state simply maintained in its opening brief that the harmless the error was overwhelming that he shot in the direction of someone and provided records sites record and not reviewed the evidence the first time the state reviews the evidence and they said today about a witness testifying less no less than four times and they talk about the detectives testimony the first time that has come up is in the state's reply brief in this court therefore we do asked that forfeiture apply here but in any event the error was prejudicial this is a shooting that occurred of eleven to eleven thirty at night in a rural levy and even taking the state's evidence at bass the one witness to the so called defendant's friend he's testified this shotgun was fired in the air when they barely the jeep was almost entirely over the levee and all you could see was the top of the jeep there's no evidence about the distance that this jeep was the range of the firearm council argue would there be any was was that was the jeep was not hit there was no buckshot there was no shot excuse me found towards the area of the jeep and again it was very very late late at night there were no lights there was a dim fire  hundred yards away from where the defendant fired his balances this jeep is bouncing it's an off road jeep and i don't understand how people driving away with headlights can see what's behind them in the dark  element and even if it is even a thought the court considers the state's carmel's their argument the or was prejudicial it is your i don't recall you discussing people versus robinson i'm i'm somewhat familiar but i think i talked about it in my brief and it best if you're going to say that under strict stright statutory construction it's an element then you have to look at the intent of the legislature what was the intent behind want to love and three see did the legislature really intend that the jury be told that some of the juvenile felony and that an adult is not a prior felony in the same case it makes no sense elements just sentence and hansing so if this court were to adopt the state's position it would be pretty much unique position and given that i don't think that the argument it didn't affect because of that it's harmless but that's not that doesn't that doesn't wash given the other cases which recognize that the jury is not likely to follow the instruction the prejudice is there no matter what offenses you're being tried on  the prior conviction was an element of the offense the opposing counsel is essentially seems to argue that one eleventh received means that there is never are hard you're hardly ever an appropriate situation in which a prior conviction is not a sentence enhanced meant but this is more than a question of numbers because i would certainly agree that i found five examples where prior conviction is an element of the offense and there are numerous examples of where prior conviction is a sentence enhanced meant but neither a norah jones nor one eleven three c prohibits a prior conviction from ever being an element of the offense so that is not a bar to the legislature making that choice importantly this court in people versus lucas at page one eighty three one hundred one actually held that one eleven three see is not applicable to cases where a prior conviction is an element it is only applicable if it's in sentence and handsome and so this court has already acknowledge that sometimes it's a sentence enhanced and sometimes it's an element just the fact that more often it's a sense unhandsome it should not affect the analysis here especially given the plain language we have notably the location of the factor and the fact that it was not put as an enhancement to simple u w now importantly all men doris torres fits squarely within the people's proposed approach because in that case there was a subsection defining the offense the offen there was really entry of a removed alien and subsection be a later subsection provided an enhanced sentence if that person had been removed or deported because of an aggravated felony and the court in aman doris to found that to be a sentence enhanced meant because subsection c the or excuse me it was subsection b only addressed sentence and subsection a had to find the offense and that is exactly the position that people are seeing here look at the subsection that defines the offense and if that's where the prior conviction is located then it's an element and if it's located later on that's talking about sentence then that's when it's a sentence and hanson and that is one section one eleven three c does apply now again defendant does not directly address i don't believe in his argument the situation of u w of a felon who possesses a machine gun because nobody is allowed to possess a machine gun under the statutes in illinois and that is a situation where the other conduct is criminal and yet under consolidates this court unqualified had an unqualified holding that the prior conviction is an element of the offense therefore his proposed framework simply does not work in that situation the legislature hasn't done that very often and because the legislature has a legitimate policy interest in being more concerned about societal safety where it's a felon who is committing other conduct that it's concerned about that that is an appropriate legislation of crimes and the fact that there are many more situations where the legislature meant it to be a sense unhandsome it shows that the legislature has acting carefully in that regard certainly also i'd like to address is your position there's no i have a degree there is no ambiguity and i would like to address his example oh evening oh yeah that is our position there is no ambiguity by putting it in the initial definitional subsection which is consistently throughout the criminal code the legislature's way of showing elements persistence and hands and that is a clear indication of legislative intent about which there is no ambiguity and i'd like to address his aggravated dui example that he raises there is supplemental authority now he points i number twenty three point thirteen which is the definition of dui and notes that the committee comments addressing subsection d which describes aggravated dui is being an example where there's a list that includes some elements and some sentence enhanced mintz according to the committee comments but this court last year actually addressed and rejected that in the case of people versus van showing a two thousand and nine case it is true the committee comments point to cases from that this court held that there is one offense of dui and noted specifically that subsection a provides the definition of driving while under the influence this court pointed to subsection c and says that contain sentence enhanced ment's and this court pointed to subsection d d and noted that yes it describes aggravated dui as being subsection a normal dui plus a different additional circumstance but that raises it to a comments as not you have been adjusted in light of this court's very recent decision and choice but this court has already rejected that example and that again is consistent with the people's approach that is the initial subsection that has the elements and it is the later subsections that have sentence enhanced mintz and i'd like very briefly to address forfeiture since defendant focused on that a little bit it's important to note that the appellate court oral argument the state did not concede that any error was harmful what the state said was we had acknowledge that we are not raising a harmless error issue and those are two very notably different positions it is true and history noted that the counsel there did not press the issue of forfeiture but that was not there was sort of dicta in that discussion because instead this court was simply noting that this court has discretion to excuse forfeiture and that's appropriate to do so when the issues are intertwined and that is what we have here and as for the harmless error regarding the evidence of guilt i'd like to note that the statute for aggravated discharging a firearm does not as does not require the showing of a particular distance it does not require a showing of actually hitting a vehicle as it's fleeing the provision only prohibits the discharge of a firearm in the direction of a vehicle that the defendant knows to be occupied and the testimony compellingly demonstrated that