2017 IL App (3d) 160503

Opinion filed September 6, 2017 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

JEREMY R. THOMPSON, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court

of the 13th Judicial Circuit,

La Salle County, Illinois, 

Appeal No. 3-16-0503 

Circuit No. 15-CF-414 

Honorable 

H. Chris Ryan, Jr.,

Judge, Presiding. 

_____________________________________________________________________________

JUSTICE McDADE delivered the judgment of the court, with opinion. 

Justices O’Brien and Wright concurred in the judgment and opinion. 

_____________________________________________________________________________

OPINION

¶ 1 Defendant, Jeremy R. Thompson, challenges his convictions, arguing that the circuit

court erred in allowing an officer to testify as to ballistics results without sufficient foundation. 

We reverse and remand for a new trial.

¶ 2 FACTS

¶ 3 Defendant was charged with (1) possession of a firearm by a felon (720 ILCS 5/24-1.1(a) 

(West 2014)); (2) aggravated assault (720 ILCS 5/12-2(c)(5) (West 2014)), in that he “knowingly 

shined a laser gun sight that was attached to a firearm, so that the laser beam struck the 

immediate vicinity of Deputy Aaron Hollenbeck”; and (3) aggravated assault (720 ILCS 5/12-
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2(c)(6)(i) (West 2014)), in that he pointed a firearm at Hollenbeck, knowing Hollenbeck was a 

peace officer, placing Hollenbeck in reasonable apprehension of receiving a battery. 

¶ 4 A jury trial was held at which the evidence established that just after 10 p.m. on 

September 13, 2015, Hollenbeck and Deputy Matt Moore were dispatched to an apartment 

building based on a theft complaint. They were advised by dispatch that there was a warrant out 

for one of the tenants of the apartment building. They arrested the tenant. As they were walking 

to the squad car, Hollenbeck and Moore noticed a green light bouncing off the building and 

hitting the squad car. They looked up to see where the light was coming from and saw defendant 

holding a rifle about 40 to 50 feet away on the other side of a fence. A woman was tugging on 

defendant’s arm, causing the laser from the rifle’s scope to move around. Hollenbeck yelled at 

everyone outside of the apartment building to get down. He then yelled multiple times at the man

to drop the gun. Hollenbeck thought he was going to get shot. The man and woman both took off 

running in the opposite direction. Hollenbeck and Moore ran after defendant and the woman with 

their guns drawn. They then saw defendant and the woman come back into view without the gun. 

Hollenbeck told them to freeze and put up their hands. He then patted down defendant. He did 

not find any weapons on him. Hollenbeck asked defendant where he placed the rifle, and 

defendant responded, “I stuck it up my ass, why don’t you try looking there.” Defendant was 

placed in handcuffs. Hollenbeck searched the area and found the rifle underneath a camper trailer 

about 40 feet away. The gun turned out to be a .22-caliber pneumatic rifle that was not loaded. 

¶ 5 The State called Detective Sergeant Adam Diss to testify regarding the muzzle velocity 

of the pneumatic rifle in order to establish that it was considered a firearm. See 720 ILCS 5/2-7.1 

(West 2014); 430 ILCS 65/1.1 (West 2014). Proving this essential element of all three of the 

charged offenses required a showing that the velocity of a projectile from the muzzle of the air 
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rifle was 700 feet per second or greater. Diss testified that he worked in the investigations unit of 

the La Salle County Sheriff’s Office and was a master firearms instructor with the Police 

Training Institute in Champaign and a part-time gunsmith. In his personal time, Diss collects and 

repairs firearms and reloads his own cartridges and chronograph cartridges. He discussed his 

experience using a chronograph to test a firearm’s muzzle velocity. He said a chronograph is “an 

electronic device that you fire over the top of it and it measures the speed of the round, the 

velocity of the round.” He had been using a chronograph “in [his] personal time” for 20 years. 

The State asked Diss, “In the firearms industry, what is the industry standard method in 

measuring of muzzle velocity?” Diss stated, “The industry uses chronographs to check the 

rounds.” Diss stated he had owned a chronograph for approximately 10 years and used his 

friends’ chronographs prior to that. He had used a chronograph “[s]everal dozens” of times 

through his experience with firearms. To gauge the accuracy of the chronograph, Diss said he 

“fired [his] chronograph with friends’ chronographs and found it to be consistent with theirs, and 

[he] fired factory loaded ammunition over it and found it to be consistent with factory loads.” He 

checked his chronograph in this manner within six months of performing the tests for this case. 

He never found it to be inaccurate. 

¶ 6 Defense counsel objected to the foundation for Diss’s testimony regarding the tests Diss 

performed with the chronograph. Outside the presence of the jury, the State and defense counsel

questioned Diss regarding his education and training in firearms and the use of the chronograph. 

Diss stated that he did not have any formal degrees, formal training in forensic science, or any 

formal training “with regard to ballistic measuring of speed of firearms.” When asked when he 

last calibrated his chronograph, Diss stated, “You don’t calibrate personal chronographs.” He did 

not consult any documentation to ascertain whether his chronograph was properly calibrated. He 
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knew there were standards for calibrating chronographs, but he did not know what they were. 

Diss was unaware of national standards for using a chronograph to test the speed of bullets. He 

was further unaware of the National Institute of Standards in Technology. Diss again stated that 

he checked his chronograph against his friends’ chronographs, but he said he did not know when 

or if their chronographs were calibrated. 

¶ 7 Diss stated that when he used his chronograph in this case, the gun was not fixed, but he 

remained in the same position. He did not know the wind speed, the humidity, or where the wind 

was coming from during the time he tested the firearm. He did not know the standard for 

recording wind resistance as he “didn’t think it was an issue.” Diss stated he did not base his 

examination on any generally accepted scientific methodology, but only on his knowledge of his 

chronograph. When using the chronograph, Diss placed it 10 feet away from the firearm and 

fired 10 shots. He said he uses the same methodology each time based on his experience. He 

always fired the slowest possible pellets. Diss said he was unaware of any other methodology 

that would be relevant to its accuracy. Diss said he did not call the Illinois State Police for 

guidance as to the methodology to conduct a ballistics test or send the gun for velocity testing at 

the Illinois Crime Lab because “[t]hey do not offer velocity testing because they say they cannot 

calibrate a chronograph.” He further did not consult the National Rifle Association or any other 

industry standard organization for the methodology. He based his method solely on his 

experience, uninformed by technical standards. 

¶ 8 The court allowed Diss’s testimony, stating, “I’ll let him give his opinion on it. Whether 

or not you’re going to get past a directed verdict is a whole other question.” The jury was 

brought back in, and Diss testified that he fired 10 rounds of the .22-caliber air rifle over the 

chronograph, using the “slowest possible pellets.” The velocity of the 10 rounds ranged from 714 
5 

to 741 feet per second, which was sufficient to designate the pneumatic rifle as a firearm. See 

720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Diss agreed that if his 

chronograph were even 5% inaccurate, the velocity of 8 of the 10 rounds would be less than 700 

feet per second. If the velocity of the pneumatic rifle was under 700 feet per second, it would not 

qualify as a firearm under the statute, and therefore, defendant could not be convicted of the 

three offenses. See 720 ILCS 5/2-7.1 (West 2014); 430 ILCS 65/1.1 (West 2014). Diss did not 

know how accurate his chronograph was. Diss further testified to his experience, methodology, 

and use of the chronograph as he had previously. 

¶ 9 After Diss’s testimony, the State admitted into evidence a certified copy of defendant’s 

conviction for criminal trespass to property, a Class 4 felony. The jury found defendant guilty of 

all three counts. Defendant was sentenced to a two-year term of imprisonment in the Department 

of Corrections. 

¶ 10 ANALYSIS

¶ 11 On appeal, defendant argues that the circuit court erred in allowing Diss to testify as to 

the chronograph results without sufficient foundation. Because Diss did not establish the 

accuracy of the ballistic testing, we find that the foundation was insufficient for Diss’s testimony 

regarding the ballistics results.

¶ 12 At the outset, we note that the State argues that defendant has waived the above argument 

as he failed to cite authority. The State acknowledges that defendant cited Illinois Rules of 

Evidence 702 (eff. Jan. 1, 2011), and a case included in the comment to the rule, but notes that 

defendant does not explain how the rules apply in this case. We agree with the State’s 

assessment of defendant’s argument; however, we note that waiver is a limitation on the parties, 

not the court. People v. Collins, 301 Ill. App. 3d 529, 531 (1998) (citing Herzog v. Lexington 
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Township, 167 Ill. 2d 288, 300 (1995)). Here we believe the interest of justice requires that we

consider the merits of defendant’s appeal.

¶ 13 “[W]hen expert testimony is based upon an electronic or mechanical device *** the 

expert must offer some foundation proof as to the method of recording the information and proof 

that the device was functioning properly at the time it was used.” People v. Bynum, 257 Ill. App. 

3d 502, 514 (1994). Such proof is necessary to ensure that the admission of expert scientific 

testimony based upon a testing device is both relevant and reliable. Id. The expert must show that 

the electronic or mechanical device was in good working order when it was used by explaining 

how the machine is maintained and calibrated and why the expert knows the results are accurate. 

Compare People v. Raney, 324 Ill. App. 3d 703, 708-10 (2001) (expert failed to testify that gas 

chromatography mass spectrometer (GCMS) was working properly, that any testing was done to 

assess the condition of the machine, or that the accuracy of the machine was tested), Bynum, 257 

Ill. App. 3d at 514 (expert failed to testify that GCMS machine was calibrated and that the results 

were accurate), and People v. Smith, 2015 IL App (1st) 122306, ¶ 43 (expert did not testify that 

breathalyzer performed accurately or was certified as accurate), with People v. Berrier, 362 Ill. 

App. 3d 1153, 1160-61 (2006) (expert testified that GCMS was calibrated before testing and was 

functioning properly), People v. DeLuna, 334 Ill. App. 3d 1, 21 (2002) (expert testified that 

GCMS was calibrated daily), and Washington v. Police Board of the City of Chicago, 257 Ill. 

App. 3d 936, 939 (1994) (expert testified how GCMS machines were calibrated). 

¶ 14 If an expert (1) fails to testify that the machine used was working properly, (2) does not 

indicate whether any testing was done to assess the operating condition of the machine, or (3) 

fails to explain how the machine was calibrated, a proper foundation for the admission of the 
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results obtained from the machine is not established. Raney, 324 Ill. App. 3d at 708-10. Where 

the required foundation is not established, the expert testimony is inadmissible. Id. at 710. 

¶ 15 Here, Diss testified that he had been using a chronograph personally for 20 years. He 

stated that the chronograph was the industry standard for testing the velocity of ballistics. He had 

no formal training in measuring ballistic speed. To check the accuracy of his chronograph, he 

tested it against his friends’ chronographs and checked it against factory ammunition, which he 

had done within six months of testing the pneumatic rifle in this case. Diss also testified that (1) 

though he knew chronographs could be calibrated, “[y]ou don’t calibrate personal 

chronographs”; (2) he did not know when or if his friends’ chronographs were calibrated; (3) he 

did not know the standards for chronographs; (4) he did not call the Illinois State Police for 

guidance on using the chronograph because they do not offer velocity testing; (5) he did not send 

the gun to the Illinois Crime Lab for testing because they could not calibrate a chronograph; and 

(6) he did not consult anything to determine if his chronograph was calibrated. Therefore, Diss 

failed to establish with any reliability that the chronograph was working properly and that the 

results were accurate.

¶ 16 Further, Diss’s use of the chronograph to test the pneumatic rifle was solely based on his 

experience and not on any generally-accepted methodology. He did not place the gun in a fixed 

position. He did not know the wind speed, wind direction, or the level of humidity on the day he 

shot the gun, nor did he know the standards for recording wind resistance. Because the expert 

failed to demonstrate the accuracy of the chronograph and its test results, the State did not 

“establish the necessary foundation proof for admitting the expert opinion” (Raney, 324 Ill. App. 

3d at 710), and the court abused its discretion in admitting Diss’s testimony regarding the 
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ballistics results. See People v. Williams, 238 Ill. 2d 125, 136 (2010) (applying an abuse of 

discretion standard for a foundational challenge to the admission of expert testimony). 

¶ 17 Having determined that the court erred in admitting Diss’s expert testimony regarding the 

ballistics results, we must now determine the appropriate remedy. See Smith, 2015 IL App (1st) 

122306, ¶ 45. “The prospect of retrial raises double jeopardy concerns and requires us to assess 

the sufficiency of the evidence against defendant.” Id. ¶ 46. “Although the double jeopardy 

clause precludes the State from retrying a defendant after a reviewing court has determined that 

the evidence introduced at trial was legally insufficient to convict, the double jeopardy clause 

does not preclude retrial of a defendant whose conviction has been set aside because of an error 

in the proceedings leading to the conviction.” People v. Olivera, 164 Ill. 2d 382, 393 (1995). 

Stated another way, if the evidence was insufficient to convict defendant, then we must reverse 

his conviction outright. However, “ ‘[i]f the evidence presented at the first trial, including the 

improperly admitted evidence, would have been sufficient for any rational trier of fact to find the 

essential elements of the crime proven beyond a reasonable doubt, retrial is the proper remedy.’ ” 

(Emphasis in original.) Smith, 2015 IL App (1st) 122306, ¶ 46 (quoting People v. McKown, 236 

Ill. 2d 278, 311 (2010)). 

¶ 18 In order to be convicted of possession of a firearm by a felon, the State had to prove that 

defendant (1) had been convicted of a felony and (2) knowingly possessed a firearm “about his 

person or on his land or in his own abode or fixed place of business.” 720 ILCS 5/24-1.1(a) 

(West 2014). A certified copy of defendant’s felony conviction was entered into evidence. Thus, 

the first element was proven. Under the Criminal Code, a firearm has the same meaning as 

ascribed it under the Firearm Owners Identification (FOID) Card Act. 720 ILCS 5/2-7.1 (West 

2014). Under the FOID Card Act, the term firearm includes a pneumatic gun, as long as the 
9 

pneumatic gun does not have “a maximum muzzle velocity of less than 700 feet per second.” 

430 ILCS 65/1.1 (West 2014). Stated another way, in order to prove defendant was in possession 

of a firearm, the State had to prove that the pneumatic rifle had a muzzle velocity of 700 feet per 

second or more. As stated above, when determining whether the State met this burden, we 

consider the improperly admitted evidence. Smith, 2015 IL App (1st) 122306, ¶ 47. The results 

of Diss’s chronograph testing showed that the pneumatic rifle had a velocity of over 700 feet per 

second. 

¶ 19 To convict the defendant of the first count of aggravated assault, the State had to prove 

that he committed an assault and “[k]nowingly and without lawful justification shine[d] or 

flashe[d] a laser gun sight or other laser device attached to a firearm, or used in concert with a 

firearm, so that the laser beam [struck] near or in the immediate vicinity of any person.” 720 

ILCS 5/12-2(c)(5) (West 2014). A person commits an assault when “he or she knowingly 

engages in conduct which places another in reasonable apprehension of receiving a battery.” 720 

ILCS 5/12-1(a) (West 2014). For the second count of aggravated assault, the State had to prove 

that defendant committed an assault by “[using] a firearm, other than by discharging the firearm” 

against a peace officer “performing his or her official duties.” 720 ILCS 5/12-2(c)(6)(i) (West 

2014). Here, the evidence showed that defendant shined the laser from the gun in the direction of 

the officers that were on duty at the time. Hollenbeck testified that he was afraid he was going to 

get shot. Further, as stated above, the State proved, with the improperly admitted evidence, that 

the pneumatic gun was a firearm for purposes of the statute. Viewed in the light most favorable 

to the State, the evidence at trial was sufficient for a rational trier of fact to find defendant guilty 
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of possession of a firearm by a felon and both counts of aggravated assault. Therefore, there is no 

double jeopardy impediment to retrial, and we remand for a new trial.1

¶ 20 CONCLUSION

¶ 21 The judgment of the circuit court of La Salle County is reversed and remanded. 

¶ 22 Reversed and remanded.

 1

In light of our above holding, we offer no opinion on defendant’s alternative issues on appeal.