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A p p e l l a t e C o u r t

People v . Leac h , 2011 IL App (1st) 090339

Appellate Court Caption THE PEOPLE OF THE STATE OF IL L INOI S, Plaintiff-Appe l lee, v. RONALD LEACH, Def

endant- Appellant.

District & N o. First District, Second D ivision Docke t No. 1–09–0339

Filed {Rehea ring den. etc .} May

31, 2011
J une 28, 2011

Held ( Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On appeal from def endant' s convictions for second- deg ree murder and
ag g ravated discharg e of a firea rm, the appellate court held that the trial
court did not err in wi t h d ra wing its orig inal instruction on ag g ravated d i schar g e of a firea

rm and repla cing it with a new instruction af t er t h e jury had beg un deliberating, since the jury submitt ed a question as to whether the charg e of a g g ravated dischar g e of a firea rm only applied to defe ndant shooting in the direc tion of just one of two victims and the trial

co urt responde d by substitut ing the orig inal instruction with t h e instruction in which the name of the second vict im was remove d and repla ced by the g ener al term “anothe r person” and this supplemental instruction was not an abuse of discretion, nor did it intr o d u ce a new theory of l iability
, espec ially when the ide ntity of the victim was not an element of the offe nse, and further
, defe ndant' s alternative arg ument that the instruction expanded the class of victims to include second- d egr ee murder victim and in doing so v i olated one-a ct, one-c rime rule was reje cted on the gro u n d that defe ndant did not commit multipl e acts aga i n s t a single victim and the one-a ct, one-c rime rule did not appl y ; howeve r, the DNA analy sis fee imposed on defe ndant was vacated wher e he had alre ady submitt ed h i s DNA for analy sis pursuant to an earlier felony conviction.Dec ision Under

Review Appea l f rom the Circuit Court of Cook County
, No. 06–CR–27392; the Hon. Domenica

A. Stephenson, Judge, pr esiding

.

J udg ment Affirmed in part and vacated in part.

Counsel on Appea l Michae l J

. Pelletier, Patricia Unsinn, and L aura A. Weiler, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, Mary P. Nee dham, and Sarah L

. Simps on, Assistant State’s Attorney s , o f counsel), f

or the People.

Panel J USTI CE CONNORS delivere d the judgme nt of the court, with opinion.
Pr esi ding J ustice Cunningham and J ustice Karnezis concur red in the judgme nt and opinion

OP INION

¶ 1 Following a jury trial, defe ndant Ronald L eac h appeals his conviction in the circ uit court of Cook Countyfor a g g ravated dischar g e of a firea rm. On appeal, def

endant c ontends that the trial court er re d b y p ro viding the jury with a new instruction in response to a jury question reg arding the law that should be applied to the case

. Def endant also challeng es the imposit ion of a $200 DNA analy sis fee as part of h i s s en t en ce

. We aff irm defe ndant' s conviction, but we va cate the DNA analy sis fee.

¶ 2 I . BA CKGROUND ¶ 3 This a

ppeal arises out of the events surrounding the shooting death of Nicole Whit e on November 13, 2006. On that evening
, Corey Clay was selling cocaine on behalf of defe ndant when a customer approa ched Clay in a vehicl e an d at tempted to purcha se sever al bag s of

cocaine. Clay did not have enoug h bag s left to fill the order
, so he asked Nicole Whit e, who

was sitti ng on a porch near by
, to loan him sever al bag s of cocaine. Nicole ag ree d, but when Clay g ave the customer the dr ug s, the customer dr ove off without pay ing. ¶ 4 Whil e Clay and Nicole wer e arg uing abo u t wh o wo u l d t ak e t h e l oss on the drug s, defe ndant approa ched and intervene d. Def endant told Nicole that she would have to take the loss beca use she was not supposed to be selling any thing in that are a. Nicole became ang ry

-2-and beg an arg uing with defe nd an t, and the alterc ation quickly became phy sical. Although

defe ndant was 5 fee t 7 inches and we i ghed 173 pounds, Nicole was 5 fee t 6 inches and weig hed about 251 pounds. Both defe ndant and Nicole struck eac h other, and when onlookers attempted to brea k up the fig ht, Nicole spray ed mace in defe ndant' s fac e and ey es. ¶ 5 Def

endant fled to his cousin' s near by apa rt m en t and Nicole went to a separ ate ne arby
apartment. At the apartment, Nicole retrie ved a small knife from the kitchen. She also called her brother Anthony Whit e and explained what had happene d. At some point, Nicole left the
apartment and met up with sever al other individuals and her brother Anthony in the vicinity of the a ltercation with defendant. ¶ 6 About half an hour or so afte r the initial alterc ation, defe ndant and his cousin approa ched Nicole and the individuals who wer e with her. The testimony at trial was somewhat unclea r about th e exact number of people in the are a at this time, but there appea r to have been at least four other people in the immediate vicinity in addition to Nicole and defe ndant. When defe ndant approa ched, Nicole beg an arg uing with him ag ain and phy s i ca l l y attacke d him. There were some discrepancies in the testimony of v arious witnesses about whether she struck defe ndant with her fists or not, or whether Nicole was holding the knife at this point. The knife was later re cover ed at the sc ene, w hereit was ly ing f ound on the ground nex t to the can of mac e. ¶ 7 Nicole ag ain produce d her can of mace and spray ed it in defe ndant' s fac e and ey es, and defe ndant backe d up and put his hands over his fac e in o rd er to protec t himself from the
spray . Def

endant then remove d a handg un from his jacke t, pointed it at Nicole, and pulled the trig g er twice. Nicole was struck in the chest by both bullets and later died of her wounds. At this point, the testimony is unclea r as to the prec ise sequenc e of events, but it is clea r that defe ndant fired his g un at least one more time with the bullet trave ling toward the g roup of onlookers, whi c h in c lu d e d Nicole' s brother Anthony Whit e. Def endant fled the scene but was appre hended a

short time later. ¶ 8 Def

endant was subsequently char g ed by indictment with first-deg ree murder in the death of Nicole Whit e, and with attempted first-deg ree murder and ag g ravated discharg e of a firea rm for her brother Anthony Whit e. Def endant asserted self-de fense
, and the case was tried before a jury

. During the j ury instructions confe renc e, the parties ag ree d that the j ury should rec eive a slightly modified version of the I llinois Patte rn J u ry I n struction for
ag g ravated dischar g e of a firea rm, which re ad as f

ollows:

“To sustain the char g e of ag g rava ted discharg e of a firea

rm, the State must prove the following propositions:

First: That the de fendant knowingly discharg ed a f

irea rm; and

Second: That the defe ndant discharg ed the firea rm in the direc t i o n o f Ant hony Whit e.”

This instruction was based on I llinois Pattern J ury I nstructions, Criminal, No. 18.12 (4th ed. Supp. 2008) (her einaf

ter I PI Criminal 4th No. 18.12 (Supp. 2008)), with the only differ ence

-3-being that the standar d instruction rea ds “anothe r per son” rather than “ Anthony Whit e.” ¶ 9 During deliberations the jury sent out a qu es t i o n t o t h e co u rt that rea d, “Doe s the Aggr av at ed Dischar g e char g e apply only to shooting in the direc tion of Anthony Whit e? ” After discussing the question with the parties, the trial court determined that the name of the victim is not a require d part of the instruction on this char g e. Over defe ndant' s objection, the trial court withdrew the orig inal instruction from the jury and repla ced it with one that rea d “anothe r person.” The jury rene wed its deliberations and returne d a verdic t a short time later. The jury found defe ndant g uilty of second- deg ree murder for Nicole Whit e and acquitted him of attempted first-deg ree murder for Anthony Whit e, but the jury found him g ui lty of
ag g ravated dischar g e of a firea rm. ¶ 10 Following posttrial motions, the trial court sentenc ed defe ndant to consec utive sentenc es of 12 y ear s' incar cer ation for the second- deg ree murder conviction and 6 y ear s' incarcer ation for the ag g ravated discharg e of a firea rm conviction. The trial court also ordered defe ndant
to submit a DNA sample for testing and to pay a $200 DNA analy sis fee pursuant to section 5–4–3 of t he Unified Code of C orre ctions (730 I L CS 5 / 5 –4–3(j) (W est 2008)). Defe ndant timely filed a notice of appeal, and this case is now befor e us. Def endant does not challeng e his second-de g reemurder c onviction on appea l.

¶ 11 I I . ANALYSI S ¶ 12 Def

endant raises three issues on appeal, namely
, (1 ) t h at the repla ceme nt of the jury instruction f

or ag g rava

ted discharg e violated his rig ht to make a c losing a rg ument, (2) that his conviction for both second- deg ree murder and ag g ravated discharg e of a firea rm violated the one-a ct, one-c rime rule, and (3) that the trial court should not have im p o s ed t h e $ 2 0 0 DNA analy sis fee.

¶ 13 A. J ury Instruction ¶ 14 Def

endant' s primary arg ument on appeal is that the trial court err ed by withdrawing the orig inal jury instruction for ag g ravated discharg e of a firea rm and repla cing it with a new one afte r the jury had alre ady beg un deliberating. Def endant asserts that the trial court wrong ly injected an entirely new theory of liability into the case aga i nst which defe ndant had no chanc e to def

end himself bec ause the casehad alr eady been submitted to the jury

. ¶ 15 J ury instructions must be settl ed before cl osing arg uments. See 735 IL CS 5/ 2–1107(c) (West 2008); I ll. S. Ct. R. 451(c) (ef f. J uly 1, 2006). Howeve r, the jury is entitled to rec eive further instruction if it has a question during deliberations. See People v. Childs
, 159 I ll. 2d 217, 228 (1994). Our

supreme c ourt has summarized how this situation shoul d be handle d as follows:

“The g ener al rule when a trial court is fac ed with a question from the jury is that the

cou rt has a duty to provide instruction to the jury when the jury has posed an expli cit

-4-question or re quested c larification on a point of law arising from the fac ts about which there is doubt or confusion. [C itation.] Neve rtheless, a trial court may exerci s e its discretion to ref

rain from an s we ri ng a jury question under appropriate circ umstances. [C itation.] Appropriate circ umstances include wh en the instructions are rea dily understanda

ble and sufficie ntly ex plain the rele vant law, wher e further instructions would serve no useful purpose or would potentially mislead the jury
, when the jury ' s inquiry involves a question of fac t, or wher e the g iving of an answe r woul d ca u s e t he
court to express an opinion t h at woul d likely direc t a verdic t one way or another

. [C itation.] Fur

ther, the court should not submit new char g es or new theories to the jury afte r t he jury commences its deliberations.” People v. Millsap
, 189 Ill. 2d 155, 160-61 (2000).

Moreove r, when a trial court decide s to answe r a jury ' s question, it must do so corr ectly and “must not miss tate the law .” People v . Gray , 346 I ll. App. 3d 989, 994 (2004). ¶ 16 Determining the propriety of the trial court' s response to a jury question ac co rd i n gl y require s a two-step analy sis. First, we must determine whether the trial court should have

answe red the jury ' s question. We r eview the trial court' s decision on this point for abuse of discretion. See Millsap
, 189 I ll. 2d at 161. Second, we must determine whether th e trial court' s response to the question was corr ect. Be cause this is a question of law, we revie w this issue de novo . See Gray , 346 I ll. App. 3d at 994. ¶ 17 Reg arding the first issue, the jury in this case asked, “Doe s the Ag g rava ted Discha

rg e char g e only

apply to shooting in the direc tion of Anthony Whit e? ” This question meets all three criteria under Millsap for invoking the trial court's dutyto respond. See Millsap , 189 I ll. 2d at 161. First, the jury ' s reque st w as expli cit beca use it wa s about a spec ific char g e in relation to a specific fac t. Second, the construction of a jury instruction is a question of law. Third, t he use o f t h e word “only ” in the questi on implies that the j ury was confused about whether the charg e could apply to people o t h er t han W hite. Consequently
, the t rial court's decision to answe r the jury ' s question was not an abuse of discretion. Cf. Gray
, 346 I ll. App. 3d at 994. ¶ 18 The second issue is more complex. Def endant primarily relies on Millsap
, in which the
supreme court addre ssed a simil ar question to the one prese nted here

. I n that case , the defe ndant was prosec uted for robbery and home invasion only on a theory of direc t liability

. See Millsap
, 189 I ll. 2d at 159. I n response to a question fro m t h e j u ry , h o weve r, the trial
court g ave the jury a supplemental instruction on acc omplice liability

. See id. at 159-60. The
supreme court held that it was err or for the trial court to submit the new instruction to the jury beca use it introduced a new theory of liability into the case , even though the trial court' s response to the jury ' s question was ac curate and c orre ctly stated the law . See id. at 165. ¶ 19 Acc ording ly
, the dispositi ve question in this case is whether the trial c o u rt' s supplemental instruction introduced a n ew t h eo ry of liability

. Millsap does not expli citly define what constitutes a new theory
, but the supreme court' s holding primarily rests on the fac t that the elements for principal and acc omplice liability are differ ent. I n support o f its holding, the
supreme court observe d that “the elements that the State would have had to prove to establish

-5-defe ndant' s g uilt as an acc omplice are differ ent from those nece ssary to prove his g uilt as a

principal.” Id. at 165. B ased on the s upreme court' s rea soning in Millsap , whether the trial court' s instruction c onstitut ed a new theory of liabilitydepends on w hether the elements in the new ag g ravated discharg e instruction differ ed from the elements in the one that the trial court withdrew. Given that the onl y difference betwee n the t wo i n s t ructions i n this case is that the name of the alleg ed victim was remove d and repla ced with the g ener al term “anothe r person,” the question that we must resolve is whether the specific identity of the victim is an element of

the crime of ag g ravated dischar g e of a firea rm. ¶ 20 Although no case has addressed this issue in the contex t of t his particul ar o ff en s e, our supreme court addre ssed it in a simil ar context in People v. Colli ns , 214 I ll. 2d 206 (2005). I n Colli ns , the supreme court e x amined the offe nse of re ckless discha rg e of a firea rm (720 IL CS 5/24–1.5 (West 2002)). See Colli ns , 214 I ll. 2d at 212. The supreme court held that the specific identity of an individual is not an element of rec kless discharg e of a firea rm. See id.
at 220. Rely ing on an analy sis first used in People v. De Kosta
, 132 I ll. App. 2d 691 (1971), the supreme court noted that t h e s t at u t e for the offe nse require s only that the defe ndant' s actions endang er “an i n d i vidual,” rathe r than a specific person. See Colli ns , 214 I ll. 2d at 220-21. Even though in Colli ns the indictment named a specific person and the arg ument at trial had been limit ed to only defe ndant' s actions in relation to that person, the supreme court found that the name of the victim was mere ly “surplussag e” and was not a nece ssary element of the off ense. Id. at 219. ¶ 21 Apply ing the rea soning of Colli ns t o t h e s t at u t e at issue in this case , we find that the

name of a specif

ic victim is not an element of the offe nse of ag g ravated discharg e of a firea rm. Our primary

g oal when interpre ting a

statute is to “ascertain and g ive ef fec t to the

overa ll intent of the draf

t er s ” ( K n o lls Condominium Ass'n v. Harms
, 202 I ll. 2d 450, 458 (2002))
, and “[t] he best evidenc e of leg islative intent is the lang uag e of the statute” ( In re Donald A.G.
, 221 I ll. 2d 234, 246 (2006))

. Moreove r, it is a w ell-settled canon of statutory construction that “whe re the s am e, or substantially the same, words or phrase s appea r in differ ent parts of the same statute they will be g iven a g ener ally acc epted and consistent meaning
, wher e the leg islative in t en t is not clea rly expressed to the contra ry .” Moran v. Katsinas , 16 I ll. 2d 169, 174 (1959). ¶ 22 Def

endant wa s co n v i ct ed o f violating section 24–1.2 of the Criminal Code of 1961, which states that a person is gu i lty of the offe nse when he “[d] ischarg es a firea rm in the direc tion of another person .” (Emphasis added.) 720 IL CS 5/24–1.2(a)( 2) (West 2008). Like the offe nses at issue in Colli ns an d De Kosta
, nothing in section 24–1.2 require s that a specific person be named as the victim. Rather, the plain lang uag e of the statute require s only
two elements to complete the offe nse, namely
, that the defe ndant (1) k n o wi n gly or intentionally dis ch ar ged a firea rm (2) in the direc tion of another person. See 720 IL CS 5/24–1.2 (West 2008). ¶ 23 Although it is true that the offe nse of rec kless discharg e of a firea rm that was at issue in Colli ns ref

ers to “an individual” (720 IL C S 5 / 2 4

– 1 .5 (West 2002)), while ag g ravated discharg e of a firea

rm ref ers to “anothe r person” (720 IL CS 5/24–1.2 (West 2008)), the terms

-6-“individual” and “per son” are eff ectively interchang eable

. Compare Webster' s Third I nternational Dictionary 1152 (1981) (defi n i n g “individual”), with id. at 1686 (def ining “per son”). We can discern no rea son that this minor difference in word choice betwee n these two sections of the Criminal Code should compe l a diffe rent re sult, and we ther efor e must construe them to have a consistent meaning

. See Moran
, 16 I ll. 2d at 174. Consequently
, we h old that the specific identity of a named victim is not an essential element of ag g ravated discharg e of a

firea rm. ¶ 24 When we apply our construction of the statute to the trial court' s action in this case , it is

rea dily appar ent that the trial court did not introduce a new theory of liability by g iving the jury a new instruction. The only differ ence betwee n the two jury instructions here is that one contained the alleg ed victim's name but the other did not. The second instruction contained the same two elements for ag g ravated discharg e of a firea rm as the first instruction, meaning that the new instruc tion was not a new theory of liability . Be causethe victim's name is not

a nec essary

element of

the offe nse, the trial c ourt' s decision to remove it in order to clarify the applica

ble law f or the jury

was not er

ror. ¶ 25 To the extent that defe ndant claims that the t rial court's a ction infring ed on his rig ht to make a closing arg ument, we reje ct this contention. As the supreme court rec og nized in Millsap
, a criminal defe ndant has a constitutional rig ht to make a closing arg ument. See Millsap
, 189 I ll. 2d at 164 (citing Herring v. New York
, 422 U.S. 853, 857-59 (1975))

. The

s u preme court found in Millsap that the defe ndant' s rig ht to make a closing arg ument h ad been violated beca

use the trial court added the new theory of liability afte r the jury had beg un deliberations. S ee Millsap , 189 I ll. 2d at 164-65. ¶ 26 Unlike Millsap
, here the trial court did not introduce a new theor y o f l i ab i l ity afte r closing arg uments. Although the char g ing instrument listed Anthony Whit e as the victim for the ag g ravated discharg e of a firea rm offe nse, this lang uag e was surplussag e and had no role in informing defe ndant of the specific char g e that the State planned to prosec ute him for. See Colli ns , 214 I ll. 2d at 221. Defe ndant was “apprise d of t he nature of the offenseand [was] able to adequa

tely prepa re his defe nse” ( id. ) long befor e closing arg uments occur red, and the trial court' s action did not unexpectedly chang e the theory of liability of which he had alre ady been notified. Def

endant had the opportuni ty to fully addre ss the t heorie s of l iability upon which h e could potentially be convicted in closing arg uments. Consequently
, defe ndant' s rig ht to make a c losing a

rg ument was not violated.

¶ 27 B. O ne-A ct, One- Crime Rule ¶ 28 I n the alterna

tive, defe ndant arg ues that his conviction must be vaca ted beca use it v io la te s the one-a ct, one-c rime rule. See People v. Artis
, 232 I ll. 2d 156, 165 (20 0 9 ) (s t at i n g that multipl e convictions based on a single act are improper)

. Def endant asserts that the revised jury instruction for ag g ravated discharg e of a firea rm expanded the class of potential victims bey ond only Anthony Whit e and allowed the jury to find that he shot in the direc ti o n of Nicole Whit e. De fe n dant further arg ues that, beca use he was convicted of second- deg ree

-7-murder for the death of Nicole Whit e, the one-a ct, one-c rime rule prohibits a simult aneous

conviction for a g g ravated dischar g e of a firea rm with Nicole White as the victim. ¶ 29 Def

endant conce des that he failed to raise this arg ument in a posttrial motion, and he has there fore forf

eited it on appeal. See People v. Pryor
, 372 I ll. App. 3d 422, 4 3 4 (2007) (“It is well settled that a claim that multipl e convictions wer e improper can be waived by failing
to raise the issue befor e the trial court.” ). Howeve r, defe ndant asks us to revie w this issue under the plain-er

ror doctrine. Under t his doctri n e, we may revie w unpreserve d err or onl y wher e either

“(1) a cle ar or obvious err or occurre d and the evidenc e is so closely balanc ed that the err or alone threatened to tip the scale s of justice ag ainst the defe ndant, reg ardle ss of the seriousness of the err or, or (2) a clea r or obvious err or occur

red and th at err or is so serious that it aff

ecte d the fairne ss of the defe ndant' s trial and challeng ed the integ rity of the judicial proce ss, reg ardle ss of the closene ss of the evidenc e.” People v. Piatkowski
, 225 I ll. 2d 551, 565 (2007). ¶ 30 The threshold step in the analy sis is to determine whether an err or occur red. See People

v. Thompson
, 238 Ill. 2d 598, 613 (2010). I f we find that a one-a ct, one-c rime err or occur red, then it is reversible error under t he second prong of t he plain-error doctrine. See People v. Nunez
, 236 I ll. 2d 488, 493 (2010). Howeve r, the one-a ct, one-c rime rule only appl ies to multipl e convic tions for ac ts ag ainst a sing le victim. See People v . Grove r , 93 Ill. App. 3d 877, 881 (1 9 8 1 ). M ultiple convictions are proper when there are multipl e victims. See id. (citing People v . Butler , 64 I ll. 2d 485 (1976)). ¶ 31 Def

endant' s arg ument on this issue is all but bare of citation to rele vant authority and is somewhat unclea

r. Def endant claims that the jury ' s question reg arding the application of the char g e to Anthony Whit e means that it was unsure about whether defe ndant had shot in his direc tion. Acc ording to defe ndant, this uncertainty nece ssarily means that the jury must have convicted him o f aggr avated discharg e of a firearm for shooti ng in the di rec tion of Nicole Whit e. To the extent that defe ndant implies that the new instruction nece ssarily led the jury
to convict him of ag g ravated discharg e of a firea rm for Nicole Whit e in addition to seconddeg reemurder, w e re

ject this contention. ¶ 32 Aside from the comp l et e l ack of supporting authority for this contention, def endant' s arg ument is unsupported by the rec ord. The evidenc e showed th at defe ndant fired at least three rounds, two of which struck Nicole W h i t e an d are the basis for the second- deg ree murder conviction. The third round, howeve r, did not strike Nicole Whit e, and it is this round
t h at the State used to support the ag g ravated discharg e of a firea rm char g e. The evidenc e prese nted at trial demonstrated that the third round trave led toward Anthony Whit e and the individuals in t he g roup that he w as standing with. ¶ 33 It is well settled that “cr imes committed ag ainst separ ate victi m s co n s t i tute separ ate

cr iminal acts.” Pryor
, 372 I ll. App. 3d at 434. Acc ording ly
, even if we assume t h at d ef en d an t 's action of firing his g un three times constitutes only a single act, the evidenc e shows that he committed a criminal act ag ainst at least two different victims: Nicole Whit e and either Anthony Whit e or one of the people who wer e standing with him. Def endant' s contention that the jury ' s question unequivocally demonstrated that it must have found that

-8-all three rounds wer e fired in the direc tion of Nicole Whit e and no one else is completely

speculative. ¶ 34 Be cause the evidenc e shows that defe ndant did not commit multipl e acts ag ainst a single victim, the one-a ct, one-c rime rule does not apply t o defe ndant' s convictions for seconddeg ree murder an d aggr avated discharg e of a firea rm. See Grove r , 93 I ll. App. 3d at 881. There was conseque ntly no plain err or beca use the one-a ct, one-c rime rule was not violated.

¶ 35 C. DNA Ana ly sis Fee ¶ 36 Finally , defe ndant ar g ues that the trial court imprope rly assessed a

$200 DNA analy sis fee as part of his sent en ce

. De fendant asserts that the fee was improper beca use he has previously been convicted of a felony and there fore has alre ady submitt ed DNA for analy sis and bee n assessed the fee . Section 5–4–3(j) of the Unified Code of Correc tions (730 IL CS 5/5–4–3(j) (West 2008)) r equire s that any one convic ted of a felony in Illinois must submi t

a blood, saliva, or tissue specimen to the I llinois State Police for analy sis and must also pay

an analy sis fee of

$200.
¶ 37 This issue is controlled by the supreme court’s rec ent decision in People v. Marshall , 242 I ll. 2d 285 (2011). I n Marshall
, the supreme court held that section 5–4–3 “authorizes a trial
court to order the taking
, analy sis and indexi ng of a qualifying offe nder’ s DNA, and the
payment of the analy sis fee only wher e that defe ndant is not curr ently reg istered in the DNA databa se.” Id

. at 15. Be cause defe ndant in this case has alre ady submitt ed DNA and paid the fee following previous convictions, the trial court’s order imposing the $200 DNA analy sis fee is void. Although the State arg ues that defe ndant has forf eited this issue by failing to raise it befor e the trial cou rt in a post sentenc ing motion, “[a] challeng e to an allege d void order is not subject to forfe iture.” Id. at 14. ¶ 38 The State also arg ues that it is defe ndant' s burden to demonstrate that he has pre viously been c onvicted of a

felony and wa s assessed and paid the DNAanaly sis fee f ollowing that conviction. The State arg ues that defe ndant failed to make a rec ord on those points and that we should there fore resolve this i ssue against him. See Foutch v. O'Bryant
, 99 I ll. 2d 389, 391-92 (1984). Howeve r, the rec ord demonstrates that defe ndant was previously convicted of fe lonies in cases numbe rs 03 CR 2817602 and 98 CR 2393601, both in the circ uit c ourt of Cook County

. Although the rec ord does not indicate whether the fee was assessed in either

o f these cases, the DNA analy sis and fee requireme nt was added by a 1997 amendment t o section 5–4–3 of the Unified Code of Correc tions (Pub. Act 90–130 (ef f. J an. 1, 1998) (ame nding 730 IL CS 5–4–3 (West 1996)))

. This means that the requirement was in eff ect when defendant was fir st convicted of a felony on Marc h 25, 1999, in case number 98 CR 2393601. Be cause section 5–4–3 mandates that any one convicted of a felony must submit

a DNA sample and be assessed the DNA analy sis fee
, we presume that t h e ci rc u it court imposed this re quirement as part of defe ndant' s sentenc e following at least one of his prior convictions. See People v. Gaultney
, 174 I ll. 2d 410, 420 (1996) (“We ordinarily presume that the trial judge knows and follows t h e l aw u n less the rec ord indicates otherwise.” ).

-9-Be cause the rec ord demonstrates that defe ndant was convicted of at least one previous felony

afte r section 5–4–3 became law, it is sufficie nt for the limit ed purpose of demonstrating that the fe e has pr eviously

been a ssessed ag ainst defe ndant.

¶ 39 I I I . CONCLUSI ON ¶ 40 For the rea sons stated above, we aff irm defe ndant' s conviction for ag g ravated dischar g e of a firea rm. Howeve r, we vaca

te the portion of the circ uit court' s sentenc in g order that imposed a $200 DNA analy sis fee under section 5–4–3(j) of the Unified Code of Correc tions (730 IL CS 5/ 5–4–3(j) (West 2008)). ¶ 41 Affirmed in part a nd vacated in part.

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