2017 IL App (3d) 160668

Opinion filed October 24, 2017 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2017 

THE PEOPLE OF THE STATE OF )

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

KEITH R. GULLENS, ) 

 ) 

Defendant-Appellant. )

Appeal from the Circuit Court

of the 13th Judicial Circuit,

La Salle County, Illinois. 

Appeal No. 3-16-0668 

Circuit No. 15-CF-331 

Honorable H. Chris Ryan Jr., 

Judge, Presiding.

_____________________________________________________________________________

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

Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.

OPINION

¶ 1 This case exemplifies the adage: “No good deed goes unpunished.” Defendant, Keith R. 

Gullens, argues that the circuit court erred in revoking his conditional discharge for committing 

the offense of being a felon in possession of a weapon. The evidence at the revocation hearing 

showed that defendant possessed a firearm, which either his younger brother or a friend (the 

record is unclear which) had stolen, for approximately 10 minutes for the purpose of returning 

the firearm to the store. Defendant argues that the affirmative defense of necessity applied to him 

or, alternatively, fundamental fairness required that the court deny the State’s petition to revoke 

defendant’s conditional discharge. We agree. 
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¶ 2 FACTS

¶ 3 Previously, defendant pled guilty to theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)) in 

exchange for a sentence of 30 months’ conditional discharge. As terms of his conditional 

discharge, the court ordered defendant not to violate any criminal statutes and to refrain from 

possessing a firearm or dangerous weapon. Approximately one month later, the State filed a 

petition to revoke conditional discharge. The petition alleged that defendant violated his 

conditional discharge by committing the offense of possession of a weapon by a felon (720 ILCS 

5/24-1.1 (West 2016)). 

¶ 4 The court held a hearing on the State’s petition to revoke conditional discharge. The State 

submitted a certified copy of conviction showing that defendant had been convicted of criminal 

damage to property, a Class 4 felony, in 2012. 

¶ 5 The State called Michael Centko as its first witness. Centko testified that he was 

employed by South Post Guns, a store that sold firearms and related items. On June 20, 2016, 

defendant came to the store. Centko could not remember if defendant had purchased anything, 

but said defendant might have purchased some ammunition. Later that day, defendant returned to 

the store with a Glock 42 and gave it to Centko. Defendant told Centko that his younger brother 

had stolen the gun. Centko reviewed the store’s surveillance footage from earlier that day. The 

video recording revealed that a man who entered the store with defendant stole the Glock 42 

while Centko was in a different area of the store talking to defendant about magazines or 

cleaning brushes. Centko said he had no reason to believe defendant saw the man take the gun. 

The State played the video footage from the security camera in court.

¶ 6 Detective Brad Demoss testified that he learned that a burglary occurred at South Post 

Guns on June 22, 2016. While investigating this incident, Demoss learned of an incident that 
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occurred two days prior in which defendant had returned a stolen gun to the store. Demoss

reviewed footage from the store’s security cameras from June 20. Demoss determined that 

Gerald Bumper had stolen the gun. After Bumper grabbed the gun, he handed it to Rashad 

Anchondo. Defendant and Darrell Gullens were in the store when Bumper stole the gun. When 

defendant returned the gun later that day, Anchondo and Shane Rexroad were with him. Demoss 

did not speak to Bumper about the incident because Bumper was murdered shortly after the 

incident. Demoss spoke to defendant about the incident. A video of the interview was played in 

court. 

¶ 7 Demoss opined that as soon as defendant grabbed the gun from Anchondo, he violated 

the law. The following exchange occurred between defense counsel and Demoss on crossexamination:

“Q. Okay. I guess if [defendant] had called the police and said 

—he still would have been in violation of the law as soon as he 

grabbed the gun; is that right?

A. If he would have called the police, in my opinion, when he 

found out that [Anchondo] and [Bumper] had stolen the gun and said 

this is what happened, this is where the gun is, at that point I would 

consider him to be a witness as opposed to a suspect. 

 Q. And you’re saying had he never possessed— 

A. Had he never possessed the weapon. 

Q. Okay. And if he doesn’t, if he doesn’t—it’s all safe to say if 

he doesn’t possess the weapon, he doesn’t have control over that item; 

is that right?
4 

 A. That’s right. 

Q. So, he can’t be sure that that item is going to be there when 

the police show up? The guy could leave; is that right? 

 A. Yes, sir. 

Q. And it’s also fair to say that it takes a certain type of 

criminal to actually steal a gun. That’s a serious crime; right?

 A. I believe so, yes. 

Q. And the type of person that is willing to reach behind the 

counter and take a Glock, that’s the type of person that could also be 

capable of violence?

 A. Potentially, yes, sir. 

Q. Okay. And it’s fair to say that reporting to the police that 

that happened could have potentially, from his perspective, 

[defendant’s] perspective, subjected him to violence; isn’t that right? 

A. Yes, sir.

Q. And I guess overall, overall arching, arching thing that we 

are dealing with here, it’s certainly better that the gun was returned to 

the person that owned it than staying out on the street. Can we all 

agree to that?

A. I can agree to that.”

¶ 8 The State rested.

¶ 9 Defendant moved for a directed verdict, arguing that the State’s evidence supported a 

necessity defense. Defendant contended that he took the gun from Anchondo in order to return it 
5 

to the store because he did not want it in the public. Defendant argued that by possessing the gun 

for a few minutes, he avoided a public harm significantly greater than him possessing a firearm. 

The State argued that the necessity defense did not apply because defendant failed to establish 

that an actual real harm was going to occur if he did not return the gun to the store. The court 

denied the motion for a directed verdict. 

¶ 10 Defendant called Damires DeLeon, the mother of his children, as his first witness. 

DeLeon testified that on the day of the incident, she asked defendant to go out and compare the 

costs of guns. DeLeon’s father had recently obtained a firearms owner’s identification (FOID) 

card, and DeLeon wanted to give him the money to buy a gun as a gift. 

¶ 11 Rexroad testified he attended a party with defendant and Anchondo on the date of the 

incident. Anchondo pulled out a gun and showed it to Rexroad and defendant. Defendant became

upset and asked Anchondo where he obtained the gun. Anchondo told defendant he had taken it 

from the store. Defendant said he would take it back. Defendant immediately returned the gun to 

the store. Anchondo and Rexroad went with defendant to return the gun. The drive to the store 

took approximately 5 to 10 minutes. 

¶ 12 Defendant testified that he went to South Post Guns on the date of the incident because 

DeLeon had asked him to determine the approximate cost of a gun. DeLeon wanted to purchase 

a gun for her father. Anchondo went with defendant because he wanted to apply for a FOID card.

Bumper also went with them. Defendant testified that Anchondo was not a felon, but Bumper 

might have been a felon. Defendant believed that he purchased a cleaning kit for DeLeon’s father

at the store. Defendant did not purchase any ammunition. When defendant left the store, he went 

to Anchondo’s girlfriend’s house to drop off Anchondo and get high. Anchondo showed 
6 

defendant a gun and said he had stolen it from South Post Guns. Defendant took the gun from 

Anchondo. Defendant returned the gun to the store approximately 5 to 10 minutes later. 

¶ 13 Defendant explained that he returned the gun because he did not want to get into trouble. 

Defendant returned the gun himself because he did not believe Anchondo would return it, and 

everyone he knew with a valid FOID card was at work. Defendant said the gun could have been 

sold in Chicago and used for crime. Defendant explained that his only goal in possessing the gun 

was to return it to the store. Defendant said he did not take the gun to the police because he was a 

felon and he did not want to get in trouble. Defendant testified that he did not participate in the 

burglary that occurred at the store two days later.

¶ 14 During closing argument, defendant argued that the affirmative defense of necessity 

applied. The State contended that the defense of necessity did not apply. The State argued that 

the necessity defense applied only to “real, actual harm” and not “some potential harm that 

maybe falls on someone at some point in time.”

¶ 15 The court found that defendant violated his conditional discharge by being a felon in 

possession of a weapon. The court determined that the defense of necessity did not apply. The 

court reasoned: 

“Whether or not necessity is going to rise to the level, the 

accused has to have a reasonable belief such conduct was necessary to 

avoid a public or private greater harm. 

There is something to be said about this actuality. It has to be 

something present, as opposed to potential future—especially in a 

Petition to Revoke. 
7 

It doesn’t take much. I mean, it’s a lesser standard. It’s not 

beyond a reasonable doubt when the State carries their burden with it. 

I appreciate the argument.

 Just to point out a few things. 

[Defendant] knew that [Anchondo], in his opinion, said 

[Anchondo] is not a felon. And [Anchondo] went back to the store 

with him, and he’s standing next to him. 

Yeah. I’m just, I have some—I think there was other ways that 

it could have been dealt with. I understand what he’s putting forth. I 

can’t say anything else.”

¶ 16 The court resentenced defendant to three years’ imprisonment.

¶ 17 ANALYSIS

¶ 18 Defendant argues that the circuit court erred in granting the State’s petition to revoke his 

conditional discharge because the affirmative defense of necessity applied or, alternatively, 

fundamental fairness required that the court deny the petition to revoke because the purposes of 

his conditional discharge were served by his continued liberty. We address each argument in 

turn. 

¶ 19 I. Necessity

¶ 20 First, defendant argues that the circuit court erred in granting the State’s petition to 

revoke conditional discharge because, although he committed the offense of being a felon in 

possession of a weapon, the affirmative defense of necessity applied to justify his conduct. We 

find that the defense of necessity applied to defendant’s conduct in briefly possessing a stolen 
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firearm to return it to the store, and the circuit court’s finding to the contrary was against the 

manifest weight of the evidence.

¶ 21 At a hearing on the State’s petition to revoke conditional discharge, the State has the 

burden of proving a violation of a condition of conditional discharge by a preponderance of the 

evidence. 730 ILCS 5/5-6-4(c) (West 2016). “[A] revocation of conditional discharge will be 

overturned only when it is contrary to the manifest weight of the evidence.” People v. Smith, 337 

Ill. App. 3d 819, 822 (2003). “A finding is against the manifest weight of the evidence only if the 

opposite conclusion is clearly evident or if the finding itself is unreasonable, arbitrary, or not 

based on the evidence presented.” People v. Deleon, 227 Ill. 2d 322, 332 (2008). 

¶ 22 In section 7-13 of the Criminal Code of 2012, the affirmative defense of necessity is 

defined as follows: 

“Conduct which would otherwise be an offense is justifiable by reason 

of necessity if the accused was without blame in occasioning or 

developing the situation and reasonably believed such conduct was 

necessary to avoid a public or private injury greater than the injury 

which might reasonably result from his own conduct.” 720 ILCS 5/7-

13 (West 2016). 

The defense of necessity “is viewed as involving the choice between two admitted evils where 

other optional courses of action are unavailable [citations], and the conduct chosen must promote 

some higher value than the value of literal compliance with the law [citation].” People v. Janik, 

127 Ill. 2d 390, 399 (1989).

¶ 23 Here, the State does not dispute that defendant was without blame in occasioning or 

developing the situation that resulted in the theft of the gun. Defendant testified that he did not 
9 

know that Bumper and Anchondo had stolen the gun until after they left the store. Centko 

testified that, after reviewing the video recording from the security camera, he had no reason to 

believe defendant saw Bumper take the gun. Additionally, the evidence showed that defendant 

reasonably believed that returning the gun was necessary to avoid a greater public or private 

injury than committing the offense of being a felon in possession of a weapon. Defendant 

explained that he did not want to get into trouble for the theft of the gun, and he believed the gun 

could have been sold in Chicago and used for crime. Returning a stolen firearm to its rightful 

owner undoubtedly promoted a higher value than refraining from being a felon in possession of a 

weapon for the 10 minutes it took to return the gun to the store. 

¶ 24 We also find that defendant established that there were no other courses of action 

available to him. Defendant testified that he did not believe Anchondo would return the gun on 

his own because he had helped steal it. This belief was reasonable. Defendant also said that he 

did not know anyone available with a valid FOID card to return the gun. Had defendant called 

the police and reported the stolen gun without taking possession of the gun, it is uncertain that 

the police would have recovered the gun. We acknowledge that both the circuit court and the 

State have taken the position that there were other alternatives available to defendant. However, 

beyond suggesting the unlikely scenario that Anchondo would have returned the gun himself 

without defendant possessing it, the State gave no explanation as to what other options were 

available to defendant.

¶ 25 We note that our supreme court has held that a defendant must show that he faced a 

“specific and immediate threat” for the necessity defense to apply. People v. Kite, 153 Ill. 2d 40, 

46 (1992). We are inclined to believe that a specific and immediate threat to public safety occurs 

any time a stolen firearm is out on the street, as a stolen firearm may never be transferred legally.
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¶ 26 II. Fundamental Fairness

¶ 27 Defendant alternatively argues that fundamental fairness demanded that the court deny 

the State’s petition to revoke conditional discharge because the purposes of defendant’s 

conditional discharge were served by his continued liberty. While we need not reach this 

alternative argument in light of our above holding, we agree with defendant and address the 

argument in the interest of clarity.

¶ 28 “The issue in a probation revocation proceeding is two-fold: first, whether a probation 

violation actually occurred, and second, whether the purposes of defendant’s probation are being 

served by his continued liberty.” People v. Butler, 137 Ill. App. 3d 704, 712 (1985).

1 “[T]he 

purpose of probation is to benefit society by restoring a defendant to useful citizenship, rather 

than allowing a defendant to become a burden as an habitual offender.” People v. Meyer, 176 Ill. 

2d 372, 379 (1997). “Probation simultaneously serves as a form of punishment and as a method 

for rehabilitating an offender.” Id. One of the goals of probation is to protect the public from the 

sort of conduct that led to a defendant’s conviction. Id.

¶ 29 We note the holding in People v. Clark, 206 Ill. App. 3d 741 (1990). In Clark, the State 

filed a motion to revoke the defendant’s Treatment Alternatives to Street Crimes (TASC) 

probation. Id. at 742. The State presented evidence showing that the defendant failed to keep a 

TASC appointment, and TASC discharged him from the program for having no contact with 

TASC for 30 days. Id. at 742-43. The defendant testified that he was unable to attend his TASC 

appointment because the police arrested him the day before his appointment, and he remained in 

 1

We consider cases concerning revocation of probation interchangeably with cases concerning 

revocation of conditional discharge, as the statutory requirements are virtually the same in either type of 

revocation proceeding. See 730 ILCS 5/5-6-4 (West 2016); People v. Tufte, 165 Ill. 2d 66, 74 (1995) 

(“Revocation of a defendant’s conditional discharge is governed by the same statutory requirements that 

are applicable where the State seeks to revoke a defendant’s probation.”). 
11 

custody for several weeks until the State dropped the charges. Id. at 743. He made several collect 

calls to TASC, but no one would accept the calls. Id. The defendant also asked his public 

defender to call TASC, but he refused to do so. Id. After being released from jail, the defendant 

called TASC and explained the situation. Id. The circuit court revoked the defendant’s probation. 

Id. at 744-45. The Clark court held that the circuit court abused its discretion in revoking the 

defendant’s probation. Id. at 745. The court noted that it was undisputed that the defendant had 

committed a probation violation but found that the purposes of the defendant’s probation—

namely, to obtain treatment for his drug problem—were being served by his continued liberty. 

Id. The court reasoned:

“A revocation of defendant’s probation under these circumstances 

thwarts the fundamental objective of restoring him to useful 

citizenship, frustrates the purpose of the Act, is contrary to the courts’

tendency to interpret the Act to strongly favor rehabilitation and results 

in an unsatisfactory application of the law to the facts of this case.” Id.

at 747. 

¶ 30 Defendant violated his conditional discharge. However, as in Clark, given the unique 

circumstances of the violation, revoking defendant’s conditional discharged “thwarts the 

fundamental objective of restoring him to useful citizenship” and “results in an unsatisfactory 

application of the law to the facts of this case.” Id.

¶ 31 Here, defendant possessed the stolen firearm for approximately 10 minutes. Defendant 

testified that his only intent in possessing the gun was to return it to its rightful owner, and the 

State has presented no evidence to the contrary. Though defendant technically committed the 

offense of being a felon in possession of a weapon for the approximately 10 minutes he 
12 

possessed the gun, defendant acted to avoid the greater harm of the stolen firearm being out on 

the street where it most likely would have been sold and used for criminal purposes. In this way, 

defendant’s possession of the gun actually served to protect the public. We deem this a good 

thing. The facts of this case suggest that but for defendant’s presence and actions, another illegal 

gun would have been in the hands of criminals. We deem that a bad thing. Due to the unique 

extenuating circumstances of this offense, we believe that the purposes of defendant’s 

conditional discharge—i.e., defendant’s rehabilitation and protection of the public—are served 

by his continued liberty. As such, we find that the circuit court’s revocation of defendant’s 

conditional discharge was against the manifest weight of the evidence. Deleon, 227 Ill. 2d at 332. 

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, we reverse the judgment of the circuit court of La Salle 

County revoking defendant’s conditional discharge. We remand for further proceedings 

consistent with this order. 

¶ 34 Reversed and remanded.