2017 IL App (1st) 113085-B 

 SIXTH DIVISION

 MAY 12, 2017 

No. 1-11-3085 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) Cook County. 

 ) 

 v. ) No. 09 CR 13763 

 ) 

CHARLES COWART, ) Honorable 

 ) Thaddeus L. Wilson, 

 Defendant-Appellant. ) Judge Presiding. 

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

 Justices Connors and Delort concurred in the judgment and opinion. 

OPINION

¶ 1 Following a jury trial in the circuit court of Cook County, defendant Charles Cowart was 

convicted of first degree murder under a theory of accountability. Following a simultaneous 

bench trial outside the presence of the jury, defendant was also convicted of being an armed 

habitual criminal (AHC). Subsequently, the trial court sentenced him to 51 years of 

imprisonment for first degree murder and a concurrent 20-year sentence for the AHC conviction. 

On appeal, this court reversed both the first degree murder conviction and the AHC conviction. 

Our supreme court then issued a supervisory order directing us to reconsider that judgment in 

light of its decision in People v. McFadden, 2016 IL 117424. Having done so, we now affirm the 

defendant’s AHC conviction, reverse the defendant’s first degree murder conviction, and remand 

for resentencing.
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¶ 2 BACKGROUND

¶ 3 On June 21, 2009, in the late evening, victim Lee Floyd (Lee) was shot and killed at an 

outdoor party located at West Van Buren Street and South Keeler Avenue in Chicago, Illinois. 

On June 26, 2009, police officers arrested defendant, who was subsequently charged with the 

first degree murder of Lee, the offense of being an AHC, and aggravated discharge of a firearm.

Defendant asserted in his videotaped statement to the police that one of his friends, Keevo,1

accidentally shot Lee during the party. Prior to trial, on June 20, 2011, the State decided to 

proceed with the first degree murder and AHC charges but nol-prossed the remaining charges. 

¶ 4 On June 21, 2011, the same day a bench trial commenced on the AHC charge, a jury trial 

commenced on the first degree murder charge. Tytianna Johnson (Tytianna) testified on behalf of 

the State that, at about 10:30 p.m. on June 21, 2009, she, Iesha Parker (Iesha), Keyana Williams

(Keyana), and Elaina Riley (Elaina) attended a Father’s Day outdoor celebration in the area of 

West Van Buren Street and South Keeler Avenue in Chicago. Tytianna estimated that about 200 

people attended the party, including Jasmine Benson (Jasmine) and defendant, whose nickname 

was “LC.” Tytianna noticed a group of “boys standing around” with defendant, including an 

individual nicknamed “Bird,” which she described as the “LC crew.” Tytianna noticed that 

defendant had a gun tucked into his waistband, that he wore a white T-shirt bearing a photograph 

of someone, and that the “[m]ajority of the whole party” wore the same shirt. Although Tytianna 

testified at trial that she did not see Bird with a gun, she had previously informed the grand jury 

and an assistant State’s Attorney that Bird had a gun at the party. At some point, Jasmine and 

Ashley Dockery (Ashley) got into a verbal argument while Tytianna and Ashley’s boyfriend, 

 1 The spelling of this individual’s name varies in the record as “Keevo” or “Kevo.”
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Tommy, stood nearby. About 7 to 10 minutes later, “a whole crowd of boys” stood in front of 

Tytianna, Iesha, Keyana, and Elaina. The group of about 20 boys included defendant, Bird, 

“Smooth,” and the victim, Lee. Elaina then made a statement, which caused the “whole party” to 

get “real rowdy” and to turn against the girls. Smooth then threw a drink in Iesha’s face, and 

defendant slapped Iesha. Elaina then hit defendant, who then hit Elaina, and she fell to the 

ground. The crowd then started “going crazy,” and everyone was “swinging.” Ralph Benson

(Ralph), who was the father of Tytianna’s children, then physically pulled Tytianna out of the 

fight. Moments later, Tytianna heard gunshots and observed “Pooh Bear” shooting a gun in the 

air. Tytianna and Ralph then hid under a parked truck on the corner of the street. During the 

incident, Tytianna heard a total of about 25 to 30 gunshots fired from four or five different guns

and heard the boys yell, “[s]hoot them ho’s, [s]hoot them ho’s.” Several days later, on June 27, 

2009, Tytianna cooperated with the police and identified photographs of the males she saw at the 

party, including Pooh Bear, Tommy, and Bird, and she also identified defendant in a physical 

lineup. On cross-examination, Tytianna was impeached with her grand jury testimony, which 

stated that “[m]ost of the males” she saw at the party had guns in their possession. 

¶ 5 Iesha testified that at about 10 p.m. on June 21, 2009, she, Tytianna, Keyana, and Elaina

attended an outdoor party in the playground of an elementary school at West Van Buren Street 

and South Keeler Avenue. Iesha estimated about 50 to 100 people in attendance, and partygoers 

stood on the sidewalks, yard, and streets. Iesha saw Tommy, Pooh Bear, Keevo, Melissa Meridy

(Melissa), and Jasmine at the party. Jasmine engaged in an altercation with Ashley, after which 

Tommy walked to Jasmine and Melissa on the street corner, said something to them, and walked 

back toward the elementary school grounds. Elaina then said something to Pooh Bear, which 

caused “all the guys out there” to walk toward the girls who were on the street corner at West 
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Van Buren Street and South Keeler Avenue at that time. Iesha knew that something was about to 

happen and started to leave when Smooth or Suavo threw a drink in her face. Defendant then 

struck Iesha in the face, after which Elaina and defendant engaged in a physical altercation. Iesha 

described the scene as “[e]veryone just got fighting.” When gunshots rang out, Iesha fled 

southbound on South Keeler Avenue toward a bridge leading to Harrison Street. As she fled, she 

continued to hear about six or seven gunshots, looked back and saw Elaina fall down, and saw 

defendant shooting over the bridge at them from the corner of the elementary school. After she 

reached Harrison Street, Iesha hid under a porch for about 20 minutes. On June 27, 2009, 

Detective Garcia came to Iesha’s home and brought her to the police station, where she identified 

photographs of Keevo, Bird, Suavo, Tommy, and Pooh Bear. Iesha also identified defendant in a 

physical lineup and in a statement to an assistant State’s Attorney as the person who had shot at 

her.

¶ 6 Peggy Allen (Peggy) testified that she lived in a first-floor apartment near the intersection 

of West Van Buren Street and South Keeler Avenue at 4158 West Congress Parkway. In the 

early morning of June 22, 2009, Peggy awoke to the sounds of gunshots close to her apartment.

She looked out the window onto South Keeler Avenue and observed two girls running 

southbound toward West Congress Parkway and ducking between cars as a young man followed 

and shot at them. A group of people also followed behind the shooter as the shooter followed the 

girls. The gunman shot at the girls at least six times—three times before Peggy looked out the 

window and three times as she watched the incident unfold. After the shooting, Peggy discovered 

bullet holes in her windows, the dining room, and the kitchen. The next day, Peggy spoke with 

the police and showed them the damage to her home. Police officers recovered bullets and 

photographed the damage caused by the gunfire to her residence. 
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¶ 7 Melissa testified that at about 8 p.m. on June 21, 2009, she and Jasmine attended the 

barbecue party in an elementary school yard in the area of West Van Buren Street and South 

Keeler Avenue. Defendant, who wore a T-shirt with a picture on it, was at the party. At some 

point during the party, Melissa, who was standing in the middle of the street on West Van Buren 

Street, saw a fight on the corner of West Van Buren Street and South Keeler Avenue. Melissa 

observed Suavo hit Elaina. Tytianna’s boyfriend then picked Tytianna up off the ground at the 

corner of West Van Buren Street and South Keeler Avenue. As the fight broke out, Melissa 

telephoned a friend. After the telephone call, Melissa approached the corner where the fight was 

occurring and heard about nine gunshots. However, she did not see who was firing the shots.

Melissa ducked behind cars as she fled and headed home. On June 28, 2009, Melissa went to the 

police station and identified defendant, Pooh Bear, Keevo, Tommy and Suavo in a photographic 

array as individuals who were present at the party. Melissa also informed the police that she had 

observed Pee Wee flashing a gun before the fight occurred at the party.

¶ 8 Roceaser Ivy (Roceaser) testified that he met defendant in 2006 and that he came into 

contact with defendant again in 2008. At trial, Roceaser initially denied that he was ever in the 

area of West Van Buren Street and South Keeler Avenue on the evening of June 21, 2009, or the 

early morning hours of June 22, 2009. He denied witnessing defendant’s involvement in a 

shooting at that location. Although Roceaser was impeached at trial with his prior statements to 

the police, the assistant State’s Attorney, and the grand jury, in which he said that he had 

observed defendant shooting a gun on the night of the party, Roceaser testified at trial that he had 
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lied to the authorities and the grand jury because the police had threatened to take his parole 

away.2

¶ 9 Assistant State’s Attorney George Canellis (ASA Canellis) testified that on July 2, 2009, 

he met with Roceaser, who informed ASA Canellis of the details of the shooting. ASA Canellis 

testified as to Roceaser’s testimony before the grand jury, which was published to the jury at 

trial: In his grand jury testimony, Roceaser testified that, after midnight on June 22, 2009, he was 

walking down South Keeler Avenue near West Van Buren Street and was trying to buy 

marijuana. Roceaser estimated that there were about 300 to 400 people outside “celebrating 

something.” As he walked on South Keeler Avenue toward West Van Buren Street, Roceaser 

saw defendant fire a gun and saw “fire jump from his hand.” When the shooting began, Roceaser 

was walking on the east side of South Keeler Avenue and was two sidewalk “squares” from 

West Van Buren Street while defendant was standing diagonally across the street next to an 

elementary school on the southwest corner of the intersection. A crowd of people stood behind 

defendant. Roceaser informed the grand jury that he had no difficulty observing defendant at the 

time of the shooting because lighting from the school building shone on defendant. Defendant 

was wearing a white T-shirt, blue jeans, white tennis shoes, and a white hat. Roceaser’s grand 

jury testimony stated that he heard no gunshots prior to defendant’s firing the gun, that defendant 

had extended his arm and was shooting at somebody rather than up in the air, and that Roceaser 

initially heard at least five or six shots and fled toward public transportation at West Van Buren 

Street and Pulaski Road. Roceaser could still hear gunshots as he fled, which became quieter as 

he got farther away. In his grand jury testimony, Roceaser also stated that he was treated fairly 

 2 At the time of trial, Roceaser was in federal custody on an unrelated drug charge and had 

previously been convicted of other felony offenses. 
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by the police, that the police did not make any threats or promises to him in exchange for his 

statement, and that ASA Canellis never made any promises to him regarding his parole status. 

¶ 10 At the time of trial, the State called former Assistant State’s Attorney Jenni Scheck 

(Scheck) who testified that on July 1, 2009, she and Detective Garcia met with Roceaser and had 

a conversation with him about the details of the shooting, which was then memorialized in a 

typewritten statement. At some point during the conversation, Scheck questioned Roceaser alone 

in the police interview room, and Roceaser never indicated that either Detective Garcia or other 

police officers threatened to revoke his parole unless he agreed to speak with them. Scheck 

testified that Roceaser was given the opportunity to make changes and corrections to the 

statement and that he attested to the accuracy of the statement by signing the bottom of each 

page. During Scheck’s trial testimony, the typewritten statement was admitted into evidence and 

published before the jury. The typewritten statement of Roceaser stated that after midnight on 

June 22, 2009, he was looking to buy some marijuana in the area of South Keeler Avenue and 

West Van Buren Street. As Roceaser headed southbound on South Keeler Avenue near West 

Van Buren Street, he saw defendant standing across the street near a school at the southwest 

corner of the intersection. Defendant, who was wearing white tennis shoes, blue jeans, a white Tshirt, and baseball hat, stood under a light emanating from the school building. Roceaser stated 

that defendant was “with some other people but seemed to be a step ahead of the group.” There 

were also “groups of 15 to 20 people and a bigger group behind the school.” Roceaser then 

observed defendant with a gun in his hand and heard two gunshots. Roceaser saw “fire” come 

out of defendant’s hand as he discharged his weapon “in the direction where other people [were] 

standing.” Roceaser stated that defendant “definitely shot the gun towards people and not up into 

the air,” that he did not hear any gunshots before defendant fired the gun, and that Roceaser then 
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fled upon seeing defendant shoot his gun. After he started running, Roceaser heard other 

gunshots, which grew fainter as he got farther away. Roceaser also stated in the typewritten 

statement that he was treated well by the detectives and Scheck, that he was given food by the 

police, that he was allowed to use the restroom whenever he needed to, that he was not 

handcuffed at any time at the police station, and that no threats or promises had been made to 

coerce him to make a statement, that he gave the statement freely and voluntarily, that he was 

allowed to make any changes or corrections to his statement, that he put his initials by the 

changes or corrections that were made, and that everything contained in the statement was true 

and accurate. 

¶ 11 Officer Kevin Ebersole (Officer Ebersole) testified that at 12:30 a.m. on June 26, 2009,

several days after the shooting, he and his partner, Officer Suing, were on routine patrol when 

they received a radio flash message of a vehicle and occupant who had been involved in an 

incident at Lake Street and Homan Avenue. About a minute later, as the officers headed 

southbound on Homan Avenue, Officer Ebersole spotted the vehicle matching the description in 

the flash message. Once the police stopped the vehicle, the front passenger exited the vehicle 

with a “nickel or chrome-plated” handgun in his hand and thereafter placed the gun into his 

waistband. At trial, Officer Ebersole identified defendant as the individual he observed exiting 

the vehicle. Officer Ebersole testified that defendant exited the vehicle and fled westbound on 

Ohio Street and into an alley near Trumbull Avenue. During the pursuit, Officer Ebersole 

observed defendant throw the handgun onto the roof of a garage near 512 North Trumbull 

Avenue. Moments later, Officer Ebersole apprehended defendant. Other police officers then 

recovered the handgun from the roof of the garage where defendant had tossed it.
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¶ 12 Officer Nick Beckman (Officer Beckman) testified that on June 26, 2009, he arrived at 

the 500 block of North Trumbull Avenue and spoke with police officers who were already at the 

location. He was directed by other officers to the roof of a garage at 512 North Trumbull 

Avenue, where he recovered a 9-millimeter semiautomatic handgun with a chrome finish. The 

handgun’s magazine was empty, and Officer Beckman inventoried the weapon. Evidence was 

presented by the State at trial that subsequent testing of the handgun showed that it matched three 

cartridge cases that were recovered from the June 21, 2009, shooting crime scene near 407 South 

Keeler Avenue.

¶ 13 Detective Gregory Jones (Detective Jones) testified that he investigated the shooting 

death of Lee. On June 26, 2009, Detective Jones interviewed Roceaser, who identified defendant

in a physical lineup as the person who had fired a handgun during the shooting melee on June 21, 

2009. On June 27, 2009, Detective Jones also interviewed Iesha, Tytianna, and Keyana. Tytianna 

identified defendant in a physical lineup as a person she saw “involved in a fight just prior to the 

shooting and also a person she saw with a handgun in his waistband before the shooting.” 

Tytianna also identified Tommy and Pooh Bear in a photographic array. Iesha viewed the 

physical lineup separately and also identified defendant as “the person who had punched her in 

her face with his fists and then fired multiple shots at her as she ran.” Iesha further identified 

Bird, Pooh Bear, Tommy, and Suavo in a photographic array. On June 28, 2009, Detective Jones 

also interviewed Melissa, who identified Pee Wee, Suavo, Tommy, Keevo, Pooh Bear, Bird,

Elaina, Iesha, Lee, Roceaser, Smooth, Fish, Lil One, Chris Rock (Rock), D-Mac, and defendant 

in a photographic array. Melissa informed Detective Jones that she had seen Pee Wee with a gun 

prior to the fight, and that Tommy had made threats to shoot anybody who “touches his girl.” On 

June 29, 2009, Detective Jones and his partner also interviewed Ashley, who identified Lee, 
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Melo, Rock, Tommy, Keevo, Pooh Bear, Smooth, Pee Wee, and defendant as being present at 

the party at the intersection of West Van Buren Street and South Keeler Avenue on June 22, 

2009. However, Ashley was not present at the time of the shooting. On July 1, 2009, Detective 

Jones reinterviewed Roceaser. Detective Jones testified that Roceaser was not placed under 

arrest or in handcuffs, that no threats were made to him regarding his parole status, that an 

assistant State’s Attorney memorialized a statement made by Roceaser, and that Roceaser 

testified before the grand jury on July 2, 2009. Detective Jones testified that, in the course of his 

investigation, he had evidence that “there were multiple people shooting” at the street corner of 

West Van Buren Street and South Keeler Avenue. On July 6, 2009, Detective Jones conducted 

another physical lineup with Iesha and Tytianna, from which Iesha identified Tavaris Hightie 

(Tavaris) as “being at the scene with a gun” and Tytianna identified Tavaris as “one of the 

people actually shooting a gun.” During Detective Jones’s testimony at trial, defendant’s 

videotaped statement to the police was published to the jury. 

¶ 14 In his videotaped statement, defendant stated that he helped organize the Father’s Day 

celebration for one of his “homies,” Boodro, who died eight years earlier. Defendant and many 

partygoers wore T-shirts with Boodro’s picture on the front. The party included food, drinks, a 

D.J., and a photographer and was located in a schoolyard at West Van Buren Street and South 

Keeler Avenue. The party was going smoothly until some “females” started to get into a fight 

with each other, and Bird tried to resolve the dispute by telling a female individual to “get the 

[expletive] on.” Defendant described what unfolded next. Defendant stated that he slapped the 

female at the corner of West Van Buren Street and South Keeler Avenue, because she was 

“talking crazy.” According to defendant, the “baby daddy” of the woman he had slapped then 

“hit [defendant’s] homie, Smooth.” Defendant did not know the identity of the “baby daddy.” 
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Defendant stated that when the “baby daddy” hit Smooth, defendant and all of his friends, 

including Smooth, Marvin, Lee (the victim), Keevo, and Big Greek surrounded the man.

Defendant stated that when they had “baby daddy” surrounded in a circle, Keevo said, “watch 

out, I’m [fittin] to kill this bitch.” Defendant then heard the first gunshot and saw people move

back. At that time, Keevo was facing West Van Buren Street and South Keeler Avenue, while 

the victim, Lee, had his back turned toward that intersection and was facing West Congress 

Parkway and South Keeler Avenue instead. When the second gunshot sounded, defendant 

claimed that he saw Lee “roll over on the ground,” but defendant did not know at the time that 

Lee had been shot. Defendant claimed that Keevo accidentally shot Lee when Keevo was trying 

to “get this bitch.” When a third gunshot sounded, defendant heard “all the bullets *** going 

towards the bridge” near West Congress Parkway, in the direction where “two girls” were 

running as the shooting began. When asked who was shooting, defendant answered, “Kevo shot 

first. [Pooh] Bear shot. Pee Wee shot. *** I had my gun out[,] Bird had his gun out.” However, 

defendant denied that either he or Bird fired their weapons but stated that “I had a nine. Bird had 

a nine. Basically it was a lot of nine’s out there it was a few .357 [revolvers].” Defendant noted 

that he had been shot on multiple occasions in the past and, thus, took his gun out once the 

shooting began. Defendant stated that “baby daddy” was able to escape by running away. He 

noted that “baby daddy” got away because once gunshots were heard, “everyone out there wasn’t 

focused.” Defendant denied walking with the crowd that followed and shot at the girls who were 

running toward the bridge. Instead, he claimed that he, Bird, Smooth, and Pee Wee put Lee into 

Smooth’s car, and Smooth drove Lee to the hospital. Defendant claims that he ran to Gladys 

Avenue to get away from West Van Buren Street and South Keeler Avenue because the police 

were coming and he still had the gun in his possession. Defendant then gave the gun to someone 
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named “Melva.” He did not find out that his “homie” Lee had died until the following morning.

Defendant claimed that the handgun that the police recovered from his person several days after 

the shooting was a different firearm than the one he had in his possession during the shooting. 

¶ 15 At trial, after defendant’s videotaped statement was played for the jury, Detective Jones 

testified on cross-examination that, based on his interviews with the witnesses, Lee was standing 

on the street near the southwest corner of the intersection of West Van Buren Street and South 

Keeler Avenue when he was shot. Detective Jones estimated that, at the time Lee was shot, there 

were “several people” directly around him and “a couple hundred people” at the party, and there 

were several handguns that had been fired at the time Lee was shot. On redirect, Detective Jones 

testified that the police had not recovered any firearms other than the gun that was recovered 

from defendant. 

¶ 16 Evidence was presented at trial that the police found shell casings and blood at the crime 

scene. Evidence technicians located and recovered 26 shell casings, a fired bullet, and a bullet 

jacket from the crime scene, which led Tonia Brubaker (Brubaker), a forensic scientist, to 

conclude that at least 28 gunshots from six or seven different firearms had been fired at the 

scene—including two .38-caliber firearms, four 9-millimeter firearms, and one unknown firearm.

Stephen Balcerzak (Balcerzak), an evidence technician, also testified that revolvers do not expel 

shell casings and, thus, would not leave such evidence behind. 

¶ 17 The State, outside the presence of the jury, also introduced into evidence two certified 

copies of defendant’s previous convictions: the first was a certified copy of a January 9, 2007, 

felony conviction for possession of a controlled substance with intent to deliver, in violation of

section 401(d)(i) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d)(i) (West 

2006)) (case No. 06 CR 2687101); the second was a certified copy of a February 1, 2002, felony 
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conviction for aggravated unlawful use of a weapon, in violation of section 24-1.6(a)(1) of the 

Criminal Code of 1961 (Criminal Code) (720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No. 01 CR 

1233801). 

¶ 18 By stipulation, the parties agreed that Dr. Tera Jones (Dr. Jones) performed the autopsy 

of Lee’s body. Dr. Jones observed a gunshot entrance wound on his right upper back, and the 

exit wound on his right upper chest. The bullet traveled from “back to front slightly right to left 

and upward.” Examination of the skin around the entrance wound revealed no evidence of closerange firing, which typically occurs when the firearm is less than 18 inches from the victim. The 

parties stipulated that Dr. Jones would testify within a reasonable degree of medical and 

scientific certainty that the cause of death was due to a gunshot wound on Lee’s back and the 

manner of death was homicide.

¶ 19 After the State rested, three witnesses testified on behalf of defendant. Antonio Williams 

(Antonio) is defendant’s nephew and was about 14 years old at the time of the shooting. Rekia 

Williams (Rekia) is Antonio’s mother. Tiana Cowart (Tiana) is defendant’s wife. Antonio, 

Rekia, and Tiana testified that they saw defendant fighting with some women when they heard 

the first gunshots at the Father’s Day party. Antonio testified that once the fight broke out, 

“everybody started fighting.” Antonio testified that, before the shots were fired, Lee was 

standing on the sidewalk by the entrance door of the elementary school, which was about 15 feet 

away from the corner of West Van Buren Street and South Keeler Avenue. Antonio did not see 

Lee get struck by a bullet but only saw him fall to the ground. All three witnesses testified that 

they neither saw defendant in possession of a gun nor fire a weapon and that they fled the scene 

shortly after they heard the gunshots. Rekia and Tiana also testified that defendant wore a sling 

on one of his arms on the night of the shooting. 
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¶ 20 During jury deliberations and outside the presence of the jury, the trial court conducted a

simultaneous bench trial and found defendant guilty of being an AHC. Following deliberations, 

the jury found defendant guilty of first degree murder of Lee and found that he personally 

discharged a firearm.

¶ 21 On September 23, 2011, the trial court denied defendant’s motion for a new trial. The 

trial court then sentenced defendant to 51 years of imprisonment, which included a 20-year 

firearm enhancement, and the court imposed a concurrent 20-year sentence for the AHC

conviction. On September 30, 2011, the trial court denied defendant’s motion to reconsider the 

sentence. Defendant then appealed. 

¶ 22 On February 9, 2015, this court reversed both of defendant’s convictions. People v. 

Cowart, 2015 IL App (1st) 113085. In reversing the first degree murder conviction, we held that 

“the State failed to prove beyond a reasonable doubt that there was a common criminal design 

between defendant and Lee’s killer, so as to establish defendant’s intent to promote or facilitate 

the crime.” Id. ¶ 38. In reversing the AHC conviction, we held that the State failed to prove the 

predicate offenses for AHC because defendant’s prior conviction for aggravated unlawful use of 

a weapon (AUUW) was based on a statute found to be unconstitutional in People v. Aguilar, 

2013 IL 112115. Cowart, 2015 IL App (1st) 113085, ¶ 47. 

¶ 23 In September 2016, our supreme court issued a supervisory order directing us to vacate 

our February 9, 2015, judgment and to reconsider that judgment in light of its decision in People 

v. McFadden, 2016 IL 117424. Both defendant and the State submitted supplemental briefs.

Having reconsidered in accordance with the supreme court’s mandate, we now affirm the 

defendant’s AHC conviction, reverse the defendant’s first degree murder conviction, and remand 

for resentencing.
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¶ 24 ANALYSIS

¶ 25 We note that we have jurisdiction as defendant filed a timely notice of appeal following a 

final order pursuant to Illinois Supreme Court Rule 606 (eff. Dec. 11, 2014).

¶ 26 We determine the following issues on appeal: (1) whether the State established beyond a 

reasonable doubt that defendant committed first degree murder under a theory of accountability, 

(2) whether the State established beyond a reasonable doubt that defendant committed the 

offense of AHC in light of McFadden, and (3) whether the trial court erred in imposing a 20-year 

firearm enhancement sentence on defendant’s first degree murder conviction.

¶ 27 We first determine whether the State established beyond a reasonable doubt that 

defendant committed first degree murder on a theory of accountability.3

¶ 28 As a preliminary matter, defendant points out in his reply brief that the State’s response 

brief makes various references to gang evidence, which had not been presented at trial, and asks 

that this court strike or ignore these gang-related references. We agree that the State’s original 

brief makes gang-related references from portions of the transcript of defendant’s videotaped 

statement that was not played for the jury. However, in December 2014, this court granted the 

State leave to file a corrected brief, which removed from the brief all gang-related references that 

were not admitted at trial. The corrected brief did not make any substantive changes to the 

State’s arguments regarding the issues on appeal. Also, in the interest of judicial economy, this 

 3 The issue of first degree murder in this case is outside the scope of the supreme court’s 

supervisory order, as the McFadden decision has no bearing on the first degree murder conviction. While 

we are not precluded from reconsidering issues outside the scope of the mandate, the State does not 

provide any new arguments in support of a first degree murder conviction. See, e.g., People v. Warren, 

2016 IL App (1st) 090884-C. Therefore, our analysis on this issue is unchanged from our February 9, 

2015 vacated judgment. 
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court will treat defendant’s reply brief to the State’s original response brief as a reply brief to the 

State’s corrected brief.

¶ 29 Defendant argues that his conviction should be reversed because the State failed to prove 

beyond a reasonable doubt that he committed first degree murder under a theory of 

accountability, where the shooter was unknown and the weapon that was used to kill Lee was 

unknown. Even if the State’s evidence could be believed, he contends, it only showed that 

defendant was shooting at Iesha and her friends, while Lee was nowhere in sight. Defendant

argues that the State failed to present the testimony of any witnesses who saw “anyone else shoot 

at [Iesha] before [Lee] was shot,” that the State failed to present any facts that connected 

defendant’s friends to the fatal bullet, and that the physical evidence implicated numerous 

unknown potential shooters. He contends that instead of charging defendant for a crime against 

Iesha, the State “overcharged” him with the first degree murder of Lee on a theory of 

accountability. Specifically, defendant claims that, even viewing the evidence in the light most 

favorable to the State, the evidence was insufficient to prove beyond a reasonable doubt, all of 

the elements of the theory of accountability.

¶ 30 The State counters that defendant was proven guilty beyond a reasonable doubt of first 

degree murder under a theory of accountability. Specifically, the State argues that defendant was 

properly convicted of the offense because he and his friends participated in a common criminal 

design that resulted in Lee’s death. The State further argues that other factors, such as 

defendant’s presence during the commission of the crime, his flight from the scene, his failure to 

report the incident, and his continued association with the other offenders after the shooting, all 

showed that defendant was accountable for Lee’s death.
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¶ 31 When the sufficiency of the evidence is challenged on appeal, we must determine

“ ‘whether, after viewing the evidence in the light most favorable to the [State], any rational trier 

of fact could have found the essential elements of the crime beyond the reasonable doubt.’ ” 

(Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting 

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to the 

trier of fact and does not retry defendant on appeal. People v. Smith, 318 Ill. App. 3d 64, 73 

(2000). It is within the province of the trier of fact “to assess the credibility of the witnesses, 

determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the 

evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any 

possible explanation compatible with defendant’s innocence and elevate it to the status of 

reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will 

not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 

(2006). A reviewing court must allow all reasonable inferences from the record in favor of the

State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be 

reversed “unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt 

as to the defendant’s guilt.” Graham, 392 Ill. App. 3d at 1009. 

¶ 32 A person commits first degree murder when, in performing the acts which cause the 

death of an individual, (1) he either “intends to kill or do great bodily harm to that individual or 

another, or knows that such acts will cause death to that individual or another” or (2) “he knows 

that such acts create a strong probability of death or great bodily harm to that individual or 

another.” 720 ILCS 5/9-1(a)(1), (2) (West 2008); People v. Jones, 376 Ill. App. 3d 372, 383 

(2007). 
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¶ 33 At trial, the State prosecuted its case against defendant for first degree murder under a 

theory of accountability. A person is legally accountable for the criminal conduct of another

when “[e]ither before or during the commission of an offense, and with the intent to promote or 

facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in 

the planning or commission of the offense.” 720 ILCS 5/5-2(c) (West 2008). 

¶ 34 To prove that a defendant had the intent to promote or facilitate the crime, the State must 

present evidence that establishes, beyond a reasonable doubt, “that (1) defendant shared the 

criminal intent of the principal or (2) there was a common criminal design.” People v. Willis, 

2013 IL App (1st) 110233, ¶ 79. In the case at bar, the State does not argue that defendant shared 

the criminal intent of the person who shot Lee. Rather, the State advanced its case on the theory 

that there was a “common criminal design” by which defendant showed the intent to promote or 

facilitate the killing of Lee. The common design rule holds that “where two or more persons 

engage in a common criminal design or agreement, any acts in the furtherance of that common 

design committed by one party are considered to be the acts of all parties to the design or 

agreement and all are equally responsible for the consequences of the further acts.” In re W.C., 

167 Ill. 2d 307, 337 (1995). “Words of agreement are not required to prove a common design or 

purpose between codefendants; a common design may be inferred from the circumstances 

surrounding the crime.” Willis, 2013 IL App (1st) 110233, ¶ 79. “Evidence that a defendant 

voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports 

an inference that he shared the common purpose and will sustain his conviction for an offense 

committed by another.” In re W.C., 167 Ill. 2d at 338. “A conviction under accountability does 

not require proof of a preconceived plan if the evidence indicates involvement by the accused in 

the spontaneous acts of the group.” People v. Cooper, 194 Ill. 2d 419, 435 (2000). “In 
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determining a defendant’s legal accountability, the trier of fact may consider defendant’s 

presence during its commission, defendant’s continued close association with other offenders 

after its commission, defendant’s failure to report the crime, and defendant’s flight from the 

scene.” Willis, 2013 IL App (1st) 110233, ¶ 79. “ ‘Absent other circumstances indicating a 

common design, presence at the scene and flight therefrom do not constitute prima facie

evidence of accountability; however, they do constitute circumstantial evidence which may tend 

to prove and establish a defendant’s guilt.’ ” Id. ¶ 79 (quoting People v. Foster, 198 Ill. App. 3d 

986, 993 (1990)). A defendant may be found guilty under an accountability theory even though 

the identity of the principal is unknown. Cooper, 194 Ill. 2d at 435. 

¶ 35 With regard to the intent element of accountability under the facts of this case, we find 

that the State failed to establish that there existed a common criminal design between defendant 

and the multitude of armed partygoers who participated in the shooting melee that ended in Lee’s 

death. There was evidence that many men in the crowd, including, but not necessarily limited to, 

defendant and his friends, were armed with guns. The scene was described as chaotic once the 

shooting started. There is also evidence that Lee was alive when the shooting started. In 

defendant’s videotaped statement, he claims that Keevo accidentially shot Lee. The State never 

embraced that evidence. The State argued instead that Lee’s killer was unknown. At trial, the 

State presented evidence that defendant and a “whole crowd of boys,” engaged in a verbal and 

physical altercation with Iesha and her friends, including “baby daddy.” Moments later gunfire 

erupted. It is unclear where that gunfire originated. The State’s evidence revealed that at some 

point, defendant shot at Iesha and Elaina as they fled southbound on South Keeler Avenue. It is 

unclear from the evidence when Lee was shot. Tytianna testified that she heard about 25 to 30 

gunshots fired from multiple guns during the melee and observed Pooh Bear shooting a gun in 
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the air. Trial testimony also established that there were hundreds of people at the party and that 

many, if not most of the men, were armed with guns. There was no evidence that the multitude 

of armed men were all members of defendant’s “crew.” There was also evidence that at least 26 

shell casings, a fired bullet, and a bullet jacket were found at the scene. However, given the 

amount of shooting, it can be inferred that there were revolvers in the mix as well. The State’s 

evidence technician, Balcerzak, testified that revolvers would not leave behind shell casings after 

being fired. In other words, it is impossible to know how many guns were at the party and who 

was firing them.

¶ 36 Defendant makes a reasonable argument that the State has not addressed satisfactorily.

Specifically, defendant argues that it is insufficient to show that multiple illegal acts occurred in 

the same vicinity without showing the common link between or among the actors. In the case at 

bar, a theory of accountability for Lee’s murder under these facts presented significant 

evidentiary challenges for the State.

¶ 37 The State has conceded that its theory of accountability is not based on a common 

criminal intent between the shooter and defendant. Therefore, the State was required to show that 

there was a common criminal design between defendant and the shooter who killed Lee. The 

State was required to do so under the facts of this case. Consequently, defendant is able to make 

a convincing argument that the State charged him with the wrong crime or “overcharged” him 

with the murder of Lee. 

¶ 38 It is undisputed that there was evidence that defendant fired shots at Iesha. Yet, that is not 

the crime for which the State chose to charge and try defendant. Inexplicably, the State chose to 

try defendant for the murder of Lee on a theory of accountability, when the evidence did not 

provide proof of either a shared criminal intent (which is conceded) or a common criminal 
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design. We note that the State has complete discretion to determine the charge or charges that 

will be levied against a defendant. It is also the State’s responsibility to ensure that the facts and 

the proof required to meet the burden beyond a reasonable doubt are consistent with the crime 

charged. In this case the State has failed to do so. Thus, at most, we find that the State’s evidence 

showed that an unidentified person killed Lee but that defendant shot at Iesha and Elaina. 

Therefore, in order to establish a “common criminal design,” the State must prove beyond a 

reasonable doubt that the unknown shooter was a part of defendant’s alleged criminal design to 

shoot Iesha and her friends but instead killed Lee while he was acting in furtherance of the plan

that he and defendant had in common. Although defendant claimed in his videotaped statement 

that Keevo, Pooh Bear, and Pee Wee fired their guns in retaliation against Iesha and her friends, 

those shots were described as being discharged after Lee had already been shot and, thus, could 

not be a basis for proving accountability for the shooting. See 720 ILCS 5/5-2(c) (West 2008) (a 

person is legally accountable for the criminal conduct of another when, “[e]ither before or during

the commission of an offense, and with the intent to promote or facilitate such commission, he 

solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of 

the offense” (emphasis added)). No evidence was presented by the State that anyone other than 

defendant shot at Iesha or Elaina. Although someone in the group of “boys” yelled, “[s]hoot 

them ho’s, [s]hoot them ho’s,” that person was never identified and there was no evidence that 

any one in that group fired a gun. Aside from defendant, the only other person identified by a 

witness at trial as having shot a gun was Pooh Bear, who fired into the air. Thus, we find that the 

State could not prove beyond a reasonable doubt that anyone belonging to defendant’s group of 

“homies” fired gunshots at Iesha and her friends and shot Lee instead. 
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¶ 39 Even assuming, arguendo, that the State’s evidence did show that other persons 

participated in defendant’s criminal design to shoot Iesha and her friends, no direct or 

circumstantial evidence established that any one of those participants was the shooter who killed 

Lee. While it was undisputed that defendant was present at the crime scene and evidence showed

that defendant and his friends were armed at the party, the evidence was insufficient to prove that 

the unidentified shooter was a member of defendant’s alleged criminal design to shoot Iesha and 

her friends but instead killed Lee unintentionally while acting in furtherance of the plan. As 

discussed, hundreds of people attended the party, where most of the men were armed and not all 

of them belonged to defendant’s “crew,” and forensic evidence recovered from the scene 

revealed that at least 28 gunshots from seven different firearms had been fired during the 

shooting—yielding the possibility of numerous unknown potential shooters who may or may not 

have been associated with defendant. The police only recovered one out of the seven firearms 

during their investigation. Because the fatal bullet that struck Lee had exited his body, its caliber 

remained unknown and it could not be traced to a particular weapon or shooter. 

¶ 40 We note that individuals committing crimes in the vicinity of each other cannot 

automatically be held accountable for each other’s criminal acts. Rather, where there were

multiple shooters at the party, the State must show that Lee’s unidentified shooter shared in 

defendant’s alleged criminal design thereby establishing the “common” link between them. See 

Fagan v. Washington, 942 F.2d 1155, 1160 (7th Cir. 1991) (reversing accountability murder 

conviction on the basis that the trial court “assumed,” absent any evidence, “that the bullet that 

killed [the victim] must have come from a gun fired by one of the [members from defendant’s 

gang]”). Absent this showing, it is not difficult to imagine other scenarios by which Lee was 

shot. For example, someone who had a personal grudge against Lee could have used the chaos 
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and confusion of the brawl and shoot-out at the party as a convenient pretext to shoot him with 

minimal risk of detection. See id. at 1159. Based on the evidence, we find that the State has not 

established a factual link between the bullet that killed Lee and any shooter in general, let alone 

any shooter sharing an alleged common criminal design with defendant to shoot Iesha and her 

friends.

¶ 41 The State cites People v. Terry, 99 Ill. 2d 508 (1984), and People v. Kessler, 57 Ill. 2d 

493 (1974), in support of its arguments that the evidence was sufficient to convict defendant of 

murder on a theory of accountability. However, we find these cases to be distinguishable from 

the facts in the case at bar, where neither Terry nor Kessler involved an unknown principal and 

the perpetrator in each of those cases shared in a common criminal design with defendant. See 

Terry, 99 Ill. 2d at 517-18 (evidence sufficient to find defendants guilty of murder on a theory of 

accountability where codefendant Myers stabbed the victim while they were committing battery 

against him); Kessler, 57 Ill. 2d at 499 (evidence sufficient to convict defendant of attempted 

murder where defendant told two companions where he had seen large sums of money and 

remained inside the car while the two companions burglarized the premises and shot the tavern 

owner and a police officer during the burglary). Unlike Terry and Kessler, evidence at trial in the 

instant case failed to establish that the unidentified shooter was a member of defendant’s alleged 

criminal design and that he was acting in furtherance of defendant’s plan to shoot Iesha and her 

friends, or anyone else, when he unintentionally shot Lee. Thus, we find that the State failed to 

prove beyond a reasonable doubt that there was a common criminal design between defendant 

and Lee’s killer, so as to establish defendant’s intent to promote or facilitate the crime. See 

People v. Perez, 189 Ill. 2d 254, 269 (2000) (holding that there was insufficient evidence that 

defendant shared gang member/shooter’s criminal intent, or that he was engaged in a common 
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criminal design, to support a murder conviction on an accountability theory). Therefore, we hold 

that the evidence was insufficient to convict defendant of first degree murder under an 

accountability theory. 

¶ 42 We note that it is quite possible that defendant could have been successfully prosecuted 

for murder under a different theory, such as felony murder predicated upon mob action, or could 

have been prosecuted for the attempted murder of Iesha. However, the State chose to charge 

defendant with first degree accountability murder and “must live with the consequences of 

having proceeded on a theory that it could not establish with the certitude required in criminal 

cases.” Fagan, 942 F.2d at 1160. Accordingly, we reverse defendant’s first degree murder 

conviction and vacate his sentence on this conviction. 

¶ 43 We next determine whether the State offered evidence that could prove beyond a 

reasonable doubt that defendant was an AHC in light of McFadden. Specifically, defendant 

asserts that the State did not prove the required predicate offenses because his prior AUUW 

conviction was void. 

¶ 44 Outside the presence of the jury at trial, the State introduced into evidence two certified 

copies of defendant’s previous convictions: (1) a certified copy of a January 9, 2007 felony 

conviction for possession of a controlled substance with intent to deliver, in violation of section 

401(d)(i) (720 ILCS 570/401(d)(i) (West 2006)) (case No. 06 CR 2687101); and (2) a certified 

copy of a February 1, 2002 felony conviction for AUUW, in violation of section 24-1.6(a)(1) 

(720 ILCS 5/24-1.6(a)(1) (West 2002)) (case No. 01 CR 1233801). During jury deliberations, the 

trial court conducted a simultaneous bench trial and found defendant guilty of being an AHC. In 

sentencing defendant for first degree murder, the trial court imposed a concurrent 20-year 

sentence for the AHC conviction. 
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¶ 45 We first review the McFadden decision. McFadden concerned a direct appeal from an 

unlawful use of a weapon by a felon (UUWF ) conviction, based on the defendant’s possession 

of a firearm when he had previously been convicted of aggravated unlawful use of a weapon 

(AUUW). McFadden defendant’s prior AUUW conviction was based on the AUUW statutory 

provision found to be unconstitutional in Aguilar. See Aguilar, 2013 IL 112116 (concluding that 

the Class 4 version of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) 

was unconstitutional because it violated the second amendment right to bear arms). Similar to the 

defendant’s argument regarding the AHC offense in this case, the defendant in McFadden argued 

that Aguilar prevented use of the prior AUUW conviction to serve as a predicate offense for the 

UUWF charge.

¶ 46 On appeal, this court agreed with the McFadden defendant and vacated his UUWF 

conviction. People v. McFadden, 2014 IL App (1st) 102939. However, the supreme court 

reversed, reasoning that the defendant’s felon status was unaffected by Aguilar; thus, unless the 

prior conviction was vacated, the prior conviction precluded the defendant from legally 

possessing a firearm. McFadden, 2016 IL 117424, ¶ 31 (“Although Aguilar may provide a basis 

for vacating defendant’s prior 2002 AUUW conviction, Aguilar did not automatically overturn 

that judgment of conviction. Thus, at the time defendant committed the UUW by a felon offense, 

defendant had a judgment of conviction that had not been vacated and that made it unlawful for 

him to possess firearms.”).

¶ 47 The supreme court in McFadden relied largely on the United States Supreme Court’s 

holding “that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm 

prior felony conviction could be used by the government as the predicate felony.” Id. ¶ 22 (citing 

Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis’s reasoning 
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in holding that an AUUW conviction subject to vacatur under Aguilar may still serve as a 

predicate for a UUWF conviction.

¶ 48 In McFadden, the supreme court recognized that “the fact of a felony conviction without 

any intervening vacatur or other affirmative action to nullify the conviction triggers the firearms 

disability” (McFadden, 2016 IL 117424, ¶ 24) and applied this reasoning to the UUWF statute, 

which prohibited possession of a firearm by any person who “ ‘has been convicted of a felony 

under the laws of this State or any other jurisdiction.’ ” Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a) 

(West 2008)). The supreme court reasoned that the UUWF statute “requires the State to prove 

only the defendant’s felon status” and did not suggest “any intent to limit the language to only 

those persons whose prior felony convictions are not later subject to vacatur.” (Internal quotation 

marks omitted.) Id.

¶ 49 Defendant’s supplemental briefing makes two primary arguments attempting to 

distinguish McFadden from his case, which concern the use of the same prior AUUW felony as a 

predicate for the AHC offense. The defendant’s primary argument is that the AHC statute is 

distinguishable from either the UUWF statute at issue in McFadden or the federal statute at issue 

in Lewis, such that McFadden should not apply to support an AHC conviction based on the form 

of AUUW invalided by Aguilar. The defendant emphasizes that the UUWF offense merely 

requires proof of the defendant’s felon status based on any prior felony. See 220 ILCS 5/24-

1.1(a) (West 2012). He argues that this generic “felon status” principle was the basis for 

McFadden’s holding that a prior unconstitutional AUUW conviction could serve as a predicate 

offense for UUWF. 

¶ 50 In contrast to the status crime of UUWF, he urges that the AHC statute punishes 

particular conduct because it enumerates specific offenses that can serve as the predicate 
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felonies. He urges that the AHC statute does not present the sort of broad sweeping firearm 

disability imposed by the UUWF statute at issue in McFadden or the federal statute at issue in 

Lewis. Thus, he claims that the reasoning in those decisions does not apply here. Notably, 

virtually identical arguments were considered and rejected by this court in People v. Perkins, 

2016 IL App (1st) 150889, and People v. Faulkner, 2017 IL App (1st) 132884. Those cases 

concluded that McFadden’s logic applies to allow a prior AUUW conviction, premised on the 

statutory provision held invalid in Aguilar, to serve as a predicate for an AHC conviction. We 

reach the same conclusion in this case.

¶ 51 The second argument raised by the defendant opposing the application of McFadden has 

also been repeatedly rejected by our court. Specifically, the defendant asserts that United States 

Supreme Court precedent, including Montgomery v. Louisiana, 577 U.S. ____, 136 S. Ct. 718 

(2016), and Ex parte Siebold, 100 U.S. 371 (1880), precludes the use of a prior conviction, 

premised on a statute later held unconstitutional, as a predicate for the AHC offense. He argues 

that this precedent undercuts McFadden, which contains no discussion of Montgomery or 

Siebold. As we have before in other recent opinions, we reject the defendant’s attempt to argue 

that McFadden’s reasoning cannot apply to an AHC conviction. Faulkner, 2017 IL App (1st) 

132884; Perkins, 2016 IL App (1st) 150889. 

¶ 52 The defendant asserts that Montgomery and other United States Supreme Court decisions 

establish “that States cannot punish citizens, whether directly or collaterally, under a law that is 

facially unconstitutional.” He asserts that our supreme court’s decision in McFadden, and our 

court’s decision in Perkins, violate this principle by holding that a facially unconstitutional 

conviction for AUUW may still be used as a predicate for a separate offense until the prior 

conviction is vacated. In essence, he argues that his conduct leading to the prior AUUW 
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conviction was legal behavior in light of Aguilar, such that the AUUW conviction was void and 

cannot serve as a predicate offense.

¶ 53 This court has rejected the argument (repeated by the defendant in this case) that our 

supreme court’s decision in McFadden violates the holding in Montgomery: 

 “Perkins contends that our supreme court ‘ignored’ the 

decision in Montgomery. But as the State points outs, prior to oral 

argument in McFadden, counsel sought and was granted leave to 

cite Montgomery as additional authority. In that motion, counsel 

advanced the same arguments presented here. In response, the 

State argued, as it does here, that Montgomery posed no 

constitutional impediment to affirmance of defendant’s UUWF 

conviction given that defendant was not seeking to vacate his prior 

conviction ***, but instead was challenging his status as a 

convicted felon at the time of his trial. The State argued that in this 

context, Lewis v. United States [citation], which held that a 

defendant’s failure to vacate a prior felony conviction on grounds 

that it was unconstitutional was fatal to a challenge to a felon-inpossession conviction, controlled. We agree with the State.

At the time of Perkins’ armed habitual criminal conviction, 

he had prior UUWF and AUUW convictions. Because those 

convictions had not been vacated at the time Perkins possessed a 

firearm ***, they could properly serve as the predicates for his 
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armed habitual criminal conviction.” Perkins, 2016 IL App (1st) 

150889, ¶¶ 9-10. 

¶ 54 It is undisputed that, at the time of the defendant’s AHC conviction, he had two prior 

convictions for qualifying predicate offenses. As those convictions had not been vacated at the 

time of the defendant’s November 2011 arrest, they could properly serve as predicate convictions 

for his AHC conviction. See, e.g., McFadden. We conclude, therefore, that the defendant’s AHC 

conviction could be based, in part, on a prior AUUW conviction stemming from the statutory 

provision held unconstitutional in Aguilar. 

¶ 55 As we have reversed the first degree murder conviction due to insufficient evidence, we 

need not reach the merits of defendant’s contention that the court erred in adding a 20-year 

firearm enhancement to that conviction. We remand for the trial court to resentence defendant on 

the AHC conviction only. 

¶ 56 CONCLUSION

¶ 57 For the foregoing reasons, we reverse the first degree murder conviction, affirm the AHC 

conviction, and remand for resentencing on the AHC conviction. 

¶ 58 Affirmed in part and reversed in part. 

¶ 59 Remanded for resentencing.