FOURTH DIVISION

									CDECEMBER 11, 2003

1-02-1883

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

								)	Circuit Court of

		Plaintiff-Appellee,			)	Cook County.

								)

	v.							)

								)

JERRY ALLEN,						)	Honorable

								)	Daniel Darcy,

		Defendant-Appellant.		)	Judge Presiding.

	JUSTICE HARTMAN delivered the opinion of the court:

	The circuit court convicted defendant, Jerry Allen, of

aggravated discharge of firearm and unlawful use of a weapon by a

felon.  He was sentenced to seven years in custody of the Illinois

Department of Corrections.  Defendant appeals, raising as issues

whether (1) his conviction for aggravated discharge of a firearm

was barred by double jeopardy where the court ambiguously found him

not guilty, then clarified its ruling, finding him guilty of the

offense; (2) he was proved guilty of aggravated discharge of a

firearm as beyond a reasonable doubt; and (3) the court abused its

discretion in sentencing him to seven years imprisonment.

	On March 11, 2001, Gloria Rainge and Cortez Mukes drove to

73rd and Stewart streets looking for Rainge's girlfriend, Candace

Lewis.  Rainge testified for the prosecution that as she was

parking her car, defendant drove right by them and she waved at

him.  Mukes believed defendant tried to hit him with his car. 

Rainge went into the apartment building where she formerly lived

with Lewis to find her.  She went to the apartment of Lewis'

friend, who directed her to defendant's home.  While Mukes waited outside, Rainge visited defendant, who she knew, and asked him

whether he had seen Lewis, explaining that others told her Lewis

might be there.  Defendant denied knowing Lewis' whereabouts and

called Rainge names.  Rainge and Mukes got back in their car and

drove about one-half block away when Mukes told Rainge to pull over

so he could talk to some girls.  As Mukes was speaking with the

girls, defendant pulled up alongside in his car and summoned Mukes

over to him.  Mukes walked to defendant's car, exchanged words with

him and punched him in the face.  Mukes returned to Rainge's car

and told her to drive away.  

	Defendant then moved his car so that both cars were facing

each other, exited his car and walked to the front of Rainge's car. 

Rainge saw defendant had a gun aimed at her car.  She and Mukes

exited and ran behind the car.  As defendant fired two shots at the

car, Rainge asked him why.  Defendant fired a third time.  She and

Mukes ran to safety.  Police stopped defendant, allowing Rainge and

Mukes to return to their car and drive away.  Police later took

Rainge and Mukes to police headquarters.  Mukes testified for the

State but did not remember the incidents from that day and denied

being with Rainge.

	Police Officer S. Morris testified for the State that as he

was patrolling the area, he and his partner heard two or three

gunshots about a block away, prompting them to drive in that

direction.  At 73rd street, Morris observed a car speeding in reverse, in the wrong direction down a one-way street until it

backed up into an intersection, then drove forward onto a westbound

street.  Morris activated his emergency signals and pulled

defendant over.  The officers exited their vehicle with weapons

drawn and commanded defendant to exit his car, which he did. 

Defendant said, "I shot at them and the gun is in the car."  Morris

arrested defendant and his partner recovered from defendant's car

a blue steel revolver, containing three live rounds, two fired

rounds and one struck, but non-fired round.  Shortly afterward,

other officers stopped Rainge and Mukes as they fled the scene. 

Police found a bullet hole in the lower front windshield of

Rainge's car.  The bullet was recovered from the dashboard and

inventoried.  At the police station defendant told Morris he bought

the gun a couple months before for $30 from a drug addict.  Morris

did not remember whether defendant told him he fired at the car to

"make some noise."

	The State's final witness was Detective John Forester, who met

with defendant at the police station the night after his arrest. 

Defendant told Forester that Mukes punched him in the face and he

became upset, went home, retrieved his gun, put it in his waistband

and drove around to look for Mukes.  Defendant found Mukes with

Rainge and discharged his gun at Rainge's car while the two fled

through a vacant lot.  Forester met with defendant a second time

that evening and was told essentially the same story, except this time he said that he was shooting at Rainge and Mukes.  Mukes told

Forester that he first encountered defendant while crossing the

street and defendant drove by him, almost hitting him.  Mukes put

his hand on defendant’s car and the two had a verbal confrontation. 

Mukes saw defendant again when he and Rainge stopped to talk with

the girls.

	The State rested and defendant moved for a finding of not

guilty.  The court granted the motion on all counts except for

count five, aggravated discharge of a firearm as to Rainge.  The

State's motion to reopen the proofs, offering into evidence a

certified copy of defendant's prior murder conviction from October

of 1974, was allowed over defense counsel's objection.  All counts

were then discharged, except counts five, 11 and 12, the latter

involving unlawful use of a weapon by a felon.  Defense counsel

asked the court, "[s]o you're reversing yourself," to which the

court replied, "[r]ight.  Based on allowing the State to bring in

a certified copy of conviction with regard to the felony

conviction."  The defense rested and the court heard closing

arguments, in which the only issue argued was whether defendant

fired in the direction of Rainge.  The court stated its findings:

"Based on the evidence presented, again

considering only the proper evidence

presented, it's pretty clear to me that Miss

Rainge was right in the area of the car when the car was struck with the bullet, just

apparently a car length away when shots were

fired.  Now, with regard to the aggravated

discharge of a firearm, finding of not guilty. 

According to the testimony given, I have no

idea where Mr. Mukes was, again, that was a

finding of not guilty."  

The court also found defendant guilty of unlawful use of a weapon

by a felon.

	Before the post-trial hearing began, the court addressed the

parties, stating: 

"I just want the record to reflect that the

defendant was found guilty of three counts. 

Finding guilty of aggravated discharge of a

firearm was count five, and also a finding of

guilty of unlawful use of a weapon by a felon

as to [the] last two counts[,] which would

be[,] I believe[,] counts eleven and twelve,

although reviewing the transcript it doesn't

really make [it] clear.  But I just want the

record to reflect that the defendant was found

guilty of count five, aggravated discharge of

a firearm in regards to Gloria Rainge.  As to

count six with regard to aggravated discharge of a firearm with regard to Mr. [Mukes,] he

was found not guilty."

	Defense counsel moved for a new trial, arguing that defendant

had been acquitted previously for unlawful use of a weapon by a

felon (counts 11 and 12) when the circuit court ruled on

defendant's motion for a finding of not guilty.  The court's

subsequent finding of guilt, counsel stated, was improper based on

double jeopardy.  The court justified its decision to reopen the

proofs, telling the parties that it was "a matter of seconds" after

he directed the counts out when the State asked to introduce

defendant’s prior murder conviction due to an oversight.  The court

believed defendant was neither prejudiced nor surprised, since he

was notified that the State would introduce the conviction, and it

was within the sound discretion of the court whether or not to

reopen the proofs.

	During the sentencing hearing, defendant's brother, Thomas

Allen, in mitigation stated that since defendant was released from

prison, he has been taking care of his disabled son and working for

his landlord, William Cheatem, as a property manager, janitor and

repairman.  The State argued in aggravation that defendant cut off

the victims' means of escape; fired toward Rainge in close

proximity; and, although his conviction is 30-years-old, he did

commit murder.    

	Defense counsel argued that defendant was provoked when Mukes punched him in the face, he has not been in trouble since his

release from prison, and has been a responsible father.  In

sentencing defendant, the court stated, "considering the [evidence

in] aggravation and mitigation, arguments of the parties, I have

reviewed the pre-sentence investigation, the defendant has been

released from the penitentiary since 1983.  And that's been almost

twenty years.  He hasn't had any problems with the law since then. 

He was a young man at the time."  The court sentenced defendant to

seven years on his conviction for aggravated discharge of a

firearm, and five years each on two counts of unlawful use of a

weapon by a felon, to be served concurrently.

	I

	Defendant first argues the counts upon which he was convicted

were discharged by the court, thereby having been ruled upon in

violation of double jeopardy principles.  Defendant asserts the

counts for unlawful use of a weapon by a felon (counts 11 and 12)

were directed out by the court in response to his motion for a

finding of not guilty, which became effective when announced, and

that "it may not be withdrawn by the trial court even if

erroneously granted, irrespective of whether the ruling is based

upon a mistake of fact or mistake of law," citing People v. Poe, 121 Ill. App. 3d 457, 462, 549 N.E.2d 667 (1984) (Poe).

	The State concedes the validity of defendant's double jeopardy

claim with regard to counts 11 and 12 and asks this court to vacate his convictions on those counts under People v. Henry, 204 Ill. 2d 267, 789 N.E.2d 274 (2003) (Henry). 

	Defendant further maintains his conviction for aggravated

discharge of weapon as to Rainge (count five) violates the

prohibition of double jeopardy.  The State initially counters that

defendant waived the issue by failing to object at trial and by not

raising the issue in his post-trial motion.  To preserve an issue

for review, a defendant must both object at trial and specifically

include the objection in a post-trial motion.  People v. Lindsey, 201 Ill. 2d 45, 53, 772 N.E.2d 1268 (2002).  The failure to raise

an issue in a written motion for a new trial results in a waiver of

that issue on appeal.  People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988).  The propriety of defendant's acquittal and

subsequent conviction implicates substantial rights concerning the

protection against double jeopardy, and this issue will be

considered on the merits.

	 Defendant states that the court’s finding of not guilty on

count five became effective when announced, and an acquittal based

on an erroneous ruling triggers double jeopardy principles, citing People v. Carter, 194 Ill. 2d 88, 741 N.E.2d 255 (2000) (Carter), and Sanabria v. United States, 437 U.S. 54, 64, 57 L. Ed. 2d 43, 98 S. Ct. 2170 (1978) (Sanabria).  Even when an acquittal is based upon an egregiously erroneous foundation, defendant argues, the

judgment is final and cannot be reviewed without violating double jeopardy, citing Fong Foo v. United States, 369 U.S. 141, 143, 7 L. Ed. 2d 629, 82 S. Ct. 671 (1962).

	The State argues that the circuit court found defendant guilty

of aggravated discharge of a firearm as to Rainge beyond a

reasonable doubt, as evinced in the record by the court's half-

sheet notation and its commentary when articulating its findings. 

On the half-sheet, the court recorded: "PNG JW Ct

1,2,3,4,6,7,8,9,10 *** MFDF granted *** FG Ct 5,11,12 = FG."  In

its findings, the court stated, "it's pretty clear to me that Miss

Rainge was right in the area of the car when the car was struck by

the bullet, just apparently a car length away when shots were

fired.  Now, with regard to the aggravated discharge of a firearm,

finding of not guilty.  According to the testimony given, I have no

idea where Mr. Mukes was, again, that was a finding of not guilty." 

	The State maintains that the circuit court's finding of not

guilty clearly was in reference to count six (aggravated discharge

of a firearm as to Mukes), and it intended to explain its reasons

for the distinct rulings.  Double jeopardy did not attach, unlike

the court's ruling as to counts 11 and 12.  The court's

clarification prior to the post-trial hearing, where it stated that

"defendant was found guilty of three counts.  Finding guilty of

aggravated discharge of a firearm was to count 5," is further

indicia of its intent to find defendant guilty on that count.

	The question presented, therefore, is whether the acquittal actually represents a resolution, correct or not, of some or all of

the factual elements of the offense.  See Henry, 204 Ill. 2d at 284; People v. Williams, 188 Ill. 2d 293, 721 N.E.2d 524 (1999); People ex rel. Daley v. Crilly, 108 Ill. 2d 301, 311, 483 N.E.2d 1236 (1985), quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 51 L. Ed. 2d 642, 97 S. Ct. 1349 (1977).

	In the instant case, an examination of the record as a whole reveals that the circuit court did, in fact, find defendant guilty

on count five.  The court stated that "Miss Rainge was right in the

area of the car when the car was struck by the bullet."  The

court's next statement was in consideration of the offense as to

Mukes, "[n]ow, with regard to the aggravated discharge of a

firearm, a finding of not guilty.  According to the testimony

given, I have no idea where Mr. Mukes was, again, that was a

finding of not guilty."  These remarks do not amount to an

acquittal on the count of aggravated discharge of a firearm as to

Rainge since they were in reference to Mukes and do not represent

a resolution of some or all of the factual elements of the charge

in favor of defendant.  Notwithstanding the court's clarification

immediately preceding the post-trial hearing, the court's intent to

find defendant guilty is ascertainable from its articulated

reasoning as set forth in the record.

	Defendant claims that even if the court was mistaken in

finding defendant not guilty, the acquittal must stand where it is based on an error of fact or law, no matter how egregious, citing Poe, 121 Ill. App. 3d at 462, and Carter, 194 Ill. 2d at 94-95.  Defendant's reliance on these cases is misplaced.  In stating that

an acquittal may not be withdrawn even where erroneously based on

a mistake of fact, the Poe court cites In re L.R., 106 Ill. App. 3d 244, 435 N.E.2d 908 (1982), in which the circuit court acquitted

defendant on a burglary count when ruling on a directed verdict.  In re L.R., 106 Ill. App. 3d at 248.  The court incorrectly believed the burglary count referred only to one victim, where it

actually included the second victim, as to whom the court intended

to find defendant guilty of burglary.  The court's mistake of fact

was further compounded by a mistake of law when it stated that the

burglary charge must be proved as to both victims named in the

charge.  The appellate court vacated the circuit court's order of

probation revocation and remanded for a new adjudicatory hearing. 

In re L.R. 106 Ill. App. 3d aat 248-49.

	In Carter, the court made an erroneous evidentiary ruling that resulted in the presentation of insufficient evidence of the

offense charged.  The Carter court stated, "[w]hen a defendant has been acquitted at trial he may not be retried on the same offense,

even if the legal rulings underlying the acquittal were erroneous." 

Carter, 194 Ill. 2d at 94-95, quoting Sanabria, 437 U.S. at 64.

	In the case sub judice, the circuit court made neither a mistake of law nor fact.  It articulated its reasons for finding defendant guilty of aggravated discharge of a firearm when it

stated defendant fired in the direction of Rainge.  The court did

not specify upon which count it was entering its finding, but went

on to discuss its finding defendant not guilty for firing in Mukes'

direction since the court had "no idea where Mr. Mukes was." 

Defendant was never actually acquitted on count five and his

finding of not guilty pertained only to count six.1  This conclusion is supported by the court's half-sheet notations and its

clarification of the somewhat ambiguous court reporter's transcript

of its findings.  Defendant's conviction on count five, aggravated

discharge of a firearm as to Rainge, is affirmed.

II

	Defendant next contends that the State failed to prove him

guilty beyond a reasonable doubt of aggravated discharge of a

firearm as to Rainge.  The State's evidence, defendant maintains,

proved only that he fired into Rainge's car and not at her,

pointing to Rainge's testimony that she and Mukes promptly exited the car; the fact that he fired point-blank into the car knowing it

was empty; and his statement that he shot only to "make some

noise."

	The record shows that Rainge jumped out of her car and ran to

the trunk area when she saw defendant get out of his car with a

gun.  Officer Morris testified that defendant said to him, "I shot

at them and the gun is in the car," that he discovered a bullet

hole in the windshield and recovered a bullet from within the car’s

dashboard.  Detective Forester testified that defendant admitted

shooting at Mukes and Rainge. 

	On review, a conviction will not be set aside on grounds of

insufficient evidence unless the proof is so improbable or

unsatisfactory that there remains a reasonable doubt as to

defendant's guilt.  People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267 (1985).  The relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.  Jackson v. Virginia, , 443 U.S. 307, 319, 61 L. Ed. 560, 99 S. Ct. 2781 (1979); Collins , 106 Ill. 2d at 261.  To prove the elements of aggravated discharge of a

firearm, it must be shown that the offender knowingly or

intentionally discharged a firearm in the direction of another

person.  People v. Taylor, 186 Ill. 2d 439, 447-48, 712 N.E.2d 326 (1999); People v. James, 246 Ill. App. 3d 939, 944, 617 N.E.2d 115 (1993); 720 ILCS 5/24-1.2(a)(2)(West 2000). 

	In the case at bar, the State proved defendant satisfied the

elements of aggravated discharge of a firearm as to Rainge. 

Through her testimony, as well as that of Morris and Forester, the

circuit court had support for finding that defendant fired in

Rainge's direction, believing she was a car length away from

defendant when he fired toward the car, which she stood behind. 

Defendant was proved guilty of aggravated discharge of a firearm as

to Rainge.

	Defendant argues further that his acquittal of aggravated

discharge of a firearm as to Mukes is legally inconsistent with

finding him guilty of aggravated discharge of a firearm as to

Rainge.

	The State counters that the doctrine of inconsistent verdicts

is inapplicable to the present case under People v. Jones, No. 93511 (May 22, 2003) (Jones).  There, the supreme court overruled its decision in People v. Klingenberg, 172 Ill. 2d 270, 665 N.E.2d 1370 (1996), in which the court held that legally inconsistent

verdicts acquitting defendant of one offense and convicting him of

another must be reversed.  Instead, the court followed United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d 461, 105 S. Ct. 471 (1984), holding that "defendants in Illinois can no longer

challenge convictions on the sole basis that they are legally

inconsistent with acquittals on other charges."  Jones, slip op. at 16.	

	Here, the circuit court could not determine where Mukes was

located when defendant fired his gun and lacked sufficient evidence

to convict defendant as to Mukes, who did not testify at all about

the incident.  The court had available only the evidence presented

in making its determination that Rainge, but not Mukes, was within

the direction of defendant's gunfire.  There was no definitive

evidence, including Rainge's testimony, that Mukes and Rainge stood

near each other at the time of the shooting.  The court, as fact-

finder, believed the evidence was sufficient as to Rainge, while

insufficient as to Mukes.  Assuming, arguendo, that the verdicts were inconsistent, the supreme court's recent holding in Jones abolished defendants' use of inconsistent verdicts as a viable

ground for reversal.2  Therefore, defendant was proved guilty beyond a reasonable doubt for firing in Rainge's direction; 

inconsistent verdicts as a claim for relief, would not change

defendant's conviction.

	III

	Defendant's final argument is that the circuit court abused its discretion in sentencing him to seven years imprisonment for

aggravated discharge of a firearm and to five years on each count

of unlawful use of a weapon by a felon.3  

	In fashioning appropriate sentences, the circuit court is in

a far better position than a reviewing court because it can make a

reasoned judgment based on firsthand consideration of factors such

as defendant's credibility, demeanor, general moral character,

mentality, social environment, habits, and age.  People v. Hall, 273 Ill. App. 3d 838, 843, 652 N.E.2d 1266 (1995).  A sentence will not be disturbed on review unless it greatly diverges from the

purpose and spirit of the law or is highly disproportionate to the

nature of the offense.  Hall, 273 Ill. App. 3d at 843.  This is especially true where the sentence imposed is within the statutory

limitations and not clearly at variance with the purpose and spirit of the Constitution.  People v. Lambrechts, 69 Ill. 2d 544, 559, 372 N.E.2d 641 (1977).  Accordingly, the standard of review is

whether the circuit court abused its discretion.  Hall, 273 Ill. App. 3d at 843.

	The minimum term of imprisonment for aggravated discharge of

a firearm is not less than four years and not more than 15 years. 

730 ILCS 5/5-8-1(a)(4) (West 2000).  Defendant's sentence falls well within the statutory limitations and does not thwart the

purpose of restoring him to useful citizenship.  See Ill. Const.

1970, art. I, § 11.  Defendant does not argue that the circuit

court failed to consider factors in mitigation, but contends only

that certain factors (i.e. , his disabled son; remorse; favorable criminal record since 1983; lack of intent to harm; and provocation

by Mukes) should be considered by this court in setting defendant's

sentence.  

	In imposing sentence, the circuit court stated, "considering

the [evidence in] aggravation and mitigation, arguments of the

parties, I have reviewed the pre-sentence investigation, the

defendant has been released from the penitentiary since 1983.  And

that's been almost twenty years.  He hasn't had any problems with

the law since then.  He was a young man at the time."  Where mitigating evidence is before the court, it is presumed that the

sentencing judge considered the evidence, absent some indication to

the contrary, other than the sentence itself.  People v. Sawyer, 139 Ill. App. 3d 383, 387, 487 N.E.2d 662 (1985).  

	Here, the circuit court specifically noted that it considered

evidence in mitigation, and defendant makes no argument to overcome

the presumption that the court considered all mitigating factors.  An appellate court will not substitute its judgment for that of a circuit court merely because it would have balanced the appropriate

factors differently if it had been charged with the initial task of sentencing.  People v. Cox, 82 Ill. 2d 268, 280, 412 N.E.2d 541 (1980), citing People v. Perruquet, 68 Ill. 2d 149, 156, 368 N.E.2d 882 (1977).  The court did not abuse its discretion in imposing a

seven-year sentence.

	For the above-stated reasons, defendant's convictions for

unlawful use of a weapon by a felon (counts 11 and 12) are vacated;

defendant's conviction and sentence for aggravated discharge of a

firearm (count five) is affirmed.

	Vacated in part and affirmed in part.

	QUINN, P.J., and GREIMAN, J., concur.