NO. 4-02-0880 

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,

          Plaintiff-Appellee,

          v.

DEMECO D. HILL,

          Defendant-Appellant.	)

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	Appeal from

Circuit Court of

Macon County

No. 01CF1164  

Honorable

Theodore E. Paine,

Judge Presiding.

		JUSTICE APPLETON delivered the opinion of the court:

		Defendant, Demeco D. Hill, appeals his conviction of

attempt (armed robbery), arguing it should be reduced to attempt

(robbery) because the evidence was insufficient to prove he was

armed with a dangerous weapon during the attempted robbery of the

Prairie Pantry.  We affirm.

I. BACKGROUND

		On August 22, 2001, defendant was charged by informa

tion with attempt (armed robbery) in violation of section 18-2 of

the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/8-4(a), 18-

2 (West 2000)) and aggravated fleeing or attempting to elude a

police officer in violation of section 11-204.1 of the Illinois

Vehicle Code (625 ILCS 5/11-204.1 (West 2000)).  The charges stem

from an attempted robbery at the Prairie Pantry in Decatur on

August 19, 2001.  According to the police report, two black

males, later identified as defendant and Shannon Garry, entered

the store.  Defendant displayed a chrome automatic handgun while

Garry went behind the counter and attempted to retrieve money out of the cash register.  In the store at the time were the store owner and a friend.  A customer entered the store while the

robbery was in progress.  The friend left the store and called

for help.  The suspects ran from the location without taking any

money.  After a high-speed vehicular chase and a foot chase by

the police, defendant and Garry were apprehended and later

identified by the witnesses.

		The testimony from defendant's bench trial is summa

rized below only to the extent necessary to this disposition. 

Edward L. Garver, Jr., testified that he was in the Prairie

Pantry on the morning of August 19, 2001, visiting with his

friend, the owner of the store, Larry Franz.  Two men entered,

one brandishing a pistol, and tried to rob the store.  Garver

described the gun as "silver, sort of like a .45."  He remembered

that the gun was cocked.  He testified that the two men entered

the store through the back door and proceeded to the cash regis

ter.  They were having difficulty opening the register.  While

the two men were preoccupied, Garver ran out the door to call the

police.

		Larry Franz, the owner of the Prairie Pantry, testified

to events largely consistent with those testified to by Garver. 

Franz described the gun used as "silver or chrome-colored and it

was--had a long barrel on it."  He particularly recalled the long

chrome barrel because it was pointed directly at him.

		David Smith testified that on the day of the robbery he

had stopped at Prairie Pantry to buy some cigarettes on his way

home from work.  Smith walked into the store while the robbery was in progress.  One of the robbers shouted at Smith to get on

the floor.  Smith turned around, thinking it was a joke, and one

of the men stuck a gun in his side.  Smith testified that he was

not familiar with guns, but described the one pointed at him as a

"nickel-plated automatic."

		On July 17, 2002, the trial court found defendant

guilty of both charges.  The trial court denied defendant's

motion for a new trial.  On September 6, 2002, defendant was

sentenced to 15 years in prison on the attempt charge and 3 years

in prison on the fleeing-and-alluding charge.  This appeal

followed.

II. ANALYSIS

		Defendant argues the State failed to prove beyond a

reasonable doubt that he was armed with a dangerous weapon during

the commission of the robbery.  He claims that since the gun he

was carrying was inoperable, it could not be classified as a

"dangerous weapon" within the meaning of section 18-2 of the

Criminal Code (720 ILCS 5/18-2 (West 2000)).  He contends the

underlying offense of his attempt conviction should be changed

from armed robbery to robbery.  We disagree.

		Defendant primarily relies upon the Illinois Supreme

Court's decision in People v. Skelton, 83 Ill. 2d 58, 414 N.E.2d 455 (1980), which held that the characteristics of a "dangerous

weapon" should be analyzed under an objective test to determine

its true danger to others.  In Skelton, the toy or replica gun used by the defendant was too light and too small to be used as a

bludgeon and did not fire pellets or blank shells.  The court found the gun was not a weapon that likely would cause serious

injury, and was therefore not a "dangerous weapon" within the

meaning of the armed robbery statute.  Skelton, 83 Ill. 2d at 66- 67, 414 N.E.2d at 458.  Defendant's reliance on Skelton, and the other cases cited in his brief, is misplaced in that all were

decided prior to the amendment of the armed robbery statute.

		Prior to the enactment of Public Act 91-404, which

became effective on January 1, 2000 (Pub. Act 91-404, §5, eff.

January 1, 2000 (1999 Ill. Laws 5126, 5134)), section 18-2(a) of

the Criminal Code read as follows:

			"Armed robbery.  (a) A person commits

armed robbery when he or she violates [s]ec

tion 18-1 while he or she carries on or about

his or her person, or is otherwise armed with

a dangerous weapon."  720 ILCS 5/18-2 (West

1998).

		The cases cited by defendant in support of his argu

ment, and those cited by the State, for that matter, were decided

under this version of the statute--the preamendment version where

proof of a "dangerous weapon" was required.

		The armed robbery statute in effect on August 19, 2001

(the date of the commission of the robbery here), provides in

pertinent part as follows:

			"Armed robbery.                       

     (a) A person commits armed robbery when

he or she violates [s]ection 18-1; and

			(1) he or she carries on or about his or her person[,] or is

otherwise armed with a dangerous

weapon other than a firearm; or

			(2) he or she carries on or

about his or her person or is oth

erwise armed with a firearm[.]" 

720 ILCS 5/18-2 (West 2000).

		We reject defendant's argument that the evidence was

insufficient to prove him guilty of the underlying offense of

armed robbery for three reasons.  First, defendant has not

properly preserved his argument for the purposes of appeal.  We

cannot discern from the record that the gun defendant was carry

ing during the robbery was incapable of being fired as defendant

suggests.  No evidence in the record positively indicates that

the gun was in fact inoperable or what made it inoperable.  A

suggestion to that effect made by defendant's counsel during his

cross-examination of Franz is insufficient to prove the same.

		Second, evidence was sufficient to prove the firearm

could have been used as a dangerous weapon, even assuming it was

inoperable, within the meaning of section 18-2(a)(1) of the

Criminal Code (720 ILCS 5/18-2(a)(1) (West 2000)).  Garver,

Franz, and Smith all testified that the gun was a chrome or

nickel-plated automatic pistol.  In particular, Franz described

it as having a long, chrome barrel.  No evidence was introduced

to suggest that this gun was incapable of being used as a

bludgeon--that it was either too small or too light to cause

serious injury to anyone.  Thus, the evidence was sufficient to find defendant guilty of armed robbery for carrying a dangerous

weapon as proscribed by section 18-2(a)(1) (720 ILCS 5/18-2(a)(1)

(West 2000)).

		Finally, we find the evidence sufficient to find

defendant guilty of attempt (armed robbery) for carrying a

firearm as proscribed by section 18-2(a)(2) (720 ILCS 5/18-

2(a)(2) (West 2000)).  As explained above, the recent amendment

to the armed robbery statute added subsection (a)(2), which

deleted the requirement of proof of a "dangerous weapon" when the

defendant is armed with a firearm.  We look to the definition of

"firearm" to discern whether an otherwise inoperable handgun

qualifies.

		Pursuant to section 2-7.5 of the Criminal Code (720

ILCS 5/2-7.5 (West 2000)):

			"Except as otherwise provided in a spe

cific [s]ection, 'firearm' has the meaning

ascribed to it in [s]ection 1.1 of the Fire

arm Owners Identification Card Act."

		Section 1.1 of the Firearm Owners Identification Card

Act (FOID Act) (430 ILCS 65/1.1 (West 2000)) provides:

			"'Firearm' means any device, by whatever

name known, which is designed to expel a

projectile or projectiles by the action of an

explosion, expansion of gas or escape of gas;

excluding, however:

			(1) any pneumatic gun, spring gun, paint

ball gun[,] or B-B gun ***;

			(2) any device used exclusively for

signalling or safety and required or recom

mended by the United States Coast Guard or

the Interstate Commerce Commission;

			(3) any device used exclusively for the

firing of stud cartridges, explosive rivets

or similar industrial ammunition; and

			(4) an antique firearm (other than a

machine-gun) which *** is primarily a collec

tor's item and is not likely to be used as a

weapon."

		According to the above definitions, the focus is on the

intended purpose of the firearm based upon its design, not the current status of its ability to be used as intended.  As such,

the evidence here, which indicated that defendant was armed with

a "nickel-plated automatic" handgun, was sufficient to qualify as

a "firearm" within the meaning of section 1.1 of the FOID Act

despite defendant's contention that it was inoperable.  There

fore, pursuant to section 18-2(a)(2) of the Criminal Code (720

ILCS 5/18-2(a)(2) (West 2000)), we find the trial court did not

err in convicting defendant of attempt (armed robbery).

		Even though the State in its charging document did not

allege the violation of a particular subsection of the armed

robbery statute, nor in its brief on appeal rely upon the lan

guage of the current section 18-2, we affirm based upon the

record before us.  See People v. Cox, 202 Ill. 2d 462, 472, 782 N.E.2d 275, 281 (2002) (a court of review can affirm on any basis supported by the record).  Defendant's conviction of attempt

(armed robbery) is affirmed. 

III. CONCLUSION

		Based upon the foregoing, we affirm defendant's convic

tion.

		Affirmed.

		KNECHT, P.J., and TURNER, J., concur.