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Fifth Division
September 30, 2004

Defendant Michael Thorne, along with codefendants Harvey Robinson, James Powell, andDonnell Smith, was charged with one count of armed robbery and one count of aggravated robberybased on an incident that occurred on November 1, 1999. Prior to trial, Thorne filed a motion toquash arrest and suppress evidence, which the trial court denied. Following a bench trial, at whichThorne was tried simultaneously with but separately from Robinson and Powell, the trial court foundThorne guilty of armed robbery and sentenced him to six years in the Illinois Department ofCorrections. Thorne now appeals, presenting the following issues for our review: (1) whether theState established beyond a reasonable doubt that the defendant used a dangerous weapon whilecommitting a robbery thereby violating the armed robbery statute when there was no evidence thatthe weapon, a BB gun, was used in a dangerous manner; (2) whether the trial court erred in admittingthe victim's prior identification of Thorne, including testimony as to the role Thorne played in therobbery, as substantive evidence; and (3) whether the trial court improperly relied on a nontestifyingcodefendant's statement in finding Thorne guilty of armed robbery.

BACKGROUND

Alberto Acevedo, the victim, testified that at 10:30 a.m. on November 1, 1999, he was sellingfood from his catering truck, which was parked on the west side of Sacramento Street near FranklinBoulevard facing southbound, when he was approached by four black individuals. Acevedo testifiedthat one of the men grabbed him from behind and put a gun on his back. Acevedo also testified thatthe individual pointed the gun to his head. The individual with the gun demanded money while twoof the men searched his pockets. One of the men found and removed $235 from his right pocket. Acevedo described the man who took the money as having braided hair. Acevedo described the manwho pointed the gun at him as being a little bit taller than himself and as having short hair and a shortbeard. Acevedo described the other man who went through his pockets as having a hairstyle like "aball or something sticking out." Acevedo testified that during the time the two men were goingthrough his pockets and the third man was pointing the gun, the fourth individual was standing about45 feet away and "looking to the sides, all around."

After the robbery, Acevedo testified the four men ran away across Franklin Boulevard. Acevedo got in his truck and drove after them, traveling southbound on Sacramento. Acevedotestified that prior to the arrival of the police, he observed two of the offenders enter a station wagonand remove their jackets. From his truck, which was now facing west on Franklin, Acevedo watchedthe men enter a building on the right side of Franklin and go up the stairs. Acevedo flagged downa Metra repair truck, told the Metra employee he had been robbed, and asked him to call the police. Acevedo did not see anyone exit the building while he was waiting for the police.

When the police arrived about 10 minutes later, Acevedo directed them to the door of thebuilding that he observed the offenders enter. Acevedo testified that he remained in his truck whilethe police went into the building. Sometime later, the police told Acevedo that "they had locatedthem [and they wanted him] to go with them and identify them." Acevedo accompanied the policeto an apartment on the second floor of the building and he was shown "about eight persons." Acevedo testified that the eight people were black, the "majority of them were males," and "[t]heywere no older than thirty years of age." Acevedo identified four of the men as the men who robbedhim. Acevedo testified that he was questioned about whether the four men he had identified appearedas they were when they robbed him. Acevedo responded "no[,] because some of them had taken theirjackets off." He stated that when he identified them at the scene, he "recognize[d] them very well." Acevedo stated he was shown two jackets by the police officers while he was waiting in his truck,one was black and one was black and green. Acevedo testified that he identified Thorne as the personwho wore the black jacket during the robbery. After identifying Thorne at trial as being the man whowore the black jacket, Acevedo stated, "I'm not too sure right now because I really don't remembertheir faces very well now and the clothing that they had on then. But at that moment, yes, I was ableto identify them."

Acevedo testified that the person with the gun was wearing a black sweatshirt with a hoodor cap on. When asked what the other two men were wearing, Acevedo testified that he "identifiedthem [the] way their faces looked and the way their hairstyles were." Acevedo testified that the manwith the braids was "the one who was trying to get the money out of me." Acevedo could not sayspecifically who took the money. He stated: "It was the one with the gun and the two that had thatspecial hairstyle." Acevedo stated that of the four people he identified, two of them had removedtheir jackets and one of them had changed his pants, but he recognized them by their faces and hair. He stated that the one who had changed his pants was the one who had held the gun to his head. Hetestified that, after identifying the men, he was told by the police to return to his truck and wait. Acevedo waited and then an officer approached his truck and showed him a gun and asked him if herecognized it. Acevedo identified it as a black pistol and stated he had seen the gun before when itwas put to his head.

In court, Acevedo identified Thorne, Robinson, and Powell as being three of the fouroffenders. Acevedo testified that when he originally identified the men he told the police officers therole each man played in the robbery. At that time, he was able to recognize two of the men by theirhairstyles, noting that one had braids and the other had hair in "little cups." He said that herecognized them because they were in front of him for about two to three minutes. He stated he didnot lose sight of them until they entered the door of the building. With respect to the two men whoAcevedo saw go to the station wagon, he testified that they ran into the building and then, "almostat the same time," came out.

Acevedo was asked if the three men he identified in court looked different from how theylooked when he identified them on the day of the robbery. Acevedo stated that their dress andhairstyles were different but their faces were the same. Acevedo identified the three men in "theuniform from the prison" as the men who robbed him. The three men in the prison uniforms wereidentified as Thorne, Powell and Robinson. Acevedo further stated "[t]here is one that is not herethat he was away from the three of them."

Officer Glen Szeszol testified that on the morning of November 1, 1999, he responded to anarmed robbery call at 3000 West Franklin. When he arrived at the location, he saw Officer FredEstrella and Officer Hector Romero speaking in Spanish with Acevedo. After the conversation withAcevedo ended, Officer Szeszol went to the second floor of a building located just east of them. Officer Szeszol was accompanied by his partner and by Officer Romero, Officer Estrella, andAcevedo. Officer Szeszol described the building as a two-story housing development with anexposed porch on the second story. All the apartments were boarded up and vacant with theexception of apartment 201. Officer Szeszol approached the opened door of apartment 201 and sawfour black males sitting on chairs and couches. He identified Thorne, Robinson and Powell as threeof the four men that he saw in the apartment. Officer Romero had a conversation in Spanish withAcevedo, who was pointing in the apartment, and then informed Officer Szeszol that the men in theapartment were the offenders. The men were asked to step into the hallway, where they weresearched, handcuffed, and taken downstairs.

Officer Romero asked the woman in the apartment if she was the leaseholder. She said shewas and signed a consent to search the apartment. Officer Szeszol began his search of the apartmentin the kitchen area. He searched the garbage and found a black and green sweatshirt wrapped arounda "hard object" that he identified as a Marksman .177-caliber black BB gun. Officer Szeszol, alongwith Officer Romero, brought the gun and the sweatshirt downstairs to show them to Acevedo. Officer Romero then had a conversation with Acevedo in Spanish.

Officer Fred Estrella testified that he arrived on the scene along with his partner, OfficerRomero, and spoke with Acevedo. After speaking with Acevedo, Officer Estrella, along withAcevedo and the other officers on the scene, walked into a building and went to the second floor,where they walked down a corridor to the one open door. Officer Estrella looked inside and sawpeople in the apartment. Acevedo was asked in Spanish if the people in the apartment were the menwho robbed him and he responded that they were. Officer Estrella was shown Chicago policedepartment "C.B." reports containing individual photographs (People's exhibits 1 through 4) andasked to identify the person in each photograph. Officer Estrella identified People's exhibit 1 as aChicago police department "C.B." report that contains a picture of Robinson, and he stated that thephotograph accurately depicts how Robinson appeared when Acevedo identified him. When askedto identify Robinson in court, Officer Estrella incorrectly identified Powell and then stated, "It's thehaircut that's throwing me off." Officer Estrella identified People's exhibit 2 as a Chicago policedepartment "C.B." report that contains a picture of Smith, and he stated that the photograph of Smithaccurately depicts how Smith appeared when Acevedo identified him. Officer Estrella identifiedPeople's exhibit 3 as a Chicago police department "C.B." report that contains a picture of Powell, andhe stated that the photograph of Powell accurately depicts how Powell appeared when Acevedoidentified him. Officer Estrella identified Powell in court. Officer Estrella identified People's exhibit4 as a Chicago police department "C.B." report that contains a picture of Thorne, and he stated thatthe photograph of Thorne accurately depicts how Thorne appeared when Acevedo identified him. Officer Estrella identified Thorne in court and stated that Thorne's haircut was shorter in court thanit was on November 1, 1999, at which time it was "more centered and standing up." Officer Estrellastated that to the best of his knowledge, the four pictures contained in People's exhibits 1 through 4were taken on November 1, 1999.

Officer Estrella testified that after the men identified by Acevedo were arrested, a woman inthe apartment signed a consent to search. Officer Estrella searched a back bedroom and found $235rolled up in blue sweatpants in the bedroom.

Officer Hector Romero testified that on the morning of November 1, 1999, he and his partner,Officer Estrella, responded to a robbery call at Sacremento and Franklin. When they arrived at thescene, he spoke with the victim, Acevedo, in Spanish. After speaking with Acevedo, Acevedo guidedhim and other officers who had arrived on the scene to the building where he saw the offenders flee. After they arrived at the building, they went up a stairwell to the second floor. Officer Romerotestified that most of the building was boarded up. They approached the one occupied apartment,looked through the open door, and saw four black males and one black female. Acevedo told himthat those were the men who robbed him. The men were asked to step out of the apartment. As eachman exited the apartment, Acevedo told Officer Romero the role each played in the robbery.

At this point during the testimony, Robinson's counsel objected to the testimony on hearsaygrounds. After extensive argument as to the admissibility of the testimony pursuant to section 115-12of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-12 (West 1998)), the court overruledthe objection. Officer Romero went on to explain that the victim had identified Robinson as the manwho displayed the weapon and said "Give me your money." Acevedo identified Thorne as the manwho held him and Smith as the man who searched his pockets. Acevedo identified Powell as thelookout.

Officer Romero testified that after the men were placed in custody, the officers searched theapartment where they were found. Officer Szeszol showed him a BB gun and a sweatshirt. OfficerRomero also saw Officer Estrella exit the building with a "bundle of U.S.C." When Acevedo wasshown the gun, he identified it as the gun used during the robbery. He also identified the money asthe money he was missing.

Detective Carl Loeffler testified that on November 1, 1999, he had a conversation with hispartner, Detective Jim Kruger, and Thorne. Thorne was advised of his Miranda rights prior tospeaking with Detective Loeffler. Thorne told Detective Loeffler that earlier that day, he and Powellwere walking along 16th Street near Springfield Street when Tookey, a friend of theirs, drove up tothem in a brown station wagon. Detective Loeffler stated that person was Robinson. Robinson satin the driver's seat and a person unknown to Thorne sat in the passenger's seat. According to Thorne,Robinson asked him to come with them to his grandmother's house. Thorne and Powell got in thebackseat and they drove to the area around Franklin and Albany where Robinson's grandmother lived. They exited the car and observed the victim's catering truck down the street at Sacramento andFranklin. All four men walked toward the truck. According to Thorne's statement, when they gotthere, Robinson pulled out a gun and Smith, the unknown black male in the passenger seat, wentthrough the victim's pockets and took some money. After robbing the victim, all four men ran backto Robinson's grandmother's apartment, where Robinson told them he had taken about $234 from thevictim and wrapped the gun in a sweatshirt and hid it in the apartment.

Detective Loeffler testified that later that day, he and his partner, Detective Kruger, had aconversation with Powell after advising him of his Miranda rights. Powell told them that earlier thatday, he and his friend, Thorne, were walking on 16th Street near Springfield when a car driven byTookey pulled up with an unknown black male in the passenger seat. Tookey, also known asRobinson, asked them to help move some furniture at his grandmother's house so they got in the car. They went to his aunt's house looking for Powell's cousin, but he was not there. They next went toa Foot Locker store because Robinson wanted to buy something but he did not buy anything. Afterleaving Foot Locker, they drove to Franklin Boulevard, where Robinson's grandmother lived. Theygot out of the car and saw Acevedo's catering truck down by Sacramento and Franklin. The fourof them walked toward the truck and Robinson produced a handgun. Smith went through Acevedo'spockets and removed some money. Then all four of them ran to Robinson's grandmother's house. He did not know how much money Smith removed from Acevedo's pockets; he only knew thatRobinson hid the gun somewhere in the kitchen.

Detective Loeffler also testified that sometime during the afternoon of November 1, 1999,Acevedo was shown the recovered handgun, which he identified as the weapon used during therobbery, and the black and green sweatshirt.

On cross-examination, Detective Loeffler testified that Thorne's statement was never reducedto writing for Thorne's signature and that an assistant State's Attorney was not present for thestatement. Detective Loeffler's partner prepared a report regarding the investigation which hereviewed and signed. In a following supplemental report, it does not state that Thorne approachedthe truck.

At the close of evidence, Thorne moved for a judgment of acquittal. Thorne argued that theState failed to prove that the BB gun used during the robbery was a dangerous weapon and that theState failed to establish Thorne committed the crime because the victim could not identify him incourt. The trial court denied the motion and found Thorne guilty of armed robbery. Thorne filed amotion for a new trial where he reiterated his arguments set forth in his motion for acquittal. The trialcourt denied Thorne's motion for a new trial and sentenced Thorne to six years in the IllinoisDepartment of Corrections. Thorne now appeals.

ANALYSIS

THE SUFFICIENCY OF THE EVIDENCE

Thorne's first argument on appeal is that his conviction for armed robbery should be reducedto robbery because the BB gun used in the robbery was not, as a matter of law, a dangerous weaponfor purposes of the armed robbery statute. Specifically, Thorne argues that the evidence at trialshows only that the gun was a BB gun and looked like a black pistol and that the State failed to provethe weapon was dangerous by its description, the manner of its use, or the circumstances of the case.

A criminal conviction will not be set aside unless the evidence is so improbable orunsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill.2d 237, 261 (1985). When presented with a challenge to the sufficiency of the evidence, a reviewingcourt will sustain a criminal conviction if "'after viewing the evidence in the light most favorable tothe prosecution, any rational trier of fact could have found the essential elements of the crime beyonda reasonable doubt.'" (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia,443 U.S. 307, 319, 61 L. Ed. 2d 560, 573 99 S. Ct. 2781, 2789 (1979).

A person commits the offense of armed robbery when he or she commits robbery (720 ILCS5/18-1 (West 1998)) "while he or she carries on or about his or her person, or is otherwise armedwith a dangerous weapon." ( 720 ILCS 5/18-2(a) (West 1998)).⁽¹⁾ "The purpose of the armed robberystatute is to treat more severely a person who commits a robbery while possessing a weapon actuallycapable of causing serious injury than a person who commits a robbery without possessing such aweapon." People v. Lindsay, 263 Ill. App. 3d 523, 527-28 (1994), citing People v. Skelton, 83 Ill.2d 58 (1980).

While a definition of the term "dangerous weapon" cannot be found in the armed robberystatute, our courts have defined the term by dividing objects alleged to be "dangerous weapons" intofour categories. Lindsay, 263 Ill. App. 3d at 528. The first category consists of objects that aredangerous per se, such as knives and loaded guns. See People v. Neither, 166 Ill. App. 3d 896, 900(1988). The second category consists of objects that are never dangerous weapons, such as a four-inch plastic toy gun. See Skelton, 83 Ill.2d at 66-67. The third category consists of objects that arenot necessarily dangerous weapons but can be used as such, for instance, an unloaded gun or a toygun made of heavy material, which are incapable of shooting bullets but can be used as a bludgeon(see People v. Bayless, 99 Ill. App. 3d 532, 538 (1981)) or, as another example, fingernail clipperswith a sharpened file (see People v. Robinson, 73 Ill. 2d 192, 201-02 (1978)). The fourth categoryconsists of objects that are not necessarily dangerous but were actually used in a dangerous mannerin the course of the robbery. See People v. De La Fuente, 92 Ill. App. 3d 525, 535-36 (1981) (starterpistol actually used to bludgeon the victim found to be dangerous per se because of the manner inwhich it was used: the victim was struck on the head). While it is generally a question of fact whetherthe object at issue was "sufficiently susceptible to use in a manner likely to cause serious injury toqualify as a dangerous weapon," the question becomes one of law where "the character of the weaponis such as to admit of only one conclusion." Skelton, 83 Ill. 2d at 66.

Thorne relies on People v. Davis, 199 Ill. 2d 130 (2002), and argues that a BB gun is not adangerous weapon per se and, therefore, the State was required to present evidence that wouldenable a trier of fact to conclude that the gun was or could have been used in a way to constitute adangerous weapon. Thorne's reliance on Davis is misplaced. A close examination of the Davis casereveals that it does not involve the armed robbery statute at issue herein; rather, at issue in Davis waswhether a pellet or BB gun qualified as a dangerous weapon within the meaning of the armed violencestatute. Davis, 199 Ill. 2d at 132-33. Unlike the armed robbery statute where the term "dangerousweapon" is not defined, the armed violence statute expressly defines the term. Davis, 199 Ill. 2d at132-33.

In determining whether a BB gun qualifies as a dangerous weapon under the armed violencestatute, the Davis court carefully examined the statutory definition. The court noted that the armedviolence statute specifically names several weapons as qualifying as a Category I weapon: "pistol,revolver, rifle, shotgun, spring gun, sawed-off shotgun, stun gun or taser, knife with a blade of at leastthree inches in length, dagger, dirk, switchblade knife, and stiletto." Davis, 199 Ill. 2d at 136. Inaddition to individually naming certain weapons, the provision also uses two inclusive clauses: "anyother firearm" and "any other deadly or dangerous weapon or instrument of like nature." Davis, 199Ill. 2d at 136. The court held that a BB gun did not qualify as "any other firearm" under the armedviolence statute by looking to the Firearm Owners Identification Card Act (430 ILCS 65/1.1 (West2000)) and the Air Rifle Act (720 ILCS 535/0.01 (West 2000)). Davis, 199 Ill. 2d at 136-37. Thecourt also held that a BB gun did not fall within the purview of the phrase "any other deadly ordangerous weapon or instrument of like nature" in the armed violence statute. The court applied thedoctrine of ejusdem generis in conjunction with the last antecedent rule and found that the statutoryphrase "'any other deadly or dangerous weapon or instrument of like nature' was intended to referonly to weapons or instruments 'such like' the class of blade-type weapons which immediatelypreceded the clause in the provision." Davis, 199 Ill. 2d at 138-39. After concluding that a BB gundid not qualify as a dangerous weapon under the armed violence statute, the court pointed withapproval to several armed robbery cases in which a BB gun qualified as a dangerous weapon,remarking that "[i]n none of these cases were defendants ever charged with armed violence." Davis,199 Ill. 2d at 139-40. Thus, Davis makes clear that its holding was limited to the armed violencestatute and its construction of words in that statute should not be used to construe the words in thearmed robbery statute. Davis, 199 Ill. 2d at 139-40.

The issue in this case, unlike the issue in Davis, is whether the BB gun used in the robberyqualifies as a dangerous weapon within the purview of the armed robbery statute. In light of the factthere was no evidence that the BB gun was loaded or that it was in fact used in a dangerous mannerduring the robbery, it falls within the third category of objects described by the courts as objects thatcan be used as a dangerous weapon. See Lindsay, 263 Ill. App. 3d at 528 (unloaded guns fall intothird category of objects and qualify as dangerous weapons since they are incapable of shootingbullets but can be used as bludgeons). Therefore, whether the BB gun is a dangerous weapon is aquestion of fact to be resolved by the trier of fact. See Lindsay, 263 Ill. App. 3d at 528; People v.Flores, 245 Ill. App. 3d 149, 158 (1993) (whether an object in the third category is a dangerousweapon is a question of fact to be resolved by the trier of fact.)

In all the cases that have found guns that are incapable of firing bullets to be dangerousweapons under the armed robbery statute, there was either evidence (1) that the gun was actuallyused in a dangerous manner, or (2) that the character of the weapon was such that it couldconceivably be used as a bludgeon. See De La Fuente, 92 Ill. App. 3d at 536 (starter pistol that wasactually used as a bludgeon was per se a dangerous weapon for purposes of armed robbery statute);Bayless, 99 Ill. App. 3d at 537 (toy cap gun could have been used as a bludgeon to inflict seriousharm due to its weight and metallic nature); People v. Greer, 53 Ill. App. 3d 675, 683 (1977)(because unloaded pellet gun was made of metal, it could have been used as a bludgeon and whetherthe gun was a dangerous weapon was a question of fact for the jury); People v. Hill, 47 Ill. App. 3d976, 978 (1977) (because unloaded air pistol was a "piece of metal," it could have been used "in amanner dangerous to the physical well-being of the individual threatened" and, thus, the trier of factwas justified in finding it was a dangerous weapon); People v. Ratliff, 22 Ill. App. 3d 106, 108 (1974)(.22-caliber pistol designed to fire blank cartridges was a piece of metal and could have been used "ina manner dangerous to the physical well-being of the individual threatened," thus, the jury wasjustified in finding that it was a dangerous weapon). In every case finding that an unloaded gun couldhave been used as a bludgeon and, therefore, could be considered a dangerous weapon, there wasevidence presented as to the physical characteristics (weight or metallic nature) of the weapon. Here,the State failed to present such evidence. The only testimony in the instant case that goes to thephysical characteristics of the gun was Officer Szeszol's testimony that when he searched the garbagein the apartment he saw a black and green sweatshirt and "upon removing it [he] could feel there wasa hard object inside of it." He later stated the hard object was a Marksman .177-caliber black BBgun. The victim described the weapon only as a "black pistol." There was no evidence presented thatthe BB gun was a heavy metal object from which it could be inferred that it was capable of being usedas a bludgeon. The officer's description of the weapon as a "hard object" and as a Marksman .177-caliber black BB gun is insufficient circumstantial evidence to support a finding that the weapon couldhave been used as a bludgeon. See Skelton, 83 Ill. 2d at 66-67 (revolver constructed of plastic nota dangerous weapon under the armed robbery statute). The State did not introduce the gun intoevidence and provided no pictures for the trial court. The case law makes it clear that in order for theState to meet its burden of proof beyond a reasonable doubt (1) there must be testimony as to thephysical characteristics of the gun which could make it dangerous, specifically testimony as to thegun's weight or metallic nature; or (2) there must be testimony that the gun was used in a dangerousmanner: the gun was used as a bludgeon or club. See, e.g., Skelton, 83 Ill. 2d at 61-67. Withoutsome additional evidence as to the BB gun's weight, its physical characteristics (metal), and thedangerous manner in which it was used, we cannot come to the conclusion beyond a reasonabledoubt, based on testimony that the BB gun was a "hard object," that the BB gun in this case is adangerous weapon. See Skelton, 83 Ill. 2d at 64-67.

After reviewing Illinois case law on dangerous weapons and after reviewing the evidence inthe light most favorable to the prosecution, we find that the evidence was insufficient to support afinding that the weapon used during the robbery was a dangerous weapon (1) because there was notestimony that the BB gun was used as a bludgeon or club, and (2) because there was no testimonyas to the BB gun's weight or metallic nature to support a finding that the BB gun could have beenused in a dangerous manner. Skelton, 83 Ill 2d at 64-67. Additionally, the State did not introducethe gun into evidence and provided no pictures for the trial court to view the makeup of the gun. Therefore, Thorne's conviction for armed robbery will be reversed and the cause remanded for thetrial court to enter a judgment for robbery.
 

THE ADMISSION OF A DECLARANT'S PRIOR
OUT OF COURT STATEMENT OF IDENTIFICATION

Next, Thorne argues that it was error for the trial court to allow Officer Romero to testifyregarding Acevedo's prior identification of Thorne at the scene. Thorne also argues that OfficerRomero's testimony regarding Thorne's role in the robbery was improperly admitted as evidencebecause his testimony is inadmissible prior identification evidence under section 115-12 of the Codeof Criminal Procedure of 1963, (725 ILCS 5/115-12 (West 1998)). According to Thorne,identification "does not encompass statements detailing the various actions of the person beingidentified."

Section 115-12 of the Code of Criminal Procedure makes it clear that testimony regarding adeclarant's prior out-of-court statement of identification is not rendered inadmissible by the hearsayrule if: "(a) the declarant testifies at the trial or hearing, and (b) the declarant is subject tocross-examination concerning the statement, and (c) the statement is one of identification of a personmade after perceiving him." 725 ILCS 5/115-12 (West 1998); People v. Holveck, 141 Ill. 2d 84, 105(1990); People v. Bowen, 298 Ill. App. 3d 829, 835-36 (1998).

We first address the issue of the applicable standard of review. Generally, this court reviewsa trial court's evidentiary rulings under an abuse of discretion standard. People v. Childress, 158 Ill.2d 275, 296 (1994). Thorne argues that the court should review the issue de novo. We agree. Anexception to the general rule of deference applies in cases that involve statutory interpretation. SeePeople v. Hall, 195 Ill. 2d 1, 21 (2000). In such a case, evidentiary rulings are given de novo review. See Hall, 195 Ill. 2d at 21; People v. Kinsloe, 281 Ill. App.3d 799, 807-08 (1996) (court construedde novo the applicability of section 115-10.1 of the Code of Criminal Procedure, which allows for theadmissibility of testimony of prior inconsistent statements, giving no deference to the trial court). The issue here is whether Acevedo's prior identification of the offenders is admissible undersection 115-12. Resolution of this issue does not involve discretionary factual findings. Thequestions of whether the declarant testifies at the trial or hearing, whether the declarant is subject tocross-examination concerning the statement, and whether the statement is one of identification ofa person made after perceiving him do not involve fact-finding based on the demeanor or credibilityof the witnesses. See People v. Aguilar, 265 Ill. App. 3d 105, 109 (1994) (court reviewed de novothe trial judge's application of the admissions exception to the rule against hearsay because applicationof the rule did not require the trial court to use its discretion regarding fact-finding or assessing thecredibility of the witnesses). Accordingly, we review the issue de novo.

We find that the trial court properly admitted the testimony of Officer Romero because allthree requirements set out in the plain language of section 115-12 were met. 725 ILCS 5/115-12(West 1998). First, the victim testified at trial. Second, the victim was subject to cross-examinationconcerning his statement. Finally, the statement was one of identification made by the victim afterperceiving the defendant.

The case of People v. Bowen, 298 Ill. App. 3d 829 (1998), supports our holding admittingthe victim's prior out-of-court statement identifying Thorne. In Bowen, Maurice Bowen was chargedwith, inter alia, first degree murder. During the trial, a witness, Lamont Brown, testified that hewitnessed a man named Maurice fire several shots at the victim, who later died. Bowen, 298 Ill. App.3d at 831. Brown denied, however, that he identified the defendant, Maurice Bowen, as themurderer. Bowen, 298 Ill. App. 3d at 832. He admitted that he identified the defendant to the police,but stated that he only identified him as being a member of a rival gang. Bowen, 298 Ill. App. 3d at832. A detective was allowed to testify that the witness, Brown, had provided a four-page statementof his account of the shooting and in fact identified defendant from a line-up "as the one who shot[the victim.]" Bowen, 298 Ill. App. 3d at 833. The defendant appealed and argued the detective'stestimony was inadmissible based on section 115-12. The Bowen court admitted the detective'stestimony after it adopted section 611.16 of Cleary & Graham's Handbook of Illinois Evidence whichstates:

"[P]rovided the declarant testify at trial and be subject to cross-examinationconcerning the prior statement of identification of a person made after perceiving him,the prior statement of identification, testified to by the declarant or another witness,including a police officer, is now admissible as an exception to the hearsay rule assubstantive evidence without regard to whether the statement of prior identificationcorroborates a positive in-court identification by the declarant, is offered as asubstitute for an inability to make an in-court identification, or to bolster a weak in-court identification on the part of the declarant." M. Graham, Cleary & Graham'sHandbook of Illinois Evidence