Find Legal Information

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

Following a bench trial, the defendant, Clemmie Carter, was found guilty of four counts ofunlawful possession of a weapon by a felon (720 ILCS 5/24--1.1 (West 1996)) and one count ofpossession of a firearm without a valid firearm owner's identification (FOID) card (430 ILCS65/2(a)(1) (West 1996)). The trial court sentenced the defendant to five years' imprisonment for eachoffense, the sentences to run concurrently. On appeal, the defendant argues that four of hisconvictions should be vacated due to the one-act, one-crime doctrine. The defendant additionallyargues that the trial court relied on improper factors in determining his sentence. We affirm in partand vacate in part and remand for additional proceedings.

On October 8, 1997, the defendant was charged by indictment with unlawful possession ofa weapon by a felon and possession of a firearm without a FOID card. Count I of the indictmentcharged the defendant with unlawful possession of a weapon by a felon (720 ILCS 5/24--1.1 (West1996)); count II charged the defendant with possession of a firearm without a FOID card (430 ILCS65/2(a)(1) (West 1996)). Both counts I and II were based on the defendant's alleged possession ofa .22-caliber handgun on September 22, 1997. On February 4, 1998, the defendant was charged withthree more counts of unlawful possession of a weapon by a felon. Counts IV through VI were basedon the defendant's alleged possession of a .25-caliber handgun, ammunition for the .25-caliberhandgun, and ammunition for the .22-caliber handgun, respectively, on September 22, 1997.

On April 7, 1998, the trial court conducted a bench trial. Officer John Moran of theWaukegan police department testified that on September 22, 1997, at approximately 2:34 a.m., hewas on duty, sitting in his parked squad car on George Street, near the intersection with South UticaStreet. Officer Moran was watching a van parked on South Utica that he knew belonged to theMoses brothers. Three people were standing outside the van. There was other pedestrian traffic inthe area as well. Officer Moran observed a white 1982 Chevrolet Caprice drive north on South Uticaand stop 15 to 20 feet from the van. A passenger in the Caprice leaned out of the window and fired10 to 15 shots from an automatic weapon toward the van. The Caprice continued north on SouthUtica at a high rate of speed. The Caprice eventually turned right on Ravine Street.

Officer Moran drove his squad car down George with the lights off to get a better look atwhat had taken place and to see if anybody had been hurt. He had just crossed South Utica when hesaw the Caprice turn onto George from Oak Street. The Caprice headed toward Officer Moran'ssquad car. Officer Moran activated his mars lights and shined his spotlight on the Caprice. TheCaprice almost struck Officer Moran's squad car and then turned back onto South Utica, headingnorth. Officer Moran got a very good look at both the driver and the passenger. He identified thedefendant as the driver. Officer Moran followed the Caprice and eventually saw it crash into abuilding at the intersection of 12th Street and Sheridan Road. By the time he reached the vehicle, theoccupants had abandoned it.

Officers Keith Zupec and Dave Mercado of the Waukegan police department also testified.Officer Zupec testified that he was dispatched to the crash site to assist in locating the individuals who had abandoned the Caprice. Officer Zupec saw the defendant running out of an alley just westof Sheridan and near 13th Street. Officer Zupec gave chase and eventually apprehended thedefendant. Officer Mercado testified that he responded to the crash site to collect evidence. OfficerMercado found two handguns on the passenger side floorboard of the Caprice, a .22-calibersemiautomatic handgun and a .25-caliber semiautomatic handgun. Officer Mercado also found a clipcontaining 26 .22-caliber bullets on the floorboard. The .22-caliber handgun had an empty shellcasing in its chamber and was otherwise unloaded. The .25-caliber handgun was loaded with a clipcontaining five bullets.

After the close of all the evidence, the trial court found the defendant guilty on all fivecharges. The trial court set a May 8, 1998, sentencing date. The defendant failed to appear on May8, 1998, and the trial court issued an arrest warrant. The defendant was eventually arrested on thewarrant on October 5, 2001.

The trial court held a sentencing hearing on December 3, 2001. Neither party presented anyevidence. The presentence investigation report (PSI) revealed that the defendant had an extensivecriminal history. The defendant's record included convictions of driving under the influence,aggravated battery, obstructing a peace officer, unlawful possession of a controlled substance withthe intent to deliver, and disorderly conduct.

The PSI also revealed several new arrests. On February 27, 2001, the defendant was arrestedin Cleveland, Ohio, for possession of drugs, preparing drugs for sale, and possession of criminal tools. Ohio authorities had issued a warrant for the defendant's arrest due to the defendant's failure toappear in court on these charges. Additionally, on October 4, 2001, the defendant was arrested bythe Waukegan police for possession of cannabis and obstruction of justice.

After considering the PSI and hearing arguments from the State and the defendant, the trialcourt sentenced the defendant to five years' imprisonment on each count. The trial court ordered thesentences to run concurrently. In making its determination, the trial court stated:

"As to [the defendant's] subsequent conduct, especially after he didn't show up for hissentencing hearing, and the fact, even though belatedly, he picked up more offenses, one ofthem being a felony in Ohio, and the State of Ohio waiting to extradite the defendant, itappears that the defendant is not someone to be trusted with a gun. *** It appears that hewas involved in a violent, potentially explosive, dangerous situation where people would havegotten hurt, even though to the defendant it might be something that he doesn't consider tobe too serious. *** The public out there are terrorized by gang violence of this sort. Thepublic out there want people that are involved in gang violence locked up and not come out[sic]. And you haven't helped yourself at all. You didn't turn yourself in. You didn't comeclean. You kept violating the law."

Following the denial of his posttrial motions, the defendant filed a timely notice of appeal.

The defendant's first argument on appeal is that his multiple convictions violate the one-act,one-crime doctrine. The defendant argues that his conviction of possession of a firearm without aFOID card and his convictions of unlawful possession of a weapon by a felon were all based on thesame conduct. The defendant argues that four of his convictions should be vacated: three convictionsof unlawful possession of a weapon by a felon and one conviction of possession of a firearm withouta FOID card. The State confesses error as to the defendant's conviction of possession of a firearmwithout a FOID card.

Before turning to the merits, we note that the defendant has failed to properly preserve thisissue for appeal. However, we address the argument under the plain error doctrine because thedefendant's convictions and sentences affect his substantial rights. See People v. Smith, 183 Ill. 2d425, 430 (1998).

Turning then to the merits of the defendant's argument, the one-act, one-crime doctrine,articulated in People v. King, 66 Ill. 2d 551, 566 (1977), provides that multiple convictions are notproper where (1) only one physical act was manifested, or (2) multiple acts were manifested, butsome of the convictions are of included offenses. In King, the supreme court held:

"Prejudice results to the defendant only in those instances where more than oneoffense is carved from the same physical act. Prejudice, with regard to multiple acts, existsonly when the defendant is convicted of more than one offense, some of which are, bydefinition, lesser included offenses. Multiple convictions and concurrent sentences should bepermitted in all other cases where a defendant has committed several acts, despite theinterrelationship of those acts." King, 66 Ill. 2d at 556.

The one-act, one-crime rule articulated in King requires a two-part analysis. A court mustfirst determine whether a defendant's conduct consisted of separate acts or a single physical act. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). An "act" is " 'any overt or outward manifestationwhich will support a different offense.' " Rodriguez, 169 Ill. 2d at 186, quoting King, 66 Ill. 2d at566. If only one physical act was undertaken, multiple convictions are improper. If separate actswere undertaken, a court must then ask whether any of the offenses are included offenses. If so,multiple convictions are improper. Rodriguez, 169 Ill. 2d at 186.

When only one conviction can stand under the one-act, one-crime doctrine, the rule is thatthe conviction of the more serious offense should stand. People v. Bussan, 306 Ill. App. 3d 836, 839(1999). Whether multiple convictions must be vacated under the one-act, one-crime doctrine is aquestion of law subject to de novo review. People v. Daniels, 187 Ill. 2d 301, 307 (1999).

Applying these principles to the present case, we do not believe that the defendant's multipleconvictions of unlawful possession of a weapon by a felon violate the one-act, one-crime doctrine. As to the first part of the analysis, it is clear that the defendant's conduct consisted of four separateacts. Unlawful possession of a weapon by a felon, as defined by section 24--1.1 of the Criminal Codeof 1961 (the Criminal Code), may be predicated on the possession of "any weapon *** or any firearmor any firearm ammunition." (Emphasis added.) 720 ILCS 5/24--1.1(a) (West 1996). The defendantwas charged with four counts of this offense. One charge was based on the defendant possessing a.22-caliber firearm and another charge was based on the defendant possessing a .25-caliber firearm. The remaining two charges were based on the defendant possessing .22-caliber ammunition and .25-caliber ammunition. Though simultaneous, the defendant's acts of possession were all distinct. Forexample, the defendant's possession of the .22-caliber handgun was a different act from his possessionof the .25-caliber handgun. Likewise, the defendant's possession of the .22-caliber ammunition wasa different act from his possession of the .22-caliber handgun. Indeed, two separate acts do notbecome one solely by virtue of being proximate in time. People v. Myers, 85 Ill. 2d 281, 288-89(1981); People v. White, 311 Ill. App. 3d 374, 385 (2000).

We do not find problematic the fact that the .25-caliber ammunition was loaded into the .25-caliber firearm. Although the ammunition was inside the gun, by possessing each, the defendantcommitted separate and overt acts. The defendant could have chosen to possess the gun without theammunition and the ammunition without the gun. Indeed, the fact that the defendant chose to possessthe ammunition within the firearm exposed the public to far more danger than if he had chosen topossess the firearm unloaded or without ammunition altogether.

As to the second part of the analysis, the defendant's acts of unlawful possession of a weaponby a felon are certainly not lesser included offenses of each other. Therefore, as to the defendant'smultiple convictions of unlawful possession of a weapon by a felon, there exists no violation of theone-act, one-crime doctrine.

The dissent asserts that our determination that a felon who possesses a loaded gun commitstwo separate offenses may lead to absurd results. Particularly, the dissent suggests a hypotheticalsituation wherein a felon possesses 500 rounds of the same type of ammunition. The dissent fearsthat under our analysis, that felon could be charged and convicted 500 times. In no way does ourdetermination or analysis suggest this. The defendant here possessed several .22-caliber bullets andseveral .25-caliber bullets. However, the defendant was not charged and convicted according to thenumber of bullets he possessed. Rather, the defendant was charged and convicted once of possessing.22-caliber bullets and once of possessing .25-caliber bullets based on the fact that he possessed twodifferent types of ammunition in two distinct places.

We, on the other hand, are concerned by the dissent's seemingly inconsistent position in thiscase that the unloaded .22-caliber gun and the .22-caliber ammunition found right beside it cansupport two offenses while the loaded .25-caliber gun and ammunition cannot. Had we reached thesame conclusion as the dissent, we would be sending felons everywhere a message to load their gunswhen the police approach so as to avoid multiple charges and stricter penalties. The dissent's message to felons to load their guns would subject our police officers and the people of this state togreater risks.

We believe that our ruling in the present case mirrors a recent ruling made by the IllinoisAppellate Court, First District, in People v. McCarter, 339 Ill. App. 3d 876 (2003). In McCarter,police recovered an A-K assault rifle from a corner in a bedroom in the defendant's parents' house. McCarter, 339 Ill. App. 3d at 878. On top of a dresser in that same room, police found a 9-millimeter handgun loaded with 15 rounds. McCarter, 339 Ill. App. 3d at 878. Inside a dresserdrawer, police found numerous rounds of ammunition. McCarter, 339 Ill. App. 3d at 878. Finally,in a closet, police found an extended magazine for a .45-caliber handgun. McCarter, 339 Ill. App.3d at 878. The defendant was charged with and convicted of three counts of unlawful use of aweapon by a felon, based on his simultaneous possession of the assault rifle, the 9-millimeterhandgun, and the ammunition. McCarter, 339 Ill. App. 3d at 878.

On appeal, the McCarter court upheld the defendant's multiple convictions, finding that eachact of possession was separate and distinct. McCarter, 339 Ill. App. 3d at 881-82. The McCarter court's reasoning was similar to our reasoning above. In particular, the McCarter court explained thatsection 24--1.1 proscribes a felon's possession of " 'any firearm, in any situation.' " (Emphasis inoriginal.) McCarter, 339 Ill. App. 3d at 881, quoting People v. Gonzalez, 151 Ill. 2d 79, 87 (1992). The McCarter court further explained:

"[S]ection 24--1.1 was enacted 'to protect the health and safety of the public by deterringpossessions of weapons by convicted felons, a class of persons that the legislature hasdetermined presents a higher risk of danger to the public when in possession of a weapon'(emphasis added)[]. The danger to the public is obviously greater from several weaponsrather than only one weapon." McCarter, 339 Ill. App. 3d at 881-82, quoting People v.Crawford, 145 Ill. App. 3d 318, 321 (1986).

The dissent suggests that McCarter supports its position that possession of a loaded gun isone offense. The dissent claims that none of the ammunition charges in McCarter were predicatedon the ammunition that was loaded into the 9-millimeter handgun. The dissent maintains that thethree charges in McCarter were based upon the assault rifle, the handgun, and the ammunition thatwas found in the dresser drawer. However, the McCarter opinion does not indicate that the thirdcharge, the ammunition charge, was based upon the ammunition found in the dresser drawer. Contrary to the dissent's assertion, the ammunition charge may very well have been predicated on theammunition that was loaded into the gun.

The dissent further suggests that McCarter is more similar to People v. Deppert, 83 Ill. App.3d 375 (1980), than it is to the present case. In Deppert, a defendant was found with a .45-caliberloaded handgun, a .22-caliber loaded handgun, and 25 rounds of .22-caliber bullets but was chargedwith and convicted of only the possession of the .45-caliber handgun and the .22-caliber handgun. Deppert, 83 Ill. App. 3d at 376-79. Deppert is not similar to McCarter, nor is it relevant to thepresent case. The defendant in Deppert was charged with unlawful use of a weapon. Deppert, 83Ill. App. 3d at 376. Both the McCarter case and the case herein involve a different offense, unlawfulpossession of a weapon by a felon. Indeed, we note that section 24--1.1 of the Criminal Code, whichdefines the offense of possession of a weapon by a felon, was not even in existence until 1983, threeyears after the Deppert opinion was published. Moreover, the issue in Deppert did not involve theone-act, one-crime doctrine. Rather, the issue in that case was whether the search of the defendant'svehicle was reasonable. Deppert, 83 Ill. App. 3d at 380.

The dissent also cites to, along with Deppert, a laundry list of other cases that supposedlydetail situations wherein a defendant was found with a loaded gun but charged with only one offense. These cases are also dissimilar to McCarter and the instant case. The majority of them, like Deppert,involve the offense of unlawful use of a weapon which, again, is a different offense from the one atissue here. See, e.g., People v. Weir, 111 Ill. 2d 334 (1986); People v. Hurt, 175 Ill. App. 3d 970(1988); People v. Cook, 129 Ill. App. 3d 531 (1984); People v. Stewart, 122 Ill. App. 3d 546(1984); People v. Glass, 49 Ill. App. 3d 617 (1977); People v. Marbley, 34 Ill. App. 3d 434 (1975);People v. Adams, 30 Ill. App. 3d 396 (1975); People v. Rodgers, 2 Ill. App. 3d 507 (1971). Threeof the cases relied upon by the dissent do not even involve a weapons offense. See, e.g., People v.Colley, 173 Ill. App. 3d 798 (1988) (the defendant was charged with and convicted of residentialburglary); People v. Sockwell, 55 Ill. App. 3d 174 (1977) (the defendant was charged with andconvicted of burglary and forgery); People v. Hellemeyer, 28 Ill. App. 3d 491 (1975) (the defendantwas charged with and convicted of burglary and possession of burglary tools). Additionally, noneof these cases involve the one-act, one-crime doctrine.

Finally, the dissent overlooks the well-recognized legal principle that the decisions of whetherto initiate a criminal prosecution and which of several charges shall be brought are the sole provinceof the State's Attorney. People v. Pankey, 94 Ill. 2d 12, 16 (1983). Indeed, the fact that a defendantmay have committed three offenses does not mandate that the defendant be prosecuted for all threeoffenses.

We believe that our ruling is consistent with that of the supreme court in People v. Crespo,203 Ill. 2d 335 (2001). In Crespo, the defendant was charged with and convicted of aggravatedbattery and armed violence, based on the stabbing of one of his victims. Crespo, 203 Ill. 2d at 339. He had stabbed the victim three times. Crespo, 203 Ill. 2d at 338. On appeal, the supreme courtoverturned defendant's multiple convictions, albeit acknowledging that according to precedent, eachseparate stab "could have" supported a separate offense. (Emphasis omitted.) Crespo, 203 Ill. 2dat 344. However, the supreme court noted that the charging instrument had not differentiated amongthe three stabs. Crespo, 203 Ill. 2d at 345. The supreme court found that to apportion the acts forthe first time on appeal would be profoundly unfair. Crespo, 203 Ill. 2d at 345. It therefore held that,to sustain multiple convictions, an indictment must indicate that the State intends to treat the conductof the defendant as multiple acts. Crespo, 203 Ill. 2d at 345.

Here, the defendant's multiple convictions are in line with Crespo. The indictment clearlyapportioned each act of possession. Count I clearly charged the defendant with unlawful possessionof a weapon by a felon, based on the defendant's alleged possession of a .22-caliber handgun. CountIV charged the defendant based on his possession of a .25-caliber handgun. Count V charged thedefendant based on his possession of .25-caliber ammunition. Lastly, count VI charged the defendantbased on his possession of .22-caliber ammunition.

Finally, we are not persuaded by the defendant's reliance on People v. Manning, 71 Ill. 2d 132(1978). In Manning, the supreme court held that the simultaneous possession of more than onecontrolled substance could result in only one conviction to avoid offending the one-act, one-crimedoctrine. Manning, 71 Ill. 2d at 137. In making its decision, the supreme court relied heavily on thelanguage of section 402 of the Illinois Controlled Substances Act (the Act), which at that timeprovided that "[e]xcept as otherwise authorized by this Act, it is unlawful for any person knowinglyto possess a controlled substance." Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(a); Manning, 71 Ill. 2dat 134. The supreme court found that this language was devoid of legislative intent and, therefore,resolved the ambiguity in favor of leniency. Manning, 71 Ill. 2d at 137. Notably, Manning has sincebeen legislatively overruled. The current version of the Act explicitly authorizes multiple convictionsfor the unauthorized possession of multiple types of controlled substances. 720 ILCS 570/402 (West2002).

Manning is inapplicable to the present case. First, section 24--1.1 is not devoid of legislativeintent. As explained above, section 24--1.1 unambiguously prohibits a felon from possessing anyweapon, any firearm, or any firearm ammunition. Second, weapons, firearms, and ammunition areinherently different from controlled substances. As noted by the McCarter court, "controlledsubstances *** are statutorily prohibited in terms of volume, i.e., grams not number of packets, and*** it would have dire implications to impose the same liability on a defendant found in possession ofone switchblade knife as on a defendant found in possession of an entire arsenal." McCarter, 339 Ill.App. 3d at 880.

However, as the State concedes, the defendant's conviction of possession of a firearm withouta FOID card, in conjunction with his conviction of unlawful possession of a firearm under count I ofthe indictment, does stand in contravention of the one-act, one-crime doctrine. The defendant'soffense of unlawful possession of a weapon by a felon was based on the same conduct as his offenseof possession of a firearm without a FOID card. Particularly, both offenses were based on thedefendant possessing a .22-caliber handgun. Accordingly, being the lesser offense, we vacate thedefendant's conviction of possession of a firearm without a FOID card.

The defendant's next argument is that the trial court relied on several improper factors indetermining his sentence. Specifically, the defendant argues that the trial court erred in consideringhis February 27, 2001, arrest in Cleveland, Ohio, and his October 4, 2001, arrest in Waukegan. Thedefendant additionally argues that the trial court improperly concluded and considered that theSeptember 22, 1997, shooting incident he was involved in was gang-related.

A trial court ordinarily sits in the best position to make a reasoned decision as to theappropriate punishment in each case, and therefore, a trial court's sentencing determination is entitledto great deference. People v. Hicks, 101 Ill. 2d 366, 375 (1984). A reviewing court must notsubstitute its judgment for that of a sentencing court merely because it would have weighed mitigatingand aggravating factors differently. People v. Streit, 142 Ill. 2d 13, 19 (1991). As long as the trialcourt does not consider incompetent evidence or improper aggravating factors, or ignore pertinentmitigating factors, it has wide latitude in sentencing a defendant to any term within the statutory rangeprescribed for the offense. People v. Hernandez, 204 Ill. App. 3d 732, 740 (1990). Even reliance onan improper factor in aggravation does not necessarily require remand where such weight is soinsignificant that it did not lead to a greater sentence. People v. Pierce, 223 Ill. App. 3d 423, 441(1991).

In the instant case, it was clearly improper for the trial court to consider the defendant's recentarrests in Ohio and Waukegan. See People v. Wallace, 145 Ill. App. 3d 247, 255 (1986) (a defendant'spending charges should not be relied upon by a sentencing court). It was also improper for the trialcourt to conclude and consider that the September 22, 1997, incident was gang-related, as there wasno evidence in the record that the shooting was in fact gang-related. See People v. Fetter, 227 Ill.App. 3d 1003, 1009 (1992) (a sentence should be based upon the record and should not be groundedon speculation or conjecture).

Nevertheless, a reviewing court should not focus on a few words or statements of the trialcourt but should make its decision based on the record as a whole. See Fetter, 227 Ill. App. 3d at1010. With that in mind, the record reveals that the trial court did not place much significance on thedefendant's recent arrests. Accordingly, the trial court's consideration of the arrests was not in itselfreversible error. However, the record reveals that the trial court did place considerable weight on itsunfounded conclusion that the defendant's crimes arose from gang-related activity. During a hearingon the defendant's motion to reconsider sentence, the trial court addressed the defendant's concernsabout its consideration of his pending Ohio and Waukegan arrests:

"I have considered the defendant's motion to reconsider the sentence, and I find little merit toit in view of the fact that I did weigh all the factors in aggravation; all the mitigation. Thefactors [sic] the defendant refers to is one of the factors that were included, but much moreemphasis was placed and what was significant in my sentencing were the acts that thedefendant perpetrated that night, the gang war that he was engaged in; the paramount concernthat I had in protecting the public and deterring others from committing this type of activity."

Given the record, we cannot find insignificant the trial court's improper conclusion and considerationthat the defendant's actions were gang-related. Accordingly, even though the defendant's extensivecriminal record certainly supports sentences of five years' imprisonment, because the trial courtapparently placed great weight on an improper sentencing factor, we must vacate the defendant'ssentences and remand for a new sentencing hearing.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed in partand vacated in part, and the cause is remanded for a new sentencing hearing.

Affirmed in part and vacated in part; cause remanded.

O'MALLEY, J., concurs.

JUSTICE McLAREN, dissenting:

I respectfully dissent in part. Defendant's two convictions of unlawful possession of a weaponby a felon for both possessing a .25-caliber gun, and then, also for the ammunition that was containedin the gun, violate the one-act, one-crime doctrine. As People v. King, 66 Ill. 2d 551 (1977), instructsus, multiple convictions are improper where more than one offense is carved from the same physicalact. King, 66 Ill. 2d at 556. For this purpose, "act" is defined as "any overt or outward manifestationwhich will support a different offense." King, 66 Ill. 2d at 566. I cannot fathom how possessing aloaded gun constitutes two separate overt or outward manifestations. The act of possessing theweapon is the same act in this case as possessing the ammunition because the ammunition wascontained inside the weapon. Therefore, the act of possessing the weapon could not be separated fromthe act of possessing the ammunition. They are one and the same act.

There is an adage, "You have to break a few eggs to make an omelette." Its meaning relatesto the realization that change may entail prefatory acts. The adage is illustrative of the fact that whenone possesses an egg one simultaneously possesses the shell, yolk, and white. One overt act ofpossession results in the simultaneous indivisible possession of the three constituent elements of theegg. In order to separate the shell from the yolk and white, the shell must be broken and the yolk andwhite removed. Without the overt act of breaking a few eggs, the yolks and whites cannot beremoved to make an omelette. Likewise, without the overt act of unloading the gun, the magazineand the cartridges cannot be removed from the gun. Until the magazine and the cartridges areremoved from the gun, the act of possession is simultaneous and indivisible.

The majority cites People v. Crespo, 203 Ill. 2d 335 (2001), for the proposition that separateacts were committed. The fallacy in the analysis is that there were in fact three different stab woundsinvolved in the Crespo case. Crespo, 203 Ill. 2d at 338. Applying the facts in this case to Crespowould result in the following analysis. If there were one stab to the arm of the victim made byCrespo, and the indictments had described three separate acts as a stab wound that broke the skin ofthe victim, a stab wound that cut the bicep muscle, and a stab wound that cut the tricep muscle, thenCrespo would control. However, in Crespo there were three distinct stab wounds, not one stabwound described in three different ways. By misapplying Crespo, the majority has paved the way formultiple convictions based upon describing a single act in smaller discrete portions of the same act.Thus, the defendant in this case could have been successfully prosecuted for each cartridge possessedso long as the State described the "separate acts" as the possession of one cartridge. This would leadto the absurd result wherein a defendant possessing a "brick" of 500 rounds of .22-caliber long rifleammunition (a box, approximately 3 inches x 3 inches x 6 inches, containing 10 boxes with 50 roundsin each box) could be convicted of 500 counts of possessing a single cartridge and fined $500,000.

The majority dismisses the possibility of such an absurd result by stating that defendant here"possessed two different types of ammunition in two distinct places." Slip op. at 7. This statementignores the fact that, in this case, the gun and the ammunition found in the gun were located in exactlythe same place at exactly the same time. Still, the majority concludes that they each support separateconvictions. Thus, the majority's distinction does not prevent the absurd result that follows from itsfaulty reasoning.

The majority also states: "The defendant could have chosen to possess the gun without theammunition and the ammunition without the gun." Slip op. at 7. I submit that hypothetical facts thatinvolve separate acts do not alter the reality that, in this case, the possession of the gun and theammunition were one and the same act. The majority continues: "Indeed, the fact that the defendantchose to possess the ammunition within the firearm exposed the public to far more danger than if hehad chosen to possess the firearm unloaded or without ammunition altogether." Slip op. at 7. Isubmit that the majority does not cite to authority as to how or why public policy was not consideredin our supreme court's decision in People v. King. We are not to decide cases contrary to the lawbased upon our perception of public policy when it is inconsistent with established law and the realityof what actually transpired. The majority also claims that my interpretation will encourage thecarrying of loaded guns by felons. Slip op. at 8. I submit two reasons why this claim is unfounded.First, with concurrent sentences, there is no effective difference in punishment. This defendant hadtwo guns and ammunition for both. However, he is going to prison to effectively serve one term ofimprisonment, although convicted of five counts. Second, if this felon was concerned about multipleconvictions, I submit that he would have carried only one firearm and ammunition for that firearm. The majority asserts that the legislature intended to create two separate offenses forpossession of a loaded weapon. The majority argues that the legislature's intent is expressed by thelanguage in section 24--1.1 of the Criminal Code, which prohibits the possession of "any weapon ***or any firearm or any firearm ammunition." 720 ILCS 5/24--1.1 (West 1996). However, I believethis language is ambiguous regarding intent to create separate offenses for possession of a loadedweapon. In any event, the majority fails to realize that the acts it claims are separate are actually oneact.

The current version of the Illinois Controlled Substances Act explicitly authorizes multipleconvictions for the unauthorized simultaneous possession of different types of controlled substances. See 720 ILCS 570/402 (West 2002). Section 24--1.1, involved here, does not contain the explicitlanguage found in the Controlled Substances Act. Because the legislature has not made it explicitlyclear that it intended to permit multiple offenses for the possession of a loaded weapon, we mustresolve the ambiguity in favor of leniency. See People v. Manning, 71 Ill. 2d 132, 137 (1978)(subsequently overturned by 720 ILCS 570/402 (West 2002); see also People v. Davis, 199 Ill. 2d130, 135 (2002) (criminal or penal statutes are to be strictly construed in favor of the accused, andnothing should be taken by intendment or implication beyond the obvious or literal meaning of thestatute).

Using the majority's reasoning, defendant could have been charged with and convicted of fiveseparate offenses of unlawful possession for each of the five bullets contained in the clip that wascontained in the weapon. Interestingly, the State did not charge defendant in that manner, nor wasthe defendant charged in that manner in People v. McCarter, 339 Ill. App.3d 876, 878 (2003), citedby the majority as "mirroring" this case. I recognize that the Appellate Court, First District, held inMcCarter that multiple convictions can stand for simultaneous possession of a rifle, handgun, andammunition. But, I believe McCarter supports my position rather then the majority's. A carefulreading of McCarter reveals that police found a loaded A-K 47 assault rifle in the corner of thedefendant's bedroom , a 9-millimeter handgun loaded with 15 rounds on top of a dresser in that sameroom, and numerous rounds of ammunition in a dresser drawer. McCarter, 339 Ill. App. 3d at 878. Yet, the defendant was charged with and convicted of only three counts of unlawful use of a weapon. If the prosecutor had followed the majority's reasoning, the defendant in McCarter would have beencharged with at least five counts of unlawful use of a weapon: one count each for the assault rifle, theammunition contained in the rifle, the 9-millimeter handgun, the ammunition contained in thehandgun, and the ammunition found in the dresser drawer. However, the ammunition that supported the only count relating to ammunition was not contained in a weapon; rather, it was found in a dresserdrawer. The defendant in McCarter was not charged separately for the ammunition contained in therifle and handgun. Therefore, at worst, McCarter is silent regarding the issue presented here, and,at best, it supports my position. At a minimum, this case does not mirror McCarter as the majorityclaims.

It would appear that McCarter mirrors People v. Deppert, 83 Ill. App. 3d 375, 379 (1980). In Deppert, the defendant was convicted of two counts of unlawful use of a weapon. He was inpossession of a .45-caliber semiautomatic pistol loaded with one round of ammunition; a fully loaded.22-caliber semiautomatic pistol, and at least 25 rounds of .22-caliber long rifle cartridges. Under themajority's logic, there was a possibility of five counts of unlawful use of a weapon (the .45-caliberpistol, the ammunition inside the pistol, the .22-caliber pistol, the ammunition inside the pistol, andthe ammunition outside the pistols). Despite this possibility, there were only two convictions.

Finally, although I am aware that absence of evidence is not necessarily evidence of absence,I would like to point out that neither the State nor the majority nor I have found a case wherein aloaded gun supported two convictions of unlawful use of a weapon based upon the possession of thefirearm and the ammunition contained therein. I would submit that one would expect to find a caseon point. (Contrary to what the majority claims, McCarter is not such a case.) The following arecases wherein possession of a loaded gun was charged as only a single offense of unlawful use of a weapon despite the fact that the gun contained ammunition: People v. McCarter, 339 Ill. App. 3d 876(2003); People v. Hurt, 175 Ill. App. 3d 970, 972 (1988); People v. Colley, 173 Ill. App. 3d 798, 811(1988); People v. Weir, 111 Ill. 2d 334, 336 (1986); People v. Cook, 129 Ill. App. 3d 531, 535(1984) ; People v. Stewart, 122 Ill. App. 3d 546, 548 (1984); People v. Deppert, 83 Ill. App. 3d 375,379 (1980); People v. Sockwell, 55 Ill. App. 3d 174, 176 (1977); People v. Glass, 49 Ill. App. 3d617, 619 (1977); People v. Marbley, 34 Ill. App. 3d 434, 437 (1975); People v. Adams, 30 Ill. App.3d 396 (1975) (abstract of op.); People v. Hellemeyer, 28 Ill. App. 3d 491, 499 (1975); People v.Rodgers, 2 Ill. App. 3d 507, 511 (1971).

The majority attempts to distinguish these cases on sundry grounds. The distinctions drawnby the majority fail to address the similarity between a loaded firearm in the possession of a felon anda loaded firearm in the possession of a misdemeanant. Applying the analysis of the majority to theadage, "You have to break a few eggs to make an omelette," the majority would claim that the adage applies only to chicken eggs. The majority would disavow the adage when it comes to duck, goose,or ostrich eggs.

I believe the majority's definition defies reality and conflicts with the doctrine of one act, onecrime contained in People v. King. Thus, I do not believe this defendant should be convicted twicefor the same act, and I must respectfully dissent.