Find Legal Information

___________________________________________________________________________________

JUSTICE KNECHT delivered the opinion of the court:

After a jury trial in Macon county circuit court,defendant, Thaddeus Neylon, was found guilty of armed violence(personally discharging a firearm while committing a felony notexcepted by statute) (720 ILCS 5/33A-2(b) (West 2000)), armedviolence (armed with a firearm while committing a felony notexcepted by statute) (720 ILCS 5/33A-2(a) (West 2000)), unlawfulpossession of cannabis with intent to deliver (720 ILCS 550/5(c)(West 2000)), and unlawful possession of a controlled substancewith intent to deliver (720 ILCS 570/401(c)(2) (West 2000)). Atsentencing, the trial court found the two armed violence convictions merged and sentenced defendant to a prison term of 20 yearson armed violence (discharging a firearm) and concurrent terms offour years and one year, respectively, for unlawful possession ofa controlled substance with intent to deliver and unlawfulpossession of cannabis with intent to deliver.

Defendant appealed, claiming (1) armed violence (personally discharging a firearm) was not a statutory offense at thetime of the charged act; (2) the statute providing for theoffense of armed violence (personally discharging a firearm) didnot have a penalty provision in effect on the date he committedthe charged act; (3) the State failed to provide sufficientevidence to support any of the four convictions; (4) trialcounsel provided ineffective assistance; and (5) the trial courtabused its discretion in sentencing defendant for armed violence(personally discharging a firearm). We affirm in part, reversein part, and remand for issuance of an amended judgment ofsentence.

Evidence for the State at trial was as follows: OnMarch 13, 2000, Decatur police officer Marty Lowhorn was sent toinvestigate a "shots fired" call on the 400 block of E. GrandStreet at approximately 11:59 a.m. He arrived at the scene andsaw Officer Thomas handcuffing defendant in front of the house at431 E. Grand. Defendant was placed in Officer Lowhorn's car. After speaking with several witnesses in the area, OfficerLowhorn looked on the east side of the house and found five spent.38 caliber shell casings in the grass and dirt between the houseat 431 E. Grand and the vacant house next door. Officer Lowhornasked defendant if he could search the house at 431 E. Grand fora weapon and defendant replied it was not his house.

At that time, Teresa Jenkins arrived and was askedpermission to search the house. Defendant asked to speak toJenkins and was allowed to do so. Jenkins then told OfficerLowhorn she would take him to a gun. Jenkins pointed out acloset in one of the bedrooms where Officer Lowhorn found a .38-caliber semiautomatic pistol. The magazine was empty and thepistol was not loaded.

A car parked behind the house had license plate THADD20. Officer Lowhorn searched the vehicle and found a box of live.38-caliber cartridges.

As Officer Lowhorn was transporting defendant to thepolice station, defendant told him he had heard Lowhorn talkingand Lowhorn did not have any witnesses who saw defendant shootbecause Lowhorn had been inside. Defendant also stated lots ofpeople have a range in their house.

Jeff McClain, an inspector with the Illinois StatePolice Drug Task Force, took part in searching the house at 431E. Grand on March 13, 2000, after Jenkins gave her consent. Inthe top drawer of a dresser located in one of the bedrooms, hefound a plastic bag containing what were later identified byMichael Cravens, a forensic scientist at the Illinois StatePolice forensic laboratory specializing in drug analysis, as a12.8-gram bag of cocaine and two bags containing 13.6 grams ofcannabis. McClain found a small electronic digital scale and apostal scale in the same dresser drawer. Cravens later foundcocaine and cannabis residue on the digital scale. A rolled-upshirt containing a 9-millimeter magazine containing eight liverounds of ammunition and several documents with defendant's nameon them for that address were also found in the same dresserdrawer.

On the rear porch of the residence was a refrigerator.McClain found a small plastic bag, which Cravens later foundcontained .2 grams of cocaine, on top of that refrigerator.

When arrested, defendant had $770 on his person. Atthe police station, defendant admitted ownership of the 9-millimeter magazine and digital scale, claiming he found the magazineand had been given the scale. He denied knowledge of the narcotics. He claimed Jenkins' brother did not like him and told himhe was going to set him up by planting drugs. Defendant alsotold McClain he was under the impression it was permissible toshoot a gun on his own property.

Officer Edward Root, a Decatur police officer assignedto the Illinois State Police Narcotics Task Force, testified asan expert on narcotics distribution and use. He stated thescales found were used in the distribution of narcotics becausedealers, not users, typically measure the amount of drugs. Inaddition, he testified the amounts of cocaine and cannabis foundwere greater than user quantities. He also stated firearms arecommonly found in the drug distribution business because of thelarge sums of money involved.

Vicky Will testified she is a forensic scientist withthe Illinois State Police crime lab specializing in firearmsidentifications. She tested the five spent .38-caliber shellcasings with new castings she fired from the .38-caliber gunfound in the closet. Three of the five tested were identified ashaving been fired from the gun.

Teresa Jenkins testified for the defense. Jenkinsrents the house at 431 E. Grand and lives there with her childrenand, more recently, defendant. She and defendant left for aweekend in Chicago on March 10 and returned on the morning ofMarch 13, 2000. Prior to leaving, Jenkins gave keys to her hometo Patricia Brooke, a former neighbor, to clean the house, and toJohn Cummings, a relative of her stepfather, to check on thehouse occasionally.

Jenkins left the home around 11 a.m. on March 13, 2000,to get lunch, and, when she returned, the police were there. After a discussion with defendant, Jenkins gave police permissionto search the house. She knew defendant had a gun but thought hehad left it at his mother's home in Chicago. Defendant told herwhere the gun was, and she showed the police. Jenkins consentedto a further search of the house. She had no idea there wascannabis or cocaine in the top dresser drawer. Both she anddefendant had items in that drawer. Jenkins had two cellularphones there as well as paper, bills, and receipts in her name;she had placed defendant's papers there as well. Jenkins identified the room where the dresser was located as her and defendant's bedroom.

John Cummings testified he got a set of keys fromJenkins on March 9 or 10 to use her van and to check on her houseover the weekend. When he checked on the house, he found Brooke having a party with three men who were smoking pot in the livingroom. He also smelled the burning odor of crack cocaine in thehouse. Cummings started to look around the house and saw Brookecoming out of Jenkins' bedroom. He asked her what she was doingthere. He took back the key to the house from Brooke, puteveryone out of the house, and locked it up.

The jury found defendant guilty of (1) unlawful possession of a controlled substance with intent to deliver, (2)unlawful possession of cannabis with intent to deliver, (3) armedviolence (armed with a handgun), and (4) armed violence (personally discharging a handgun).

Defendant contends the State failed to prove him guiltybeyond a reasonable doubt of armed violence (personally discharging a firearm) as the evidence was insufficient to sustain aconviction. We agree with defendant.

When a reasonable doubt argument is raised, the relevant question is whether, "'after viewing the evidence in thelight most favorable to the prosecution, any rational trier offact could have found the essential elements of the crime beyonda reasonable doubt.'" (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985), quotingJackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99S. Ct. 2781, 2789 (1979). Every element of the offense must beproved beyond a reasonable doubt. People v. Tye, 141 Ill. 2d 1,15, 565 N.E.2d 931, 938 (1990). This standard of review applieswhether the evidence is direct or circumstantial. People v.Pintos, 133 Ill. 2d 286, 291, 549 N.E.2d 344, 346 (1989).

To prove defendant guilty of armed violence (personallydischarging a firearm) as charged in this case, the State had toprove the statutory elements of the offense: (1) defendantknowingly possessed a controlled substance, cocaine; (2) hepersonally discharged a firearm; and (3) when he discharged thefirearm he did so while committing a felony not expressly excepted by statute, unlawful possession of a controlled substance. 720 ILCS 5/33A-2(b) (West 2000).

Defendant does not contest the white powdery substancefound in the bedroom tested positive for cocaine, a controlledsubstance. To establish possession, the State must prove defendant had knowledge of the presence of the substance and had it inhis immediate and exclusive dominion or control. People v.Schmalz, 194 Ill. 2d 75, 82, 740 N.E.2d 775, 779 (2000); Gramesv. Illinois State Police, 254 Ill. App. 3d 191, 203, 625 N.E.2d945, 955 (1993). Knowledge can rarely be proved directly but bya defendant's actions, declarations, or conduct from which aninference of knowledge may be drawn. People v. Roberts, 263 Ill.App. 3d 348, 352, 636 N.E.2d 86, 90 (1994).

Possession may be actual or constructive. Actualpossession need not be demonstrated if constructive possessioncan be inferred. Grames, 254 Ill. App. 3d at 203, 625 N.E.2d at955. Constructive possession exists where an intent and capability to maintain control and dominion over the substance exists. Grames, 254 Ill. App. 3d at 203, 625 N.E.2d at 955. Constructivepossession may be inferred from the facts, but evidence establishing constructive possession is often entirely circumstantial. People v. Minniweather, 301 Ill. App. 3d 574, 580, 703 N.E.2d912, 916 (1998).

Where narcotics are found on the premises rather thanon a defendant, the State must prove the defendant "had controlof the premises in order to permit the inference that the defendant had knowledge and control over the narcotics." People v.Adams, 242 Ill. App. 3d 830, 832, 610 N.E.2d 763, 765 (1993). The requirement that control of a premises be exclusive does notmean possession may not be joint. Roberts, 263 Ill. App. 3d at353, 636 N.E.2d at 90.

Here, the cocaine was found in the top dresser drawerin a bedroom shared by an adult man and woman. The contents ofthat drawer also included several documents with defendant's nameand address at 431 E. Grand as well as a digital scale and a 9-millimeter magazine with eight live rounds of ammunition. Jenkins testified defendant shared the house, bedroom, anddresser drawer with her and had lived there for a number ofmonths, possibly a year. Defendant told police officers thedigital scale and magazine were his. From this evidence thetrier of fact could conclude defendant knowingly possessed thecocaine found in the dresser drawer.

Defendant argues, however, there is scant evidence hepersonally discharged a firearm. The State contends defendant isbarred from asserting this argument on appeal as his trialcounsel conceded this point in his opening statement and closingargument. In support of this argument, the State cites R.B.Hayward Co. v. Lundoff-Bicknell Co., 365 Ill. 537, 541, 7 N.E.2d289, 291 (1937) (which held a defendant is precluded from urgingerror on matters inconsistent with admissions in his pleadings oron theories different from those presented to the trial court),and Houdek v. Ehrenberger, 397 Ill. 62, 70, 72 N.E.2d 837, 841(1947) (which held a fact admitted in the trial court cannot becontested on appeal).

Defense counsel's statements at trial were not evidenceor facts. In his opening statement, counsel told the jurydefendant would testify to shooting the gun at an animal that hadentered the house though a hole in the attic and he thoughtfiring a gun in the house was not an offense because he knowspeople who have firing ranges in their basements. But, defendantdid not, however, testify.

In closing argument, defense counsel argued defendant'sadmission of ownership of the gun by claiming that tellingJenkins where it was and directing her to show the police bolstered the argument defendant did not know about the existence ofthe drugs in the house because it would make no sense for him toadmit ownership of the gun and ownership of other items in thedresser drawer when there were also drugs located there.

A review of counsel's statements shows defendant didnot admit firing the gun. Counsel's opening statement and finalargument are not judicial admissions and do not preclude defendant from arguing on appeal the State failed to prove he discharged the firearm.

The State's evidence defendant fired the gun includedstatements attributed to defendant while in police custody, i.e., Officer Lowhorn did not have any witnesses who saw him shootbecause he was inside; lots of people have a range in theirhouse; and he was under the impression it was permissible toshoot a gun on your own property. There was also evidence fivespent .38-caliber shell casings were found in the yard of thehouse and three of the five had been fired by defendant's gun. The police had responded to a call of shots fired in the 400block of E. Grand some time after 11 a.m. on March 13, 2000.

None of this evidence proved defendant fired the guneither inside or outside the house on March 13. The presence ofthe shell casings does not prove the weapon was fired at thatlocation nor does it tell when the shots were fired or by whom. The exact time of the call made to the police was not in therecord. No witnesses presented at trial said they saw defendantshoot. His statements to police officers were not admissions hewas shooting at that time.

There is a time nexus between the elements of theoffense alleged. Defendant must possess and discharge hisfirearm while in possession of the cocaine. This term is astatutory term and, therefore, should be given its plain andordinary meaning. See In re E.B., 314 Ill. App. 3d 699, 704, 731N.E.2d 1264, 1268 (2000). While means "as long as" and "duringthe time that." Merriam-Webster's Collegiate Dictionary 1342(10th ed. 2000).

There no proof defendant personally fired the gun.There was no proof he did so during the time that he was committing the felony of possession of a controlled substance. Defendant was not proved guilty of armed violence (personally discharging a firearm) beyond a reasonable doubt.

Defendant next argues the State failed to prove himguilty beyond a reasonable doubt of armed violence (armed with afirearm) as the evidence was insufficient to sustain a conviction. Again, we agree with defendant because of the holding inPeople v. Smith, 191 Ill. 2d 408, 413, 732 N.E.2d 513, 516(2000).

We note defendant was not sentenced on this offense andno conviction was entered. The count for armed violence (armedwith a firearm) was merged with the count of armed violence(personally discharging a firearm) for sentencing purposes. Rather than send this case back to the trial court for resent-encing on this armed violence count (armed with a firearm) aftervacating the conviction on the other count, we will addressdefendant's arguments now.

A person commits armed violence when, while armed witha dangerous weapon, he commits any felony defined by Illinoislaw. 720 ILCS 5/33A-2(a) (West 2000). A person is consideredarmed when he or she carries on or about his person or is otherwise armed with a Category I or Category II weapon. 720 ILCS5/33A-1(c) (West 2000). A handgun is a Category I weapon. 720ILCS 5/33A-1(c)(2) (West 2000). The defendant must be personallyarmed or have "some type of immediate access to or timely controlover the weapon." (Emphasis in original.) People v. Condon, 148Ill. 2d 96, 110, 592 N.E.2d 951, 958 (1992).

The armed violence statute is the legislature's response to the growing incidence of violent crime because thelegislature recognized a felon with immediate access to a weaponwas predisposed to use it when confronted with resistance, eitherfrom victims, law enforcement representatives, or other criminals. Condon, 148 Ill. 2d at 109, 592 N.E.2d at 957.

There is no question defendant owned the gun and hadaccess and control over it. However, when he was arrested, hewas unarmed and outside the house while the gun was unloaded andin a closet inside the house. Ammunition fitting the gun was notfound with the gun. As previously noted, defendant was inpossession of a controlled substance. The question becomeswhether defendant possessed cocaine while (i.e., during the timethat) he was armed with the gun.

The State argues the determination of whether a defendant is armed, for purposes of the armed violence statute, is notmade at the moment of arrest (People v. Harre, 155 Ill. 2d 392,401, 614 N.E.2d 1235, 1240 (1993)) and, in the context of a drugtransaction, the armed violence statute does not require theweapon and drugs be in the same place at the same time. Peoplev. Thomas, 242 Ill. App. 3d 266, 276-77, 609 N.E.2d 1067, 1075(1993). There are factual differences between Harre and Thomasand this case, however.

In Harre the defendant was arrested standing next tohis open car window where a loaded gun lay on the front seat ofthe car and moments earlier he had been en route to a drugtransaction with the gun easily accessible to him. Harre, 155Ill. 2d at 400, 614 N.E.2d at 1239. In Thomas, two defendantswere involved in the drug transaction in a parking lot. Onedefendant was in a car where the gun was while the drugs were ina car several parking spaces away. The other defendant was inand around the car containing the gun and his accomplice obviously had access to it. Both defendants were found guilty ofarmed violence. Thomas, 242 Ill. App. 3d at 277, 609 N.E.2d at1075.

The facts in the present case are more analogous tothose in Smith and People v. Shelato, 228 Ill. App. 3d 622, 592N.E.2d 585 (1992), where the defendants' armed violence convictions were reversed on appeal. In Smith, the defendant disposedof his weapon by dropping an unloaded gun out of the window ofthe house as police officers approached to arrest him. Thesupreme court concluded the facts did not support a guiltyverdict for armed violence and relied on defendant's lack ofpropensity for violence and his relieving himself of his weaponon the approach of the police. The court found a conviction forarmed violence under these circumstances would not serve thestatute's purpose. Smith, 191 Ill. 2d at 412-13, 732 N.E.2d at515.

In Shelato, the defendant had a loaded gun wrapped in arag in a zipped duffle bag underneath 60 bags of cannabis. Whenthe police officers arrived with a search warrant, defendant wastalking on the telephone, across the room from the duffle bag. During the police search of the premises, defendant was told tosit on a couch near the location of the duffle bag on the floor. This court found the armed violence conviction could not standbecause, to reach the gun, defendant would have to unzip the bag,dig underneath many bags of cannabis, and unwrap the gun from therag, all under the watchful eye of police officers. Shelato, 228Ill. App. 3d at 627-28, 592 N.E.2d at 589. If a weapon is notimmediately accessible to the felon, the danger the statute seeksto curb is not present. Shelato, 228 Ill. App. 3d at 627, 592N.E.2d at 589.

In this case it is true the gun was not immediatelyaccessible to defendant. When he was arrested outside the house,the gun was in the house, in a closet and unloaded. The ammunition was not kept with the gun. Even if there were evidencedefendant had been in the house minutes before his arrest, thegun was still not immediately accessible to him unless he werestanding next to the open closet door and the gun were loaded. Under the facts of this case, the precedent of Smith suggests thedanger the armed violence statute seeks to curb was not presentand the evidence was not sufficient to support a conviction forarmed violence (possession of a firearm).

Justice McMorrow's dissent in Smith (191 Ill. 2d at419, 732 N.E.2d at 518-19) criticizes the majority decisionbecause it, sub silentio, overrules Harre. We believe thecriticism is justified. The reasoning in Smith rejects a coreprinciple in Harre--i.e., "the determination of whether a defendant is armed is not made at the moment of arrest." Harre, 155Ill. 2d at 401, 614 N.E.2d at 1240. Defendant Neylon was notarmed when he was arrested outside the house, but at some earliertime he was in the house with the drugs and had some degree ofaccess to the weapon. Whether that evidence would have beensufficient for a conviction under Harre is a question we need notanswer. Instead, we are constrained to hold that if Smith, whothe police saw drop his weapon out a window as they approached,is not guilty of armed violence, then a conviction of defendantin this case cannot stand. We believe the dissents in Smith areconsistent with precedent and public policy, but we must adhereto the majority decision.

Defendant next contends the State failed to prove himguilty of either unlawful possession of cannabis with intent todeliver and unlawful possession of a controlled substance withintent to deliver. As we previously discussed, the evidence wassufficient to find defendant possessed a controlled substance,cocaine. The evidence regarding possession of cannabis isvirtually identical. Defendant does not contest the testimony bythe State's forensic scientist that the other substance found inhis dresser drawer tested positive for cannabis. The cannabiswas found in the same location as the cocaine, and the evidencewas sufficient to support a finding defendant was also in possession of cannabis.

In an unlawful possession with intent to delivercontraband case, intent is a mental state seldom susceptible ofdirect proof but which must be inferred from circumstantialevidence. People v. Burke, 136 Ill. App. 3d 593, 600, 483 N.E.2d674, 680 (1985).

"This issue involves the examination of thenature and quantity of circumstantial evidence necessary to support an inference ofintent to deliver. In controlled substancesprosecutions, many different factors areprobative of intent to deliver. Such factorsinclude whether the quantity of controlledsubstance in defendant's possession is toolarge to be viewed as being for personalconsumption, the high purity of the drugconfiscated, the possession of weapons, thepossession of large amounts of cash, thepossession of police scanners, beepers orcellular telephones, the possession of drugparaphernalia, and the manner in which thesubstance is packaged. [Citation.] The quantity of controlled substance alone can besufficient to prove an intent to deliver. This is the case only where the amount ofcontrolled substance could not reasonably beviewed as designed for personal consumption."

People v. Beverly, 278 Ill. App. 3d 794, 799,

663 N.E.2d 1061, 1065 (1996), citing People v.

Robinson, 167 Ill. 2d 397, 408, 657 N.E.2d 1020,

1026-27 (1995).

In this case, one plastic bag found in the dresserdrawer contained 12.8 grams of cocaine. The other plastic bagcontained 13.6 grams of cannabis. Officer Root testified theamount of cocaine found would provide 65 individual dosage unitswith a street value of $1,300 total. The cannabis could provide25 to 60 dosage units depending on how it was smoked and wouldhave a street value of $136.

Officer Root further stated the digital scale is of thetype commonly used to weigh drugs for sale; this scale costsbetween $75 and $100. It is not the type of scale individualusers would own or use because most prefer to spend their moneyon drugs. The postal scale would be used when small amounts ofcocaine or cannabis are sold. The drug trade is a cash-and-carrybusiness with a large profit margin and dealers frequently useguns for protection. Defendant had $770 in cash on him when hewas arrested and admittedly owned a gun. Officer Root furthernoted no drug paraphernalia for individual consumption was found. The evidence is sufficient to find beyond a reasonable doubtdefendant unlawfully possessed both the cocaine and the cannabiswith the intent to deliver.

Defendant next argues he received ineffective assistance from his trial counsel when counsel failed to make an offerof proof to enter into evidence a written and notarized confession by Patricia Brooke that the drugs in the dresser drawer werehers because she had hidden them there when confronted byCummings. Prior to trial, this written statement by Brooke hadbeen provided to the State in discovery. Defense counsel thensubpoenaed Brooke for trial. The trial court admonished Brookeoutside the presence of the jury that she could be incriminatingherself by testifying; she then asserted her fifth amendmentright against self-incrimination and refused to testify.

Defense counsel told the trial court he had a writtenconfession by Brooke that he wanted to use. The trial courtasked him if it was not hearsay. Counsel replied it was, and thetrial court then stated that was the end of the matter and thetrial would move on.

Defendant raised this issue in his posttrial motion butincluded more information about the reliability of the statement. The trial court questioned why this information was not presentedat trial in the form of an offer of proof. Defense counselreplied he was under the impression the trial court would nothave entertained such an offer because of its comments concerningthe statement being hearsay and its desire to move on with thetrial. Defendant contends his counsel's failure to make an offerof proof deprived him of exonerating evidence at trial as he hadenough evidence to support the reliability of the statement andto allow the admission of it into evidence.

To establish ineffective assistance of counsel, adefendant must show (1) the conduct of defense counsel fell belowan objective standard of reasonableness and (2) but for counsel'sdeficient performance, a reasonable probability exists theoutcome of the trial would have been different. Strickland v.Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct.2052, 2068 (1984). To establish ineffective assistance ofcounsel, a defendant must prove both prongs of the Stricklandtest. People v. Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063,1079 (1998). If it is easier to dispose of a claim for lack ofsufficient prejudice accruing to defendant, that course should betaken. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699, 104 S.Ct. at 2069.

Defense counsel argued at the hearing on the posttrialmotion he had evidence to support a finding of reliability as tothe written statement by Brooke including: the fact Brooke madeher statement to Jenkins right after Brooke became aware of thecharges against defendant, it was a statement against penalinterest, and it was corroborated by other evidence. The recorddoes not contain what the offer of proof would actually havebeen. Without this evidence, we cannot determine whether defendant would have been permitted to have admitted the potentiallyexonerative evidence. When the appellate record does not permitsuch a determination to be made, this court has consistentlyfound a defendant's claims of ineffective assistance are betterserved in the context of a postconviction petition where acomplete record can be made. See People v. Holloman, 304 Ill.App. 3d 177, 186-87, 709 N.E.2d 969, 975 (1999); People v. Kunze,193 Ill. App. 3d 708, 725-26, 550 N.E.2d 284, 296 (1990).

Finally, defendant contends the trial court abused itsdiscretion in sentencing him to a 20-year prison term for hisarmed violence (personally discharging a firearm) conviction. Aswe have reversed his conviction for armed violence (personallydischarging a firearm), we need not discuss defendant's argumentsregarding his sentence. We also need not address defendant'sarguments regarding the constitutionality of the armed violencestatute because we have concluded the State did not prove eithercharge of armed violence.

For the foregoing reasons, we reverse defendant'sconvictions for armed violence (personally discharging a firearm)and armed violence (possession of a firearm), affirm his convictions and sentences for unlawful possession of cannabis withintent to deliver and unlawful possession of a controlled substance with intent to deliver, and remand for issuance of anamended judgment of sentence.

Affirmed in part and reversed in part; cause remandedwith directions.

STEIGMANN, J., concurs.

MYERSCOUGH, J., specially concurs in part and dissentsin part.

JUSTICE MYERSCOUGH, specially concurring in part anddissenting in part:

I would affirm the trial court in full. The jury founddefendant guilty of armed violence (personally discharging afirearm) and armed violence (armed with a firearm) beyond areasonable doubt. The evidence, viewed in the light most favorable to the prosecution, was sufficient to prove beyond a reasonable doubt that defendant was guilty of those charges and,therefore, sufficient to sustain those convictions.

For these reasons, I would affirm.