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People v. Lincoln

OPINION FILED AUGUST 7, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DERRLYN LINCOLN, A/K/A HOSEA CARTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Vermilion County; the Hon. James K. Robinson, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 12, 1986.

Following a jury trial, defendant was found guilty of two counts of armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), theft over $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1), possession of a stolen or converted motor vehicle (Ill. Rev. Stat. 1983, ch. 95 1/2, par. 4-103(a)), and unlawful use of a weapon by a felon (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 24-1.1). Judgment was entered on the count of armed violence based upon theft over $300, the count of theft over $300, and the unlawful-use-of-weapons count. Judgment was withheld on the other two counts. Defendant was sentenced to concurrent terms of 12 years' imprisonment for the one count of armed violence, 5 years' imprisonment for the theft over $300 charge, and 5 years' imprisonment on the charge of unlawful use of a weapon by a felon. On appeal, defendant challenges only his conviction for the offense of armed violence. The facts relating to that charge follow. On October 15, 1984, defendant was found in possession of an automobile which had been stolen from a convenience store in Urbana. As defendant was being removed from the automobile, one of the officers saw that defendant had a gun in his waistband. This matter was brought to the attention of the other officers present. The officers seized defendant as he was reaching for the gun and took the gun away from him.

At defendant's trial, Krail Lattig, a State of Illinois forensic scientist who specializes in firearms, testified on behalf of the defense. When defense counsel questioned Lattig about the gun taken from defendant, the State objected on relevancy grounds. Although the court initially sustained the objection, it later reconsidered its ruling and allowed Lattig to testify as to whether the gun was operational.

Lattig testified that the gun was "not in proper operating condition." Lattig had loaded the gun with live ammunition, but the gun could not fire and the cylinder would not rotate. The gun could not fire because the blow from the hammer was too light to ignite the primer of the ammunition. Lattig testified that if the gun were in the same condition on October 15, 1984, as it was on the day he examined it, the gun could not function properly on October 15.

The parties stipulated that the gun examined by Lattig was in substantially the same condition on October 15, 1984, as it was on October 22, 1984, the day Lattig examined it.

Defendant tendered several jury instructions explaining the offense of armed violence with a category I weapon and armed violence with a category II weapon. For example, defendant's instruction No. 2 provided as follows:

"A person commits armed violence with a category I weapon when he commits the offense of theft over $300.00 while armed with a category I weapon.

A person is considered armed with a category I weapon when he carries on or about his person or is otherwise armed with a handgun that is operable."

Defendant's instruction No. 4 provided as follows:

"A person commits armed violence with a category II weapon when he commits the offense of theft over $300.00 while armed with a category II weapon.

A person is considered armed with a category II weapon when he carries on or about his person or is otherwise armed with a handgun that is not operable."

Similar instructions and verdict forms were also tendered by defendant. The court refused to give defendant's tendered instructions and verdict forms concerning the distinction between armed violence with a category I weapon and armed violence with a category II weapon. The court also refused to give defendant's instructions defining operable and inoperable handguns. Instead, the court instructed the jury, over defendant's objection, as follows:

"A person commits Armed Violence when he commits the offense of Theft Over $300.00 while armed ...


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