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05/01/95 PEOPLE STATE ILLINOIS v. JAY HESTER

May 1, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAY HESTER, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Adams County. No. 93CF114. Honorable Dennis K. Cashman, Judge Presiding.

As Corrected May 31, 1995.

Honorable Robert J. Steigmann, J., Honorable James A. Knecht, P.j., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Steigmann

The Honorable Justice STEIGMANN delivered the opinion of the court:

In September 1993, a jury found defendant, Jay Hester, guilty of eight counts of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 1992)), and in October 1993, the trial court sentenced him to eight concurrent three-year terms in prison. Defendant appeals, arguing that (1) the trial court erred in allowing the State to amend the information during trial; (2) the trial court erred in instructing the jury; (3) the prosecutor's closing argument constituted reversible error; and (4) the State failed to prove him guilty beyond a reasonable doubt.

We affirm.

I. BACKGROUND

In March 1993, two police officers went to defendant's residence to serve a "civil warrant." Defendant's wife answered the door and informed the officers that defendant was not there. After she consented to a search of the house to locate defendant, the officers found him in the attached garage. During the course of the search, they observed several weapons in the house. The officers later learned that defendant's firearm owner's identification (FOID) card was revoked due to a prior felony conviction and that defendant's wife had never been issued a FOID card.

In April 1993, the officers obtained and executed a search warrant for weapons in defendant's residence, which ultimately produced nine rifles and shotguns. At trial, the jury found defendant guilty of eight counts of unlawful possession of a weapon by a felon, and acquitted him of theft and one count of unlawful possession of a weapon by a felon.

II. ANALYSIS

A. Amending the Information During Trial

Defendant first argues that the trial court erred by permitting the State to amend the information during trial. The State responds that defendant has waived this issue for review by failing to include it in his post-trial motion. We agree.

In order to preserve an alleged error for appeal, a defendant must both object at trial and refer to the alleged error in a written post-trial motion. ( People v. Cloutier (1993), 156 Ill. 2d 483, 507, 622 N.E.2d 774, 786, 190 Ill. Dec. 744.) Although defendant objected at trial to the State's amending the information, he failed to include this issue in his post-trial motion.

Moreover, even if we were to consider the merits of defendant's claim, he would not prevail. The amendment added the language "or on his land" to the allegation that defendant possessed a weapon "in his abode." Defendant repeatedly characterizes the effect of the amendment as nullifying his "defense" to the charge. He contends that his trial strategy was to ...


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