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03/15/96 PEOPLE STATE ILLINOIS v. GARY D.

March 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GARY D. CHARLESTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94-CF-146. Honorable Raymond J. McKoski, Judge, Presiding.

Released for Publication April 15, 1996.

The Honorable Justice Inglis delivered the opinion of the court: McLAREN, P.j., and Doyle, J., concur.

The opinion of the court was delivered by: Inglis

JUSTICE INGLIS delivered the opinion of the court:

Defendant, Gary D. Charleston, appeals from the judgment entered on his conviction of aggravated discharge of a firearm in the direction of another person. We reverse.

Defendant was indicted on two counts of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(1), (2) (West 1994)). Count I alleged that, on January 23, 1994, defendant knowingly discharged a firearm "into a building" which he knew to be occupied. Count II alleged that defendant knowingly discharged a firearm "in the direction of another person." The case was tried before a jury in April 1994. At the close of the State's evidence, the court granted defendant's motion for a directed verdict as to count I, finding that the State had produced insufficient evidence that defendant discharged a firearm "into a building." The court denied defendant's motion for a directed verdict as to count II, finding there was sufficient circumstantial evidence concerning that charge for the jury to consider.

The following morning, the court reconsidered its ruling on defendant's directed verdict motion. The court vacated its order granting a directed verdict as to count I, and reinstated that charge. The jury ultimately found defendant guilty of both offenses, but the trial court entered a judgment of conviction only as to count II, finding that the two offenses were carved from one act.

Defendant appeals from the judgment of conviction on count II, arguing that his conviction must be reversed because the evidence concerning the direction in which he was alleged to have discharged the firearm was insufficient to establish his guilt beyond a reasonable doubt. Defendant also argues that he was denied a fair trial where, he asserts, the trial court erroneously vacated its order directing a verdict as to count I. Defendant contends that the trial court's error prejudiced the jury in rendering its verdict as to count II.

We summarize only those facts essential to an understanding of our disposition of the appeal. At trial, 19-year-old Teena Callahan, who lived in Zion, testified that she knew Larry Greenwood and that she had known Zipporah Hamlet since junior high school. Hamlet had introduced her to "G.C." (defendant) the day before they went for a ride in Greenwood's yellow Geo Tracker on the evening of January 23, 1994. "Bone" (viz., Charles Galmore), who had also just been introduced to Callahan, was with defendant and Greenwood when they came to pick up Callahan at her apartment. Defendant was wearing yellow pants.

When they left for a ride to North Chicago, Greenwood was sitting in the driver's seat, defendant sat in the front passenger seat, and Galmore climbed into the rear seat behind Greenwood. Callahan sat in the rear center, and Hamlet sat in the right rear passenger seat behind defendant.

Defendant said something about a lady owing him some money, and defendant asked Greenwood to drive to Park Avenue. A few minutes later, Greenwood stopped the Tracker on Park Avenue, and defendant exited the passenger door side.

Callahan did not see where defendant went after he exited the car, but Callahan then heard two gunshots in succession. After she heard the shots, defendant got back into the right front passenger seat and told Greenwood to go. Greenwood drove off, and, about a minute later, police sirens were heard. A police car came up behind them, and Greenwood pulled the Tracker over briefly, but then Greenwood pulled away and the police began chasing them. Callahan was telling them to stop; she wanted to get out. A gun was thrown to the backseat from the front seat, but Callahan did not know who threw it. Someone asked her to grab the gun and throw it out. It was a small gun that could fit in the palm of a hand. A few blocks later, Greenwood pulled the vehicle over, and the police searched the vehicle and found the gun. Defendant was then arrested.

The following night, at about 2 a.m., Callahan was visited by Hamlet, Greenwood, and Hamlet's little brother. Hamlet said defendant's family was very upset when they heard that Callahan had made a statement that defendant had fired the gun. Callahan took the visit as a threat. Hamlet tried to persuade Callahan that she needed to say that Galmore had fired the gun. Callahan testified, however, that Galmore never got out of the car after defendant told Greenwood to stop on Park Avenue. She never saw Galmore in possession of a gun, nor did she see him use the car phone.

Galmore, who was 22 years old, testified that he lived in Waukegan, and had known defendant for six years. Defendant's nickname was "G.C." Galmore knew Greenwood from high school. After picking up the women and Callahan's son, they got into the Tracker in the same positions described by Callahan. Galmore sat behind Greenwood, the driver. They drove to Waukegan and dropped off Callahan's son, and headed toward North Chicago. Defendant used the car phone, but Galmore could not hear what he was saying because the music was playing. After hanging up the phone, defendant told Greenwood to take him to a street in North Chicago. Defendant told Greenwood where to stop the vehicle, pointing to a big white house. Defendant got out from the ...


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