The opinion of the court was delivered by: Justice Burke.
JUSTICE BURKE delivered the judgment of the court with opinion.
Justices Freeman, Thomas, Garman, and Karmeier concurred in the judgment and opinion.
Chief Justice Kilbride dissented, with opinion, joined by Justice Theis.
¶ 1 The State appeals to this court raising a single issue--whether the appellate court below erred when it held that the State presented insufficient evidence of a dangerous weapon to prove defendant, James Washington, guilty of armed robbery, aggravated kidnapping and aggravated vehicular hijacking.
¶ 2 Defendant argues that we should affirm the appellate court's judgment. No. 1-06-3159 (unpublished order under Supreme Court Rule 23). In the alternative, he cross-appeals, raising two claims: (1) that his convictions should be reduced to their lesser-included offenses because the allegations in his indictment varied from the State's proof at trial with regard to the type of dangerous weapon used, which misled him in his ability to prepare a defense, and (2) that he is entitled to a new trial because the circuit court of Cook County committed reversible error when it refused to rule, prior to trial, on his motion in limine regarding the admissibility of his previous convictions.
¶ 3 For reasons that follow, we hold that the appellate court erred when it reversed defendant's convictions. We also reject both claims in defendant's cross-appeal. Accordingly, we reverse the judgment of the appellate court.
¶ 5 The record reveals that the State indicted defendant on charges that he committed the offenses of armed robbery, aggravated kidnapping and aggravated vehicular hijacking on April 17, 2004. The State alleged in the indictment that defendant committed each of the offenses "while armed with a dangerous weapon, to wit: a firearm, in violation of Chapter 720, Act 5, Section 18-2(a); 18-4(a); 10-2-A, of the Illinois Compiled Statutes 1992, as amended."
¶ 6 We note that the statutes which defined each of the charged offenses were amended by our legislature effective January 1, 2000, pursuant to Public Act 91-404. Prior to their amendment, the statutes provided that a person committed the offenses of armed robbery, aggravated kidnapping and aggravated vehicular hijacking if, at the time of the offense, he "carried on or about his person or otherwise was armed with a dangerous weapon." The term "dangerous weapon" was not statutorily defined. The amended versions of the statutes altered this scheme by creating substantively distinct offenses based on whether the offenses were committed with a dangerous weapon "other than a firearm" or committed with a "firearm." Public Act 91-404 also provided a definition of the term "firearm" (see 720 ILCS 5/2-7.5 (West 2000) ("Except as otherwise provided in a specific Section, 'firearm' has the meaning ascribed to it in Section 1.1 of the Firearm Owners Identification Card Act." (430 ILCS 65/1.1))) and for those offenses committed with a "firearm," as defined by statute, there were sentencing enhancements, commonly referred to as the 15-20-25-to-life sentencing provisions, which the court was required to impose based on whether a firearm was in the offender's possession, discharged, or used to cause bodily harm. 720 ILCS 5/10-2(a)(5) through (a)(7), 18-2(a)(1) through (a)(4), 18-4(a)(3) through (a)(6) (West 2000).
¶ 7 Although defendant committed the charged offenses in 2004, the State indicted defendant using the "preamended" versions of the statutes. It did so because the sentencing enhancements in the amended versions had been declared unconstitutional by this court in People v. Walden, 199 Ill. 2d 392 (2002), and People v. Moss, 206 Ill. 2d 503 (2003). Based on Walden and Moss, the State believed that the preamended statutes had come back into force. See People v. Gersch, 135 Ill. 2d 384, 390 (1990) (the effect of enacting an unconstitutional amendment to a statute is to leave the law in force as it was before the adoption of the amendment). Defendant made no objection to the indictment.*fn1
¶ 8 Defendant's trial took place in 2006. By that time this court had filed its decision in People v. Sharpe, 216 Ill. 2d 481 (2005), wherein the decisions in Walden and Moss were overturned. With our decision in Sharpe, the enhanced sentencing provisions that were originally in the amended versions of the statutes came back into effect. Nevertheless, defendant's prosecution proceeded in accord with the indictment and defendant raised no objection to the State proceeding in this manner. This is understandable because the defendant would not have wanted to open the door to the possibility of being subject to the mandatory sentencing enhancements which must be imposed when a firearm is used in the commission of offenses.*fn2
¶ 9 Having charged defendant under the predecessor statute, the prosecution attempted to prove that defendant committed the offenses of armed robbery, aggravated vehicular hijacking and aggravated kidnapping "while armed with a dangerous weapon." To meet its burden, the prosecution presented the testimony of the victim, Abdallah Farraj.
¶ 10 Farraj testified, through an interpreter, that at about 10 a.m. on April 17, 2004, he and his cousin, Ayman, made a delivery of candy, cigarettes and tobacco products to Martino's grocery store at 3240 East 91st Street in Chicago. After making the delivery, Farraj sat in the delivery truck while he waited for Ayman, who was inside the store completing paperwork concerning the delivery. Farraj testified that, while sitting in the truck, he noticed defendant coming toward him along the side of the truck. Farraj said he started to get out, but defendant pointed a gun to his head and forced him back into the truck. With defendant still holding a gun to his head, Farraj was forced to sit on a safe that was located between the front driver and passenger seats of the truck. Another man (defendant's accomplice) then entered the driver's side of the truck and drove away. As the truck was pulling away from the store, defendant told Farraj, "Don't move," and kept the gun pointed at Farraj's head.
¶ 11 A few blocks from the market, the driver stopped the truck and defendant forced Farraj out of the truck at gunpoint. Farraj testified that defendant, while still pointing the gun at him, forced him into the back cargo area of the truck and then closed and locked the sliding cargo bay door. Farraj testified that while he was in the cargo area, the truck began moving and then stopped for a brief time. While the truck was stopped, Farraj heard noises coming from the front of the truck. Soon the truck began moving again and within a short time Farraj heard police sirens. Shortly thereafter the truck came to a sudden halt.
¶ 12 The State presented other witnesses whose testimony established that a police broadcast was issued with a description of the truck that was taken. Sergeant Timothy Koren of the Chicago police department was working beat duty in the area. He noticed a truck fitting the description and began following it. When Sergeant Koren activated his lights and siren, the truck pulled into a parking lot. Sergeant Koren saw two men jump from the front of the truck while the truck was still moving. The truck eventually came to a stop when it hit a parked car. Sergeant Koren broadcast a description of the fleeing men over the police radio and within minutes defendant was captured, although his accomplice was never apprehended and no gun was recovered. Farraj was released from the back of the truck and it was then discovered that the safe that had been in the front of the truck was missing.
¶ 13 Detective Lorenzo Sandoval of the Chicago police department testified for the State that he spoke to defendant at Area Two division headquarters after defendant's arrest on April 17, 2004. Detective Sandoval testified that, after defendant was advised of his rights, defendant told him that a few days earlier he had been approached by a person named "Johnny," who had asked him if he would like to make some money. Thereafter, on April 17, 2004, defendant drove his car to the area near Martino's grocery store and met up with Johnny. Defendant said that, at Johnny's direction, he drove a truck from the area. At some point they stopped and removed a safe, placing it somewhere on Anthony Street. After dropping off the safe, they continued on in the truck until they heard police sirens. Defendant said he jumped from the truck when he saw Johnny jump out.
¶ 14 Detective Sandoval also testified that, on the following day, April 18, 2004, he was present when defendant spoke to Assistant State's Attorney Hung. The detective testified that defendant told Assistant State's Attorney Hung he was "accountable for the robbery and kidnapping of [sic] that occurred on the 17th of April at 3240 East 91st Street."
¶ 15 After the State presented its evidence, defense counsel, outside the presence of the jury, moved for a directed finding on all counts, stating, "State has not proven that a firearm was in fact used. They charged a firearm, they have not proven a firearm was used." The State replied, "I believe we have met our burden in this matter. Through the testimony of Abdallah Farraj *** when you have the witness testify the defendant pointed the gun at the victim ***."
¶ 16 The trial court denied the motion and then held a jury instruction conference. During the instruction conference, the following colloquy took place:
"Ms. Sims [defense counsel]: Judge, we earlier requested a jury instruction IPI 18.07, definition of firearm. Also, shown [sic] you the Public Safety Act which gives ...