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In re S.M.

Court of Appeals of Illinois, Third District

February 4, 2015

In re S.M., a Minor
v.
S.M., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,

Page 957

Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois, Circuit No. 14-JD-41. Honorable Albert L. Purham, Jr., Judge, Presiding.

Reversed.

SYLLABUS

The adjudication of respondent as a delinquent was reversed due to the insufficiency of the evidence presented by the State during the adjudicatory hearing based on a charge that he unlawfully possessed a concealable handgun, namely, the failure to present any evidence that respondent was under the age of 18, since once the insufficiency of the evidence is raised in the appellate court and the State is held to have failed to prove beyond a reasonable doubt that respondent was under the age of 18, the constitutional guarantee against double jeopardy precludes remanding the cause to the trial court to allow the prosecution to reopen its proof and have a second chance to present the evidence that was not produced during the first trial.

Michael J. Pelletier and Lucas Walker, both of State Appellate Defender's Office, of Ottawa, for appellant.

Jerry Brady, State's Attorney, of Peoria (Gary F. Gnidovec, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

JUSTICE WRIGHT delivered the judgment of the court, with opinion. Justices Lytton and O'Brien concurred in the judgment and opinion.

OPINION

Page 958

WRIGHT, JUSTICE

[¶1] The State charged respondent S.M., a minor, with unlawful possession of a

Page 959

concealable handgun under section 24-3.1(a)(1) of the Criminal Code of 2012 (720 ILCS 5/24-3.1(a)(1) (West 2012)). This particular provision of the Criminal Code proscribes the possession of a concealable firearm or handgun for persons under 18 years of age. During the adjudicatory hearing, the State did not present any evidence establishing the " age" element of the offense, but during rebuttal closing argument, it asked the trial court to take judicial notice of the court record showing the court's juvenile jurisdiction attached for matters involving minors under 18 years of age. The trial court found respondent delinquent and sentenced him to complete 18 months' probation. Respondent appeals. We reverse.

[¶2] FACTS

[¶3] On February 1, 2014, Peoria police officers Anthony Rummans and Sean Johnston responded to a group of people partying and fighting in the street. The officers observed respondent running from the fight, holding his waistband. When Johnston grabbed respondent, respondent broke free, fled on foot, and discarded an object that the officers believed to be a black handgun. Officer Rummans pursued and apprehended respondent. The officers recovered a .25-caliber handgun from the scene near the area where respondent dropped the black object.

[¶4] The State filed a juvenile petition alleging respondent committed the felony offense of unlawful possession of a concealable handgun. 720 ILCS 5/24-3.1(a)(1) (West 2012). During the arraignment in juvenile court, the court asked respondent his date of birth and age. Respondent replied that he was born May 20, 1997, and was 16 years old.

[¶5] During the adjudicatory hearing, the State presented the testimony of Officers Rummans and Johnston concerning the events of February 1. However, neither officer testified concerning the respondent's age at the time of the occurrence. After the close of the evidence and during closing argument, respondent argued the State's evidence failed to establish respondent was less than 18 years of age at the time of the occurrence, an essential element of the offense for unlawful possession of a handgun as charged under section 24-3.1(a)(1) of the Criminal Code. 720 ILCS 5/24-3.1(a)(1) (West 2012). During rebuttal argument, the State responded by stating, " As far as the minor being under 18, the Court should take judicial notice of the file on that."

[¶6] Addressing the parties' arguments on proof of respondent's age, the court stated:

" The court, this is a juvenile court. Now it's a matter of jurisdiction. He's under 18, otherwise he'd been in adult court. And I don't really think that that's what you want to happen. So, I--I take jurisdiction of these types of cases and I take judicial notice of my court file. So the fact that ...

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