Court of Appeals of Illinois, First District, Third Division
from the Circuit Court of Cook County, No. 12 CR 920 (02) The
Honorable Thaddeus L. Wilson Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with
opinion. Presiding Justice Fitzgerald Smith and Justice Mason
concurred in the judgment and opinion.
1 Following a bench trial, defendant Joshua Jackson was
convicted of armed robbery with a firearm and aggravated
battery with a deadly weapon. He was sentenced to 21
years' imprisonment for armed robbery with a firearm,
which included a 15-year enhancement for possessing a firearm
during the offense, and 6 years' imprisonment for
aggravated battery with a deadly weapon, to be served
concurrently. On appeal, defendant asserts that (1) the
evidence was insufficient to show that the object used in the
offense was a firearm; (2) he is entitled to a new sentencing
hearing in light of recent legislation; (3) his sentence was
unconstitutional; and (4) the fines, fees and costs assessed
against him must be reduced. We vacate certain fines, and
order that presentence custody credit be applied against
others, but affirm the judgment in all other respects.
2 I. BACKGROUND
3 On November 22, 2011, two individuals put a gun to Quintin
Kimbrough's back, beat him and absconded with his
backpack. Defendant and codefendant Randy McKnight were
subsequently charged with armed robbery with a firearm (720
ILCS 5/18-2(a)(2) (West 2010)), armed robbery with a
dangerous weapon (720 ILCS 5/18-2(a)(1) (West 2010)),
aggravated battery with a deadly weapon (720 ILCS
5/12-3.05(f)(1) (West 2010)) and aggravated battery on a
public way (720 ILCS 5/12-3.05(c) (West 2010)). Defendant,
who was 17 years old at the time of the offense, was tried as
4 At trial, Kimbrough testified that at about 7:30 p.m. on
the night in question, he was walking north on Pulaski when
three men approached him. Kimbrough did not recognize them at
the time, but later identified defendant from a photo array
and a physical line-up. When they asked if Kimbrough had any
change, he responded that he did not. The three men then
crossed the street, but Kimbrough kept an eye on them as they
continued walking on Pulaski. After one of the men, who was
never identified, turned onto a side street, defendant and
codefendant returned to Kimbrough's side of the street.
5 Pulaski was well-lit from streetlights and automobile
headlights. As Kimbrough approached a somewhat darker section
of Pulaski, he felt "the long piece of a gun" on
his upper back, just above the top of the backpack he was
wearing. Kimbrough acknowledged, however, that he had not
seen a gun at this point. He quickly said, "You
don't have to do anything. I'll give you
[sic] it to you." Defendant and codefendant
told Kimbrough to keep walking and subsequently took his
backpack, which contained clothes, an iPod, credit cards and
a couple of dollars. Defendant and codefendant then pushed
Kimbrough into a dark area and instructed him not to look
back. Despite this instruction, he looked back and was
immediately struck in his right eye with the handle of a
firearm. Furthermore, he recognized the object as a firearm
because he had seen firearms when visiting relatives who
6 When Kimbrough fell to the ground, defendant and
codefendant began kicking and hitting him. After being struck
several times, Kimbrough got up and attempted to escape his
attackers but was hit in his left eye and knocked him to the
ground again. Eventually, Kimbrough made his way into the
middle of the street, where a bus driver assisted him.
Paramedics took Kimbrough to the hospital, where he received
treatment for his badly swollen eyes, bruised arms and
bruised back. He ultimately had surgery on both eyes.
7 Officer Deltoro testified that when he responded to the
scene, Kimbrough was "badly battered" and
"[h]is face, his eye was swollen, his right eye, bloody,
very huge, bad shape." In addition, Kimbrough described
his attackers as "[t]hree male blacks, young, somewhere
between the ages of 17 to 21 *** but average height, maybe
5-foot-10 to 6 feet, thin."
8 Several witnesses testified on defendant's behalf.
Justin Jackson, defendant's brother, testified that
defendant was at school on the day in question. Additionally,
Justin, Tamara Boughton and Danisha Cockrell testified that
they, as well as defendant, attended basketball games in the
gym until 7 or 8 p.m. Afterward, Justin waited with Cockrell
and defendant for a southbound bus, and Boughton crossed the
street to wait for a northbound bus. When the southbound bus
arrived, defendant and Cockrell boarded it. This was the last
time Justin and Boughton saw defendant that night. Justin
testified that at no time did he see defendant with a firearm
or with codefendant. Additionally, Cockrell testified that
she rode the bus with defendant until the Pulaski and Lake
stop, where he exited the bus and walked up the stairs to the
Green Line train platform.
9 Defendant testified on his own behalf that he neither
robbed nor battered Kimbrough, and was never with codefendant
on the day in question. Instead, he spent the day at school
and subsequently attended basketball games with Justin,
Cockrell and Boughton. Afterward, he took the bus home.
Although defendant initially told police that he was at
wrestling practice after school that day, the police reminded
him that practice had been cancelled, leading defendant to
remember that he had been watching basketball instead.
10 Following closing arguments, the trial court found
defendant guilty of all counts and entered a special finding
of great bodily harm. The court ultimately sentenced
defendant to 21 years' imprisonment for armed robbery
with a firearm and 5 years' imprisonment for aggravated
battery, to be served concurrently. Defendant's armed
robbery sentence included a 15-year enhancement for
possession of a firearm.
11 II. ANALYSIS
12 A. ...