from the Circuit Court of Du Page County. No. 13-CF-1771
Honorable Brian F. Telander, Judge, Presiding.
JUSTICE BIRKETT delivered the judgment of the court, with
opinion. Justices Hutchinson and Schostok concurred in the
judgment and opinion.
1 Defendant, Dennis Clark, appeals from his conviction in the
circuit court of Du Page County of armed robbery with a
firearm (720 ILCS 5/18-2(a)(2) (West 2012)). He contends that
the trial court erred in admitting a prosecution
witness's conviction of armed robbery with a firearm.
Because the court did not abuse its discretion in admitting
the conviction, we affirm.
2 I. BACKGROUND
3 On August 12, 2013, defendant and Christopher Nesbit robbed
a Radio Shack store in Naperville. Because Nesbit used a gun,
defendant was charged, under a theory of accountability, with
armed robbery with a firearm. The sole issue at
defendant's jury trial would be whether the gun that
Nesbit used was a real firearm. Nesbit, who had pled guilty
to the offense, would testify for the State.
4 Before trial, defendant moved to bar the State from using
Nesbit's Cook County conviction of armed robbery with a
firearm. The State responded that, because the Cook County
conviction involved a firearm, it was relevant to show that
Nesbit used a firearm in this case. The trial court noted
that the conviction would not bolster Nesbit's
credibility but ruled that it was admissible, because it was
relevant and more probative than prejudicial. However, the
court prohibited the State from talking about the facts
underlying the conviction.
5 There were two employees present during the robbery in this
case: the store manager, Chirayash Patel, and a sales
associate, Alexis Enter.
6 According to Patel, Nesbit and defendant entered the store.
Shortly thereafter, Nesbit pulled a gun and pointed it at
Patel. Patel described the gun as a handgun that looked real.
He was familiar with BB guns, and it did not look like a BB
gun. Patel was "scared to death." Patel admitted
that he was not familiar with Airsoft-brand BB guns and that
there could be BB guns that looked like real guns.
7 Enter described the gun as real and said that she was
afraid of being shot or killed. Although she did not own a
gun, she knew the difference between a BB gun and a real gun.
She admitted that she did not know what an Airsoft BB gun is
and could not tell the difference between a realistic BB gun
and a real gun.
8 According to Nesbit, on the day of the robbery, he and
defendant picked up a handgun to use in the robbery. Although
someone gave the handgun to defendant, Nesbit carried it into
the store, because he wanted to be in control of the
situation. Nesbit described the handgun as a black .380
semiautomatic. Nesbit, who had handled guns close to 100
times, considered the handgun to be real.
9 While Nesbit and defendant were fleeing the robbery in a
car driven by a third person, Nesbit returned the handgun to
defendant. Defendant, in turn, removed the bullets and pulled
the trigger. Defendant told Nesbit that the trigger did not
work. Nesbit could not remember what defendant did with the
10 During the ensuing police chase, the car crashed. All
three occupants fled on foot, but Nesbit was captured near
the accident scene.
11 Detective Richard Arsenault of the Naperville Police
Department interviewed Nesbit at the accident scene.
According to Detective Arsenault, Nesbit admitted to being
involved in the robbery. Nesbit described the gun as a black
.380 semiautomatic handgun. However, Nesbit added that the
gun was fake. When Detective Arsenault asked if he meant fake
like an Airsoft, Nesbit said ...