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People v. Clark

Court of Appeals of Illinois, Second District

January 19, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
DENNIS CLARK, Defendant-Appellant.

         Appeal 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.

          OPINION

          BIRKETT JUSTICE

         ¶ 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 handgun.

         ¶ 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 ...


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