Justice Burke concurred in the judgment and opinion.
1 Following a jury trial, defendant Deontae X. Murray was
convicted of first degree murder (720 ILCS 5/9-1(a)(2) (West
2012)) and unlawful possession of a firearm by a street gang
member (id. § 24-1.8(a)(1)). The circuit court
of Boone County sentenced defendant to consecutive terms of
50 years and 10 years respectively. On appeal, defendant
argued that the evidence was insufficient to establish that
he committed the firearm offense. The appellate court
affirmed defendant's conviction. 2017 IL App (2d) 150599.
We allowed defendant's petition for leave to appeal. Ill.
S.Ct. R. 315 (eff Nov. 1, 2017). For the reasons that follow,
we reverse the judgment of the appellate court.
2 I. BACKGROUND
3 The evidence presented at trial established the following
relevant facts. On April 21, 2013, defendant went to a gas
station in Belvidere, Illinois, to purchase beer. Defendant
was accompanied by Marco Hernandez. As defendant and
Hernandez were exiting the gas station store, Max Cox and
Richard Herman were entering. Cox had admitted belonging to
the Sureño 13 street gang.
4 Defendant and Hernandez waited outside until Cox and Herman
eventually exited the gas station store and walked back to
their car, which was parked by a gas pump. Defendant and
Hernandez approached Cox and Herman. Defendant asked Cox
"what's up" and whether he was "gang
banging." Cox replied "no," and defendant
lifted up his shirt to reveal a handgun and accused Cox of
lying. According to Cox, Hernandez, who had been standing in
front of defendant, removed the handgun from defendant's
waist band, stepped away, and then held it behind his own
back. Hernandez and Herman began to argue, and Cox told
Herman to "[s]hut the f*** up, he has a gun."
Hernandez pulled out the gun, ran up to Herman, and shot him
in the chest. Herman was taken to a nearby hospital, where he
was pronounced dead.
5 A grand jury indicted defendant and Hernandez in connection
with Herman's murder. Defendant was charged with first
degree murder (720 ILCS 5/9-1(a)(2) (West 2012)), aggravated
unlawful use of a weapon (id. § 24-1.6(a)(1),
(a)(3)(A), (d)), and unlawful possession of a firearm by a
street gang member (id. § 24-1.8(a)(1)).
6 At defendant's trial, the State called police detective
David Dammon as a witness. Dammon testified about his
experience with the Belvidere Police Department beginning in
1996, his position in the street gang unit, and his
specialized training and courses taken in street gangs and
gang activity, which included training dealing with active
gangs in Chicago, the Chicago suburbs, and areas close to
Belvidere and Rockford. Dammon also testified that he had
been personally involved in over 400 gang crime
investigations and that, while acting as a gang officer and
detective, he had contact with gang members in Belvidere well
over a thousand times and personally interviewed people taken
into custody for various gang offenses well over a thousand
7 In addition, Dammon generally described how street gangs
operate, their hierarchy, and their use of guns for the
protection of drugs, cash, and themselves from rival gangs.
He testified that the Latin Kings and the Sureño 13s
are the major groups of gangs in the Belvidere area and that
there is a rivalry between them. He also testified that the
phrase "gang banging" indicates when gang
members are doing gang work, are intimidating people, and are
committing crimes for the benefit of a street gang. He
further testified that he had contact with defendant in the
context of prior gang investigations.
8 Over an objection made by defendant, Dammon was permitted
to testify as an expert on gang activity. The following
testimony was elicited on the State's direct examination
"Q. What is a street gang?
A. A street gang is defined by Illinois statute actually. It
has to have one of three things. It's two or more people
with a recognized hierarchy and leader and their activities
are criminal or at least a threat to society.
Q. Is the Latin Kings [a] street gang, is that an organized
street gang as defined by our state Street Gang Omnibus Act?
A. It is."
9 Dammon stated that, as a member of the street gang unit, he
gathers intelligence information from and for street gang
databases. He also testified to specific types of sources
that he and other experts in their field rely upon in
identifying someone as a gang member, including law
10 During Dammon's testimony, the State played for the
jury two videos recovered from defendant's cell phone
recorded two hours prior to the shooting. The videos show
defendant and Anthony Perez outside an apartment complex in
Belvidere, standing in front of graffiti, making hand
signals. In one video, Perez is seen urinating on the side of
the building, walking over to the graffiti, and saying aloud
"thirteen K." Dammon explained that the
"13" stands for the Sureño 13 gang and the K
was added to signify a Sureño 13 killer. Dammon
testified that the graffiti is "something that somebody
that didn't get along with the 13's would put
11 Defendant also testified. He stated that he had been a
member of the Latin Kings from the age of 13 to 21 but, at
the time of trial, he was no longer a member.
12 The jury convicted defendant of all three offenses, and
the circuit court merged the aggravated unlawful use of a
weapon conviction (id. § 24-1.6(a)(1),
(a)(3)(A), (d)) into the unlawful possession of a firearm by
a street gang member conviction (id. §
24-1.8(a)(1)) and imposed a sentence on that offense.
13 On appeal, defendant raised several issues. Relevant here,
defendant asserted that the State failed to prove that the
Latin Kings are a "streetgang" as defined by the
Illinois Streetgang Terrorism Omnibus Prevention Act (Act).
740 ILCS 147/10 (West 2012); see 720 ILCS 5/24-1.8(a)(1)
(West 2012) (unlawful possession of a firearm by a street
gang member statute providing that the term "street
gang" has the meaning ascribed to it by the Act); 740
ILCS 147/10 (West 2012) (defining "streetgang,"
including the term "course or pattern of criminal
activity," which is itself separately defined).
14 Defendant contended that, as in People v. Lozano,
2017 IL App (1st) 142723, he could not be guilty of unlawful
possession of a firearm by a street gang member because the
State did not establish, by way of Dammon's testimony,
that the Latin Kings committed certain crimes within the
relevant time period. Thus, because the State did not show
that the Latin Kings had engaged in a "course or pattern
of criminal activity," during the requisite time period,
the State failed to prove that the Latin Kings are a
15 The appellate court rejected defendant's argument,
concluding: "[I]n People v. Jamesson, 329
Ill.App.3d 446, 460 (2002), this court held that an expert on
gangs may opine on the ultimate issue of whether an
organization is a street gang engaged in a course or pattern
of criminal activity without testifying to specific dates or
incidents. Here, Dammon testified to the organizational
structure of street gangs in general, and the Latin Kings in
particular, and he opined that the Latin Kings are a street
gang within the meaning of Illinois law. That opinion alone
was sufficient to establish the element that the Latin Kings
are a street gang. Further, Dammon testified in the present
tense that gangs use guns to protect their drugs, cash, and
members from rival gangs and that members do whatever is
needed to benefit the gang, including intimidation of people.
We believe that the jury could have reasonably inferred from
Dammon's testimony that the Latin Kings historically and
currently commit felonies." 2017 IL App (2d) 150599,
16 II. ANALYSIS
17 Before this court, defendant argues that the State failed
to prove that the Latin Kings are a "street gang"
as defined by the Act. See 740 ILCS 147/10 (West 2012).
Specifically, defendant contends that the State's proof
was insufficient because its gang expert did not testify to a
relevant time period or, indeed, to any specific historical
crimes committed by the Latin Kings, as required by the Act.
18 The State maintains it is not required to present evidence
of specific crimes committed by the Latin Kings. The State
asserts that, because an expert may provide an opinion on the
ultimate issue in a case, Dammon's testimony was
sufficient to establish that the Latin Kings are a
"street gang," as defined by the Act. The State
alternatively contends that, if proof of specific crimes were
required, it presented evidence of a "course or pattern
of criminal activity" through defendant's own
19 Where a criminal conviction is challenged based on
insufficient evidence, a reviewing court, considering all of
the evidence in the light most favorable to the prosecution,
must determine whether any rational trier of fact could have
found beyond a reasonable doubt the essential elements of the
crime. Jackson v. Virginia, 443 U.S. 307, 318-19
(1979); People v. Brown, 2013 IL 114196, ¶ 48;
People v. Cooper, 194 Ill.2d 419, 430-31 (2000).
This standard of review "gives full play to the
responsibility of the trier of fact fairly to resolve
conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate
facts." Jackson, 443 U.S. at 319; accord
People v. Howery, 178 Ill.2d 1, 38 (1997).
Therefore, a reviewing court will not substitute its judgment
for that of the trier of fact on issues involving the weight
of the evidence or the credibility of the witnesses.
Brown, 2013 IL 114196, ¶ 48; Cooper,
194 Ill.2d at 431. Although these determinations by the trier
of fact are entitled to deference, they are not conclusive.
Rather, a criminal conviction will be reversed where the
evidence is so unreasonable, improbable, or unsatisfactory as
to justify a reasonable doubt of the defendant's guilt.
Brown, 2013 IL 114196, ¶ 48; People v.
Wheeler, 226 Ill.2d 92, 115 (2007); People v.
Ortiz, 196 Ill.2d 236, 259 (2001).
20 A. Expert Opinion
21 We begin by considering defendant's assertion that
Dammon's testimony was insufficient to establish that the
Latin Kings are a street gang as defined by the Act. The
State counters that it is not required to present evidence of
specific crimes committed by the Latin Kings. We agree with
22 In the case at bar, the offense of unlawful possession of
a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1)
(West 2012)) requires proof that the Latin Kings are a
"streetgang" as defined in section 10 of the Act.
The Act defines "streetgang" as "any
combination *** of 3 or more persons with an established
hierarchy that, through its membership or through the agency
of any member engages in a course or pattern of criminal
activity." 740 ILCS 147/10 (West 2012).
23 "Course or pattern of criminal activity" is
defined, in part, as (1) two or more gang-related criminal
offenses committed in whole or in part within this State; (2)
that at least one such offense was committed after January 1,
1993, the effective date of the Act; (3) that both offenses
were committed within five years of each other; and (4) that
at least one offense involved the solicitation to commit,
conspiracy to commit, attempt to commit, or commission of any
offense defined as a felony or forcible felony under the
Criminal Code of 2012. Id.
24 The offense of unlawful possession of a firearm by a
street gang member incorporates by reference the definition
of a "streetgang" as set forth in the Act. The
effect of this reference is the same as though these
provisions had been incorporated into the adopting statute.
See People v. Lewis, 5 Ill.2d 117, 122 (1955)
(finding it is a familiar legislative process to incorporate
one statute into another by reference); In re Jarquan
B., 2017 IL 121483, ¶ 61 (Burke, J., specially
concurring, joined by Kilbride, J.). The incorporation of the
definition of a "streetgang" into the terms of the
offense signifies that the requirements in the Act are
elements of the offense. Lewis, 5 Ill.2d at
122. Thus, in addition to possessing a gun and being
a member of a gang, proof of defendant's guilt of the
offense mandates that the State present evidence that
establishes a "course or pattern of criminal
activity" (1) that the Latin Kings were involved in two
or more gang-related criminal offenses; (2) that at least one
such offense was committed after January 1, 1993; (3) that
both offenses were committed within five years of each other;
and (4) that at least one offense involved the solicitation
to commit, conspiracy to commit, attempt to commit, or
commission of any offense defined as a felony or forcible
felony. 740 ILCS 147/10 (West 2012).
25 Briefly summarized, Dammon's relevant testimony
established that, since 1996, he had been a member of the
Belvidere Police Department's street gang unit with
specialized training. As a member of that unit, his
responsibilities included investigations and interviews with
gang members and enforcing laws for crimes that are being
committed by gang members. He also testified to his expertise
with gangs in general and familiarity not only with the local
Latin Kings but with defendant himself.
26 Furthermore, Dammon was shown data sheets from the
Belvidere Police Department's gang database and explained
that such documents are one type of evidence upon which gang
experts rely to identify someone as a gang member. When asked
about other evidence experts in his field rely upon, Dammon
identified the Law Enforcement Automated Data System (LEADS),
the Illinois Department of Corrections Information System,
previous narcotics cases, notes from such cases, and notes
from interviewing other gang members or persons who are
affiliated with gangs that have previously given reliable and
reputable information. Finally, Dammon stated that the Latin
Kings are a street gang as defined by the Act.
27 The State maintains that Dammon's opinion that the
Latin Kings are a "street gang" was sufficient,
even though his direct testimony did not disclose any
specific crime evidence. The State asserts that, once Dammon
provided his expert opinion on the street gang element, the
burden shifted to defendant to cross-examine Dammon on the
facts underlying that opinion. That approach, however,
erroneously shifts the burden of proof and requires defendant
to disprove the State's case before it has established
the elements of the offense of unlawful possession of a
firearm by a street gang member.
28 The right to due process, as guaranteed by the United
States and Illinois Constitutions (U.S. Const., amend. XIV;
Ill. Const. 1970, art. I, § 2), safeguards an accused
from conviction except upon proof beyond a reasonable doubt
of every fact necessary to prove each element that
constitutes the crime charged. See Jackson, 443 U.S.
at 315-16; Brown, 2013 IL 114196, ¶ 48;
People v. Cunningham, 212 Ill.2d 274, 278 (2004). An
essential element of proof to sustain a conviction cannot be
inferred but must be established. People v. Mosby,
25 Ill.2d 400, 403 (1962). It is axiomatic that the State
carries the burden of proving each element of a charged
offense beyond a reasonable doubt. Brown, 2013 IL
114196, ¶ 52. Such burden rests on the State throughout
the entire trial and never shifts to the defendant.
Howery, 178 Ill.2d at 32. Therefore, the defendant
is under no obligation to produce any evidence, and the
burden of proof never shifts to the defendant but remains the
responsibility of the State throughout the trial. People
v. Weinstein, 35 Ill.2d 467, 470 (1966); People v.
Kelley, 2015 IL App (1st) 132782, ¶ 62.
29 The State concedes, as it must, that Dammon's direct
testimony did not disclose the specific crime evidence
required by the Act. Further, the State finds it significant
that defendant did not cross-examine Dammon regarding his
30 The State's attempt to shift the burden of proof to
defendant, excusing it from being required to prove the
elements of the charged offense, violates defendant's
right to due process. See Jackson, 443 U.S. at
315-16. In general, the purpose of cross-examination is to
highlight the flaws and omissions in the evidence presented
during direct examination. Leonardi v. Loyola University
of Chicago, 168 Ill.2d 83, 105 (1995). As a practical
matter, cross-examination is necessary only where the flaws
and omissions are not readily apparent from the previous
testimony on direct examination. In a criminal case,
cross-examination of the State's witnesses is not
intended to serve as an alternative means of establishing the
elements of the offense beyond a reasonable doubt.
Mosby, 25 Ill.2d at 403. If the State fails to
present evidence that establishes the elements of the charged
offense, cross-examination by the defendant is not required.
Howery, 178 Ill.2d at 32. Because the State bears
the burden of proof, it similarly bears the consequences of
any omission of proof.
31 In addition, we observe that Illinois Rule of Evidence 705
(eff. Jan. 1, 2011) unambiguously requires that Dammon
articulate the reasons for his opinion. Rule 705 provides
that "[t]he expert may testify in terms of opinion or
inference and give reasons therefore without first testifying
to the underlying facts or data." Id. Here,
Dammon generally described in broad terms the types of
information and facts on which his opinion was based, but he
never explained his reasons as to why that information
supported his opinion. Admittedly, Dammon was not obligated
to bring forth the underlying facts and data upon which his
opinion was premised, but merely identifying the source of
those facts and data, without explaining the reasons for his
opinion, fails to prove the elements of the offense of
unlawful possession of a firearm by a street gang member.
32 In contrast to the State's approach in this case, the
correct application of Rule 705 is illustrated by People
v. Fountain, 2016 IL App (1st) 131474, People v.
Simpson, 2015 IL App (1st) 130303, and People v.
Negron, 2012 IL App (1st) 101194. In each of these
cases, all of the requirements of Rule 705 have been
satisfied. Although these cases are based on the
admissibility of the evidence, rather than the sufficiency of
the evidence, we find the reasoning instructive regarding the
interplay of Rule 705 and presentation of expert testimony in
a criminal case.
33 In the aforementioned cases, the appellate court noted
that the experts testified on an ultimate issue or
conclusion, detailed their analytic process and methodology,
and also thoroughly explained the reasons for their opinions.
Fountain, 2016 IL App (1st) 131474, ¶¶
65-67; Simpson, 2015 IL App (1st) 130303,
¶¶ 14, 38; Negron, 2012 IL App (1st)
101194, ¶¶ 38, 40. In each case, the appellate
court acknowledged that Rule 705 permits an expert to testify
in terms of opinion or inference and to give reasons therefor
without divulging the underlying facts and data for it, which
then shifts the burden to the opposing party to explore the
same on cross-examination. Fountain, 2016 IL App
(1st) 131474, ¶ 64 (applying Illinois Rule of Evidence
705 (eff. Jan. 1, 2011)); Simpson, 2015 IL App (1st)
130303, ¶ 37 (same); Negron, 2012 IL App (1st)
101194, ¶ 42 (same). However, in all of these cases, the
defense engaged in rigorous cross-examination eliciting the
flaws and omissions in the experts' reasons only
after the experts' direct testimony fully explained
the reasons and basis for their opinions. Fountain,
2016 IL App (1st) 131474, ¶ 68; Simpson, 2015
IL App (1st) 130303, ¶ 38; Negron, 2012 IL App
(1st) 101194, ¶ 42.
34 This case presents a distinctly different circumstance.
Here, the State never satisfied the first condition of Rule
705, which requires testimony explaining the reasons for the
expert's opinion. Ill. R. Evid. 705 (eff. Jan. 1, 2011);
see People v. Mpulamasaka, 2016 IL App (2d) 130703,
¶ 89 (an expert's opinion is only as valid as the
reasons for the opinion). This condition must be fulfilled
prior to shifting the burden to defendant to explore the
underlying facts or data on cross-examination. Dammon only
provided a general reference to the sources of the underlying
facts and data. He never explained the nexus between (1)
LEADS, the Illinois Department of Corrections Information
System, gang databases, or notes from other cases and (2) how
this information established that the Latin Kings were a
street gang engaged in a "course or pattern of criminal
activity." He described the nature of his experience and
familiarity with the databases, but he never explained the
reasons or information and facts that supported his opinion,
and he never connected his reasons or the information and
facts to defendant to satisfy the statutory
definition of "street gang." The State also failed
to meet its burden because it failed to present evidence that
established two specific crimes, one of which must involve
the solicitation to commit, conspiracy to commit, attempt to
commit, or commission of any offense defined as a felony or
forcible felony under the Criminal Code of 2012, within the
relevant time period. 740 ILCS 147/10 (West 2012). Therefore,
because Dammon's direct testimony was devoid of any
"course or pattern of criminal activity" evidence,
the offense of unlawful possession of a firearm by a street
gang member had not been established, and cross-examination
by defendant was not required.
35 Further, we note that, with regard to Dammon's
reliance on gang databases for his opinion, Illinois Rule of
Evidence 803(8) (eff. Apr. 26, 2012) provides, in relevant
"The following are not excluded by the hearsay rule ***:
*** Records, reports, statements, or data compilations, in
any form, of public offices or agencies, setting forth (A)
the activities of the office or agency, or (B) matters
observed pursuant to duty imposed by law as to which matters
there was a duty to report *** unless the sources of
information or other circumstances indicate lack of
Pursuant to Illinois Rule of Evidence 201, we take judicial
notice of the fact that the City of Chicago inspector
general's April 2019 review of the Chicago Police
Department's "Gang Database" found that the
Chicago Police Department (CPD) lacks sufficient controls for
generating, maintaining, and sharing gang-related data;
CPD's gang information practices lack procedural fairness
protections; CPD's gang designations raise significant
quality concerns; and CPD's practices and lack of
transparency regarding its gang designations strain
police-community relations, indicating that the gang database
lacks trustworthiness. See Ill. R. Evid. 201(b) (eff. Jan. 1,
2011) ("A judicially noticed fact must be one not
subject to reasonable dispute in that it is *** capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned."); Ill. R.
Evid. 201(c) (eff. Jan. 1, 2011) ("A court may take
judicial notice, whether requested or not."); see also
Office of Inspector General, City of Chicago, Review of
the Chicago Police Department's "Gang
Database" (Apr. 11, 2019),
36 Here, we find that the State presented no evidence of the
Latin Kings' involvement in specific crimes as required
by the Act. See 740 ILCS 147/10 (West 2012). Dammon did not
identify the Latin Kings' commission of particular
offenses on certain dates. Furthermore, the State provided no
other witnesses who testified to specific offenses committed
by the Latin Kings during the relevant time period that would
satisfy the statutory definition of a "streetgang."
Expert opinions and inferences testified to under Rule 705,
without testimony regarding specific crimes committed by the
Latin Kings, do not establish a violation of the Act. As
stated earlier, an essential element of proof to sustain a
conviction cannot be inferred but must be established.
Mosby, 25 Ill.2d at 403.
37 The State's approach in this case violated the
constitution because it shifted the burden to defendant to
disprove an element of the offense. See Brown, 2013
IL 114196, ¶ 52 (holding the State always has the burden
of proving all of the elements of the offense);
Howery, 178 Ill.2d at 32 (burden rests on the State
throughout the entire trial and never shifts to the
defendant). Thus, under the circumstances here, we find that
the State failed to meet its burden of presenting evidence
that established that the Latin Kings meet the statutory
definition of a "streetgang." See Patterson v.
New York, 432 U.S. 197, 210 (1977) (holding that
"the Due Process Clause requires the prosecution to
prove beyond a reasonable doubt all of the elements included
in the definition of the offense of which the defendant is
38 Finally, having examined the appellate court opinions that
excused the State from proving all the elements of the
offense of unlawful possession of a firearm by a street gang
member, we observe that these decisions are in direct
contravention of the express language in the Act. The Act
requires that at least one of the two required offenses be
committed after January 1, 1993, and that the offenses had
been committed within five years of each other. 740 ILCS
147/10 (West 2012). The primary objective in construing a
statute is to ascertain and give effect to the intent of the
legislature. People v. Casas, 2017 IL 120797, ¶
18. The most reliable indicator of legislative intent is the
language of the statute, given its plain and ordinary
meaning. People v. Reese, 2017 IL 120011, ¶ 30.
39 The language of the Act definitively implements the
legislative intent. During Senate debate on creating the
offense at issue here, lawmakers expressed concern about the
possibility of unfairly punishing individuals based on prior
or tenuous gang affiliation. 96th Ill. Gen. Assem., Senate
Proceedings, Oct. 29, 2009, at 154-55 (statements of Senator
Raoul). Further, there was an inquiry as to whether the
statute contained a "very clear definition of what a
gang member is." Id. at 157 (statements of
Senator Rutherford). In response, Senator Millner stated that
the defendant must be "actively engaged in the criminal
enterprise" and "the burden of proof from the
State's attorney's office *** has to be very, very
high. They have to prove it up. And *** it has to be part of
the Illinois Streetgang Terroris[m] Omnibus [Prevention]
Act." Id. at 158 (statements of Senator
Millner). He stated that the definition is "probably two
hundred plus words defining what a street gang member is and
what it takes to be actively engaged in a criminal
enterprise," again reiterating that "the burden of
proof is very high." Id. at 158-59 (statements
of Senator Millner).
40 Turning to the appellate decisions, in People v.
Jamesson, the court noted that the detective's
testimony specified that he began having contact with the
street gang" 'a couple of years ago'" and
the street gang was involved with aggravated batteries. 329
Ill.App.3d 446, 460-61 (2002). The court concluded that the
reference to "a couple of years ago" was adequate
to establish that the offenses occurred within five years of
each other and took place after the effective date of the
Act, thus satisfying the elements of being a "street
gang." Id. at 461.
41 In a more recent appellate opinion, People v.
Berrios, 2018 IL App (2d) 150824, the court, relying on
Jamesson and the appellate court's decision in
this case, reasoned that it had" 'previously held
that an expert on gangs may opine on the ultimate issue of
whether an organization is a street gang engaged in a course
or pattern of criminal activity without testifying to
specific dates or incidents.'" Id. ¶
22 (quoting People v. Murray, 2017 IL App (2d)
150599, ¶ 83). The Berrios court observed that
the expert testified that he had been with the gang unit for
three years and that the gang unit"
'track[s]'" the Latin Kings and other street
gangs. Id. In so stating, the court determined that
the expert had expressed his opinion that the Latin Kings
are, in fact, a street gang. Id. The court stated
that under our precedents nothing more was required.
Id. The Berrios court acknowledged that the
expert's testimony concerning the Latin Kings could have
been more comprehensive. Id. However, the court
found that the evidence was sufficient to support a
reasonable determination that the Latin Kings are a street
gang having engaged in a course or pattern of criminal
activity within the meaning of section 10 of the Act.
42 It is apparent that some appellate court decisions,
relying on the appellate court's decision in this case
and Jamesson, now require no testimony on
"course or pattern of criminal activity"
establishing (1) that a street gang was involved in two or
more gang-related criminal offenses; (2) that at least one
such offense was committed after January 1, 1993; (3) that
both offenses were committed within five years of each other;
and (4) that at least one offense involved the solicitation
to commit, conspiracy to commit, attempt to commit, or
commission of any offense defined as a felony or forcible
felony. 740 ILCS 147/10 (West 2012). It is also clear from
the legislative history that the legislature intended to hold
the State to a "very, very high" burden when
establishing each and every element of the offense, including
the definition of "streetgang," which requires
proof of "a course or pattern of criminal
activity." See 96th Ill. Gen. Assem., Oct. 29, 2009, at
158 (statements of Senator Millner); 740 ILCS 147/10 (West
2012). The current trend in the appellate court of excusing
proof of each element of the offense is in direct conflict
with our precedents and the language of the Act.
Brown, 2013 IL 114196, ¶ 52; Howery,
178 Ill.2d at 32; Mosby, 25 Ill.2d at 403; 740 ILCS
147/10 (West 2012). Therefore, it cannot be said that proof
of specific crimes is not required. Accordingly, to the
extent that Jamesson and Berrios stated
otherwise, they are overruled.
43 In support of its assertion that evidence of specific
crimes committed by the Latin Kings is not required, the
State relies on People v. Wright, 2017 IL 119561.
The State maintains that, as in Wright, it is not
constrained by the statutory requirements regarding the proof
necessary to establish an element of defendant's offense.
We find, however, that this case does not establish an
exemption from proving statutory requirements.
44 In Wright, the State had to prove that the
defendant or someone he was accountable for was armed with a
firearm as defined by statute, which defined a firearm, in
pertinent part, as" 'any device, by whatever name
known, which is designed to expel a projectile or projectiles
by the action of an explosion, expansion of gas or escape of
gas' but specifically excluding, among other items, any
pneumatic gun, spring gun, paint ball gun, or BB gun."
Id. ¶ 71 (quoting 430 ILCS 65/1.1 (West 2012)).
The court held that the jury was entitled to believe the
testimony of three lay witnesses who observed "a
semiautomatic," "an 'actual firearm,
'" "the handle of a gun in the waistband of his
pants," and "a 9 millimeter pistol."
Id. ¶ 76. The testimony was sufficient to find
the codefendant was armed with a firearm during the
commission of the robbery, and thus, defendant was guilty
beyond a reasonable doubt. Id. ¶ 77. The State
observes that, in Wright, it was not required to
present evidence that the firearm used in the crime met the
technical statutory definition of a firearm in all respects.
The State contends that, as in Wright, it should not
be required to prove its case with a particular type of
45 We find this argument unavailing, as Wright is
clearly distinguishable. In Wright, there were three
eyewitnesses testifying to characteristics of a physical
object. Id. ¶ 76. By contrast, in the case at
bar, a street gang as defined by the Act requires proof of
each element codified in the statute, but there was no
witness testimony providing evidence to prove the Latin Kings
meet the statutory definition of a street gang. Accordingly,
we reject the State's assertion that Wright
supports the argument that it is not required to present
evidence of specific crimes committed by the Latin Kings in
the relevant time period.
46 B. Defendant's Own Crimes
47 The State alternatively contends that, if proof of
specific crimes were required, it presented evidence of a
"course or pattern of criminal activity" through
defendant's own crimes. The State maintains that the jury
heard evidence of two or more "gang-related"
offenses occurring on the day of the murder. The State relies
on defendant's convictions for first degree murder and
aggravated unlawful use of a weapon, maintaining that the
crimes were "gang-related" as defined by the Act.
740 ILCS 147/10 (West 2012).
48 The Act provides that "gang-related" means any
criminal activity directed by any gang leader or authority
with the intent to (1) increase the gang's size,
membership, prestige, dominance, or control in any
geographical area or (2) provide the gang with any advantage
in a criminal market sector or (3) exact revenge ...