delivered the opinion of the court:
At a bench trial, the State claimed that defendant, Anna M. Chirchirillo, was accountable for the acts of her codefendant when defendant helped her codefendant break into a home and steal a firearm. At no time during the trial did the State establish that the codefendant was a convicted felon. However, the State did prove that defendant was. The court found defendant guilty of residential burglary (720 ILCS 5/19 — 3(a) (West 2006)) and unlawful possession of a weapon by a felon (720 ILCS 5/24 — 1.1(a) (West 2006)) under an accountability theory and sentenced her to concurrent prison terms of 11 years for residential burglary and 3 years for unlawful possession of a weapon by a felon. In imposing the sentences, the court determined that an 11-year sentence for residential burglary was proper because the stolen gun most likely would be used to kill or harm someone. Following the denial of her posttrial motion, defendant appealed, arguing that (1) she was not proved guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon and (2) her 11-year sentence for residential burglary is excessive. We affirm in part and reverse and vacate in part.
The relevant evidence presented at trial consisted of the following. Rich Schrock testified that his home was broken into on April 18, 2006. After making this discovery, Schrock searched his home to discover what, if anything, was stolen. Schrock learned that the .357 Smith and Wesson that he kept in the headboard of his bed in his locked bedroom was missing. Schrock stated that the only people who knew about his gun were his two daughters, one of whom was named Tiffany. His daughters did not have keys to his house and were not given permission to enter his home. Schrock stated that, as of the time of trial, his gun had not been recovered.
Officer Jeff Blake testified that he processed the crime scene at Schrock’s home. During his investigation, he discovered latent fingerprints on the inside and outside of the storm window that covered the window in Schrock’s bedroom. Officer Blake, who was familiar with Tiffany, did not believe that she could have broken into Schrock’s home through that window, because the window opened only 14 inches and Tiffany was too large to fit through that opening.
Following his investigation, Officer Blake removed the storm window and submitted it to the crime lab along with Tiffany’s and defendant’s fingerprint cards. Officer Blake stated that he decided to forward defendant’s fingerprint card to the crime lab because Tiffany and defendant were often together, and thus he believed that, if Tiffany were involved in the burglary of her father’s home, defendant might also be. Based on the fingerprint analysis that Officer Blake received from the crime lab, he decided to interview defendant.
Although defendant initially denied any involvement in the crimes, she later indicated, only after Officer Blake told her that 5 of the 17 fingerprints found on the storm window were positively identified as belonging to her, that she helped Tiffany gain access to Schrock’s home. In her statement, defendant indicated that on April 18, 2006, she, Tiffany, and two other people were discussing what they could do to get money to buy drugs. During that conversation, Tiffany informed the group that Schrock kept a gun in his home and that they could steal the gun and sell or trade it for drugs. The group then drove to Schrock’s home, where defendant crawled through Schrock’s bedroom window, unlocked Schrock’s bedroom and front doors, and let Tiffany into Schrock’s house. Once Tiffany was inside Schrock’s home, she immediately went to the headboard of Schrock’s bed, removed the gun he kept there, and put the gun in her waistband. Defendant and Tiffany returned to the car, and everyone but defendant went to see a man named “Crazy” about trading or selling the gun for drugs.
Later, defendant modified her statement, saying that Tiffany put the gun in her shirt and that Crazy said that he would scratch off the serial number on the gun so that it could not be traced. After the police confronted her, defendant again altered her statement, indicating that she lied when she said that she did not accompany her friends to see Crazy. Defendant explained that she went with her friends to Aurora to see Crazy and that they traded the weapon for drugs.
The State then submitted proof that defendant was a convicted felon. Defendant had been convicted of three counts of deceptive practices, which is a Class 4 felony (720 ILCS 5/17 — 1(B) (d) (West 2004)). At no time did the State submit any proof that Tiffany was a convicted felon.
During closing arguments, the State argued that defendant was guilty of both unlawful possession of a weapon by a felon and residential burglary under an accountability theory. The trial court found defendant guilty of both offenses. In making that decision, the court stated:
“[T]he one question that kind of stuck a little bit was the question of the accountability concept as it applies to the possession of the weapon as a felony charge. Hence my specific question, I don’t think anybody was trying to argue that [defendant was] accountable for some other felon’s possession of a weapon. It’s a theory that the accountability concept applies to the possession element of possession of weapons by a felon. I find the State’s argument with regard to — it’s like a drug transaction where someone motivates — or to use the words in the accountability statute, with the intent to promote or facilitate the commission of an offense they knowingly solicit, aid, abet, agrees to aid or attempts to aid the other person in the planning or commission of an offense. And specifically where somebody prompts someone else to do drug transactions so they don’t have to touch the item, that doesn’t mean that they’re not guilty of this offense. And that concept, I think, does apply in this case. I think that when [defendant] was involved in this situation and before they went over to the house, they knew exactly why they were going into the house, she knew at that time she was [a] felon, she knew what kind of risks were involved. Even though she didn’t have her hands on the gun, the theory that we’re talking about in terms of accountability where she at least at a minimum aided and abetted in that concept applies.”
The relevant testimony presented at the sentencing hearing revealed the following. Robert Enlow, defendant’s former probation officer, testified that defendant did not comply with the terms of her probation. For instance, defendant never sought treatment for her addiction. Defendant, who was homeless, also would he about where she was living and would associate with people with whom she was court-ordered not to have contact.
Defendant testified that she was 21 years old, that she had a 6-year-old son who was living with his grandmother, that she desired treatment for her addiction, that she would like to go to school to become a certified nurse’s assistant, and that she was willing to compensate Schrock for the loss of his gun. When the offenses were committed, defendant was under the influence of drugs and did not believe that anyone would be harmed as a result of the crimes. Defendant also did not know what Crazy would do with the gun or that the gun would be “out in the street.” Although defendant indicated in her statement that Crazy was going to scratch off the serial number on the gun, she did not understand the purpose for such an act. Now, however, she realized that the purpose was so that the gun could not be traced. On cross-examination, defendant admitted that in her statement she specifically stated that the serial number on the gun was going to be scratched off so that it could not be traced.
In sentencing defendant, the trial court went through all of the factors in aggravation and mitigation. In so doing, the court commented about whether physical harm was caused or threatened to another. 730 ILCS 5/5 — 5—3.1(a)(1) (West 2006). The court stated:
“While I understand that there were no specific injuries because of the firing of a gun during this situation, what haunts me through the entire sentencing hearing is the question of what happened to the gun. I don’t know that but the fact is that there’s only one thing a gun can be used for and I don’t think once the serial number was obliterated from this gun it was intended to be used in a practice range. I think that’s very clear and I don’t think that there’s anybody in this courtroom that can believe otherwise. Second of all — so I will give the proper weight to that comment that I just made in making my decision.”
The court then found that, although defendant may not have realized that the gun could be used to commit future crimes, she never acted in any way to diminish that potential, such as by alerting the police before her arrest that the gun was traded to Crazy. 730 ILCS 5/5 — 5—3.1(a)(2) (West 2006). In assessing whether defendant acted under strong provocation, the court determined that defendant’s drug addiction certainly contributed to her crimes. 730 ILCS 5/5 — 5— 3.1(a)(3) (West 2006). The court also found that there were no grounds tending to excuse defendant’s criminal conduct (730 ILCS 5/5 — 5— 3.1(a)(4) (West 2006)), that defendant’s criminal conduct was facilitated by Tiffany and the other people she was with (730 ILCS 5/5 — 5—3.1(a)(5) (West 2006)), that defendant had agreed to reimburse Schrock for his loss (730 ILCS 5/5 — 5—3.1(a)(6) (West 2006)), that defendant had not led a law-abiding life for a substantial period of time before she committed the current crimes (730 ILCS 5/5 — 5— 3.1(a)(7) (West 2006)), that defendant would still be able to see her son even if she were imprisoned (730 ILCS 5/5 — 5—3.1(a)(ll) (West 2006)), and that imprisonment would not endanger defendant’s health (730 ILCS 5/5 — 5—3.1(a)(12) (West 2006)). The court further stated that it was unsure whether defendant’s criminal conduct was likely to recur or whether defendant’s character and attitude indicated that she was unlikely to reoffend (730 ILCS 5/5 — 5—3.1(a)(8), (a)(9) (West 2006)).
In assessing the factors in aggravation, the court stated:
“As I said just a minute ago, even though the gun wasn’t discharged at the time that the residential burglary occurred, there’s no doubt about the fact that guns are only used for one purpose, and especially when they’re sold to somebody who’s a known dealer of drugs and the serial number is obliterated. I understand your comment that you feel you didn’t know that but I don’t believe you.”
The court then found that defendant was compensated for her crimes when Crazy gave her and her friends drugs in exchange for the weapon (730 ILCS 5/5 — 5—3.2(a)(2) (West 2006)) and that defendant had a mounting criminal history (730 ILCS 5/5 — 5—3.2(a)(3) (West 2006)). The court also observed that defendant was given the option of treating her drug problem in the past and that she had failed to address her addiction. Given these facts, the court doubted that defendant was seeking to treat her addiction now because she truly desired to get well. Rather, the court believed that, given that defendant was in jail and that the court would consider anything she said, defendant may have merely said what she thought the court needed to hear from her in order to impose a minimal sentence. The court then sentenced defendant to concurrent prison terms of 11 years for residential burglary and 3 years for unlawful possession of a weapon by a felon.
Defendant filed a timely posttrial motion. Although defendant argued in her motion that her sentences were excessive in light of the mitigating evidence, she did not claim that the State failed to prove her guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon under an accountability theory when it did not establish that Tiffany was a convicted felon. The trial court denied defendant’s posttrial motion, and this timely appeal followed.
On appeal, defendant raises two issues. She argues that she was not proved guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon under an accountability theory and that her 11-year sentence for residential burglary is excessive. We consider each argument in turn.
The first issue we address is whether defendant was proved guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon under an accountability theory. In considering that issue, we note that the parties disagree about which standard of review should apply. Citing People v. Smith,
Defendant advances two reasons why she was not proved guilty beyond a reasonable doubt. First, she claims that “[t]he State erroneously expanded the accountability theory because there was no evidence that [defendant] ever possessed Mr. Schrock’s handgun.” Second, she argues that, “[w]hile the State established that Tiffany Schrock possessed the handgun, it failed to present any evidence at all that Tiffany was a felon. Therefore, [defendant] could not be accountable for Tiffany’s guilt for an offense that Tiffany did not commit.”
The dispositive subissue is whether the State’s failure to establish that Tiffany was a convicted felon mandates that defendant cannot be guilty of unlawful possession of a weapon by a felon under an accountability theory. As a threshold matter, we note that defendant never raised this issue in the trial court, and, thus, her argument could be considered forfeited. Compare People v. Lindsey,
Under Illinois law, a person is legally accountable for another’s criminal conduct when, “[ejither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.” 720 ILCS 5/5— 2(c) (West 2006); see People v. Dennis,
We find the decision in People v. Griffin,
The facts presented at the jury trial revealed that the victim, a 12-year-old girl, was walking with her 12-year-old female cousin when the victim saw two young men she knew from a nearby community center. Griffin,
The jury returned a single general verdict finding the defendant guilty of aggravated criminal sexual assault and criminal sexual assault. The jury’s verdict did not indicate whether the aggravated criminal sexual assault convictions were based on the ages of the victim and the perpetrator or on bodily harm. The trial court merged the two aggravated criminal sexual assault counts that were based on age and the two counts of criminal sexual assault into the two counts of aggravated criminal sexual assault that were premised on bodily harm, and it sentenced the defendant to concurrent terms of seven years’ imprisonment. Griffin,
On appeal, in assessing whether the jury was properly instructed as to the defendant’s accountability for the aggravated criminal sexual assault counts based on age, the appellate court observed that a defendant cannot be held accountable for an aggravated criminal sexual assault based on age when that offense allegedly is committed by a person younger than 17 against a victim who is 12, because, under such circumstances, no violation of that provision of the aggravated criminal sexual assault statute occurs. Griffin,
Likewise, in Fagan v. Washington,
The Seventh Circuit found that, based on such evidence, the defendant was not proved guilty beyond a reasonable doubt of murder under an accountability theory.
1
Fagan,
Consistent with the decisions in Griffin and Fagan, other states have observed that a defendant cannot be found guilty of an offense under an accountability theory if the State has failed to establish the principal’s guilt of the charged crime. Miller v. People,
Here, the trial court found that defendant was accountable for Tiffany’s act of possessing Schrock’s weapon and that, because defendant was a convicted felon, she was guilty of unlawful possession of a weapon by a felon. However, as the above cases instruct, defendant could not be held accountable for aiding Tiffany in that offense when it was never established that Tiffany was a convicted felon. Because the felony status of the person possessing the weapon is an element of unlawful possession of a weapon by a felon, the State, in order to establish that defendant was accountable for unlawful possession of a weapon by a felon, had to prove that Tiffany possessed the weapon, that Tiffany was a convicted felon, and that defendant aided, abetted, or agreed or attempted to aid Tiffany in the planning or commission of that offense.
The State claims that defendant’s conviction should be upheld because the unlawful possession of a weapon statute was designed to deter felons, who are perhaps more likely than most people to use weapons to harm others, from possessing weapons. While that may be the policy behind making it illegal for felons to possess weapons, we cannot affirm defendant’s conviction based solely on this policy.
The State also attempts to justify defendant’s conviction by arguing that she constructively possessed the weapon. Thus, because defendant is a convicted felon, she could have been found guilty of unlawful possession of a weapon by a felon when she was with Tiffany, who actually possessed Schrock’s gun. The fundamental flaw with the State’s argument is that it cannot, after advancing an accountability theory at trial and obtaining a conviction under that theory, advance a different theory of guilt on appeal. As the Seventh Circuit noted in Fagan in addressing a claim that the defendant could have been proved guilty of murder under the theory of felony murder, “the [Sjtate must live with the consequences of having proceeded on a theory that it could not establish with the certitude required in criminal cases.” Fagan,
We are mindful of the trial court’s concern that a defendant who is a convicted felon may seek to avoid liability for unlawful possession of a weapon by a felon under an accountability theory simply by having another person, who is not a convicted felon, maintain control over the weapon. However, a defendant’s attempt to escape liability in such a manner is not foolproof. Although, under such circumstances, the State may not be able to establish the defendant’s guilt under an accountability theory, the State certainly could argue that the defendant constructively possessed the weapon and that, because the defendant is a convicted felon, he or she is guilty of unlawful possession of a weapon by a felon. See Lindsey,
We now address whether defendant’s 11-year sentence for residential burglary is excessive because the trial court speculated about the harm that the gun could cause to future unknown victims. As an initial matter, we consider whether, as the State urges, defendant forfeited review of this argument by failing to raise it during the sentencing proceedings and by participating in the presentation of evidence and arguments that induced the alleged error. We find no forfeiture here, because, even if defendant failed to preserve this precise issue in the trial court, the forfeiture rule is less rigidly applied when the claimed error is based on the trial court’s conduct. People v. Primm,
As to the merits, the trial court is the proper forum to determine a sentence, and the trial court’s sentencing decision is entitled to great deference and weight. People v. Latona,
In determining an appropriate sentence, relevant considerations include the nature of the crime, the protection of the public, deterrence, and punishment, as well as the defendant’s rehabilitative prospects and youth. People v. Kolzow,
Residential burglary is a Class 1 felony. 720 ILCS 5/19 — 3(b) (West 2006). A defendant convicted of a Class 1 felony faces a prison term of between 4 and 15 years. 730 ILCS 5/5 — 8—1(a)(4) (West 2006). Defendant’s 11-year sentence fell within the upper middle of this range.
Defendant argues that her sentence is oppressive because the court speculated about the harm that the gun could cause to future unknown victims. We disagree. Indeed, the court was fully entitled to observe that stealing and selling a gun is more serious than stealing and selling something like a television or a stereo. See People v. Spicer,
Thus, for these reasons, we reverse defendant’s conviction of unlawful possession of a weapon by a felon and vacate the 3-year sentence imposed on that offense, and we affirm defendant’s 11-year sentence for residential burglary.
Affirmed in part and reversed and vacated in part.
JORGENSEN and BURKE, JJ., concur.
Notes
As relevant, a defendant is guilty of first degree murder when the State proves beyond a reasonable doubt that, in performing the acts that cause the death of an individual: “(1) he either intends to kill *** that individual *** or knows that such acts will cause death to that individual ***; or (2) he knows that such acts create a strong probability of death *** to that individual.” 720 ILCS 5/9 — 1(a)(1), (a)(2) (West 2008).
That is not to say, however, that an accomplice cannot be found guilty beyond a reasonable doubt when the principal has an affirmative defense. See 2 W LaFave, Substantive Criminal Law §13.3(c), at 364 (2d ed. 2003) (“[o]ne question which has not been resolved is whether the various defenses available to the principal *** are likewise available to the accomplice in the sense that the accomplice may establish the defense and thus show that no crime was committed by the principal”). In such a case, the principal has still committed the crime, but, because of some legal excuse or justification, the principal is not liable for his actions. See Black’s Law Dictionary 451 (8th ed. 2004) (an affirmative defense is “[a] defendant’s assertion of facts and arguments that, if true, will defeat the *** prosecution’s claim, even if all the allegations in the complaint are true”).