JUSTICE KAPALA delivered the opinion of the court:

Defendant, Shauntel L. Andrews, was charged by indictment with aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18--4(a)(4) (West 2002)). A first trial ended in a mistrial due to jury deadlock. On retrial, a second jury convicted defendant of the offense, and the trial court sentenced him to 14 years' imprisonment. Defendant timely appeals, contending first that his second trial violated his rights under the double jeopardy clauses of the United States and Illinois Constitutions. Second, defendant contends that the offense of aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18--4(a)(4) (West 2002)) was declared unconstitutional in People v. Moss, 206 Ill. 2d 503 (2003), and, therefore, his conviction must be reversed and supplanted with a conviction of the lesser-included offense of vehicular hijacking (720 ILCS 5/18--3 (West 2002)). As alternatives to his second contention, defendant contends that the evidence presented at his second trial was insufficient to sustain his conviction of aggravated vehicular hijacking while carrying a firearm, and that the trial court erred in refusing to answer a question posed by the jury posed during its deliberation at the second trial regarding the firearm.

We reject defendant's first appellate contention, but we agree with defendant's second contention and, consequently, we do not reach defendant's two alternative appellate contentions. For the reasons that follow, we reverse defendant's conviction of aggravated vehicular hijacking while carrying a firearm in violation of subsection 18--4(a)(4), and we vacate his 14-year sentence. However, we order the entry of a judgment of conviction of the Class 1 felony of vehicular hijacking in violation of section 18--3 (720 ILCS 5/18--3 (West 2002)), and we remand this cause to the circuit court of Kane County for resentencing.

Defendant's first jury trial began on February 3, 2003. Erica Rocha testified that she drove her mother's white pickup truck to an Office Depot in Aurora, Illinois, on September 28, 2002. Erica's friend Amber Ibarra was Erica's passenger. After Erica parked the pickup truck, a man with a goatee, wearing a black "hoody" and black "Wilson" gloves, approached the pickup truck. Erica made an in-court identification of defendant as the man who approached the pickup truck. Defendant told Erica that he liked her truck and that he wanted to show her something, and he then pulled out a gun. Erica described the gun as a black metal revolver with rust spots and scratches on it. Defendant told Erica and Amber to empty their pockets and to give him all their money. After Erica and Amber told defendant that they had no money, defendant said that he liked the truck and was going to take it. After Erica asked defendant not to take the truck, defendant asked if it was worth her life. With that, Erica said no, and she and Amber got out of the pickup truck. Defendant got into the pickup truck and drove away. Thereafter, Erica telephoned the police. On October 4, 2002, Detective Guillermo Trujillo of the Aurora police department showed Erica two six-photograph arrays. Erica identified the person depicted in photograph number four in the second array as the person who took her mother's pickup truck. The individual depicted in photograph number four was defendant. On cross-examination, Erica agreed that the gun defendant had on the afternoon in question could have been fake, but she believed that it was real.

Amber Ibarra's testimony was substantially similar to Erica's testimony. Amber also made an in-court identification of defendant as the man who hijacked the pickup truck. Amber independently selected a photograph of defendant from the same arrays of photographs viewed by Erica. On cross-examination, Amber added that she saw defendant get out of a car before he approached the pickup truck. Amber responded affirmatively to defense counsel's question, "[a]nd that car you said had a half-circle shape on the trunk?"

Detective Trujillo testified that he met with Erica Rocha and Amber Ibarra on October 4, 2002, and interviewed them individually. Both Erica and Amber selected a photograph of defendant from the second of two photograph arrays and indicated that the photograph was of the man who hijacked the white pickup truck. When asked on cross-examination why he included a photograph of defendant in the photograph arrays, Detective Trujillo said that defendant's name was given to him by the North Chicago police department based on information provided to them from the arrest of James Walls and Angelo Wilcox in North Chicago. Detective Trujillo said that the North Chicago police department obtained defendant's name from James Walls and Angelo Wilcox. Detective Trujillo did not elaborate further on why defendant's photograph was included.

In his case, defendant called Officer Steven Bonnie, who testified that he took a description of the suspect from Erica Rocha and Amber Ibarra on September 28, 2002. Officer Bonnie said that in his report he used the hairstyle code "CUR," from the Aurora police department's code sheet, which corresponded to the hairstyle category of "curly slash [A]fro." On cross-examination, Officer Bonnie said that Erica and Amber told him that the suspect was an approximately 6-foot tall, 180-pound, African-American with short black hair and brown eyes, and facial hair on his chin.

Evidence technician Renaldo Rivera of the Aurora police department testified that he processed a 1997 Dodge pickup truck and a 1973 Ford Thunderbird in connection with this case. Officer Rivera indicated that he believed that the Thunderbird had a crescent or half-moon shape on the trunk. Officer Rivera said that he took prints from the Dodge pickup truck, but the prints were not sent to the lab. No gun was found in either vehicle. Officer Rivera found four black batting gloves in the Thunderbird, but none were "Wilson" batting gloves.

Defendant testified in the narrative. He admitted that he was convicted of two felony offenses in 1998. Defendant testified that he had never seen Erica Rocha or Amber Ibarra before their appearance at his trial and had never seen the pickup truck. Defendant admitted that the 1973 Ford Thunderbird belonged to him, but he claimed that the vehicle was towed from the house of a girl named Lakesha on September 28, 2002, and that he was nowhere near his car on that date. Defendant denied telling Sergeant Bell of the North Chicago police department that he sold his car to Demetrius Wilcox of Waukegan.

In its rebuttal case, for impeachment purposes, the State produced certified copies of defendant's 1998 conviction of attempted armed robbery in Kane County and defendant's 1998 conviction of attempted armed robbery in Kendall County.

In addition to giving the jury instructions on the charged offense of aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18--4(a)(4) (West 2002)), on defendant's motion and over the objection of the State, the trial court gave the jury instructions on the lesser-included offense of vehicular hijacking (720 ILCS 5/18--3(a) (West 2002)). Additionally, on the State's motion and over defendant's objection, the trial court gave the jury instructions on the lesser-included offense of aggravated vehicular hijacking with a dangerous weapon (720 ILCS 5/18--4(a)(3) (West 2002)).

The jury began deliberating at 10 a.m. After an undetermined period of time, the jury posed two questions, and the following exchange between the trial court and the attorneys ensued:

"THE COURT: Well, counsel we have some questions.

Question No. 1, what is the testimony or was there any testimony on where the pickup was found?

Second question, can we see the transcript?

I think--personally I think the answer to the first question is clear, that we can't answer it.

The second part, can we see the transcript, I believe is discretionary with the Court. There is something in the record. Although, I don't recall anything in the record on where the pickup was found.

[Assistant State's Attorney]: Correct. There would be no transcript that would be helpful.

THE COURT: So, do you wish for the Court to answer the question that way? There is no transcript that would be helpful to answer these questions?

[Defense counsel]: May I have a moment, Your Honor?

[Assistant State's Attorney]: Judge, our suggestion would be a simple answer. You've heard the testimony and the evidence. Please continue to deliberate.

[Defense counsel]: We concur with that.

THE COURT: All right. I will answer it that way.

THE COURT: I will answer you have heard the testimony of the witnesses and seen the evidence. Please continue to deliberate to your verdict.

Stay close, folks."

After the jurors deliberated further, they sent a message to the trial court at approximately 2 p.m. The following discussion ensued:

"THE COURT: We have a message from the jury. The message reads: We are deadlocked at seven/five. We all believe that the likelihood of reaching a unanimous verdict is slim.

Do you want to give them the Prim instruction?

[Assistant State's Attorney]: No.

THE COURT: Do you want me to declare a mistrial?

[Assistant State's Attorney]: Yes.

THE COURT: Okay.

[Defense counsel]: Judge, they've only been out for less than four hours.

[Defense counsel]: Judge, after speaking with the defendant, since the jury hasn't been out quite four hours, we'd ask that the Prim instruction be given."

Thereafter, the trial court instructed the jury, in accordance with People v. Prim, 53 Ill. 2d 62, 75-76 (1972), to continue deliberating to a verdict:

"THE COURT: Ladies and gentlemen of the jury, I have another instruction for you.

The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto.

Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment.

Each of you must decide the case for yourself. But do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous. But do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose or returning a verdict.

You are not partisans, you are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

With that, I'd ask you to return to the jury room and continue deliberating to a verdict."

After the jury returned to the jury room, the following comments were made:

"THE COURT: We need to determine a time.

[Assistant State's Attorney]: Wait to see if they say anything else.

THE COURT: There's going to be a time where I need--I can't be here with them for a short period of time because I have an appointment previously made. So if they're still out during that period of time, that will keep them out an hour and a half while I'm gone or we designate a time no later than 3:30 and find out if they've made any progress.

Otherwise, I don't mind keeping them here till midnight if you want to do that, I have no problems with that. But there's going to be a period of time where I cannot entertain them and they have to stay deliberating.

[Assistant State's Attorney]: Why don't we meet back here at whatever time accommodates your schedule and then makes [sic] a decision?

THE COURT: 3:20 come back, we'll discuss it. In the meantime, check your schedules for Monday. We'll do it all over again on Monday if need be."

At approximately 3:20 p.m., the parties convened. The report of proceedings discloses the following:

"THE COURT: Mr. Andrews is here. I believe what we should do is bring 'em out and see if they're any closer to arriving at a verdict. If they say no, then I'll entertain your motion again.

Anybody know where [Defense counsel] is?

THE CLERK: He's on his way.

THE COURT: Do you want to line them up, Cathy? As soon as [Defense counsel] gets in, we'll bring 'em in.

Did you wish to make your motion in front of the jury?

[Assistant State's Attorney]: No.

THE COURT: Bring 'em in.

[Defense counsel]: Judge, could we address the Court before the jury?

THE COURT: I don't think we're going to have time now, they're coming in.

***

THE COURT: Ladies and gentlemen of the jury, are you any closer to arriving at a verdict?

THE FOREPERSON: We are not, Judge.

THE COURT: You are not. Very well.

Would you ask the ladies and gentlemen of the jury to take a recess just briefly?

THE COURT: I think we had them deliberate approximately an hour and a half since the last count.

[Assistant State's Attorney]: Correct.

THE COURT: Any motions?

[Assistant State's Attorney]: Your honor, at this point they appear deadlocked. I believe their deliberation has gone on longer than the actual trial testimony. I make a motion for a mistrial.

[Defense counsel]: Judge, may I be heard?

THE COURT: Yes. You don't have to stand.

[Defense counsel]: Judge, this is a Class X charge with a statutory--this is a Class X charge with a statutory add-on that may or may not be constitutional of 15 years. That would add up to a maximum of 45 years which would amount to a life sentence for this defendant in prison.

The jury has been out five and a half hours. One hour and a half or one hour and 20 minutes since the Prim instruction was given.

The jury has offered no new messages, they're still at work as they were asked to be on the Prim instruction.

We are asking that this jury continue to deliberate. We could bring this jury back tomorrow to continue to deliberate if scheduling is a problem.

The defendant's objecting to a mistrial in any form.

And Judge, we were going to object to the jury being called out because we didn't want them to feel like they were being pressured into a verdict. But they were called out anyway. And we're objecting to a mistrial in this case.

THE COURT: The court has entertained arguments.

The court finds that the evidence was not unduly complicated. The court would find the evidence, in fact, was quite simple.

The Court would find the charges were not unduly complicated. And the Court has allowed three different variations for the jury's determination of this particular charge.

The jury has been deliberating from 10:00 this morning and it's now 3:30. The court finds that the questions tendered to the Court indicate some confusion, that the last message indicates to the Court that they are deadlocked at seven-five and they believe that the likelihood of reaching a unanimous verdict is slim. The Court has instructed the jury according to People v. Prim, Illinois Pattern Jury Instruction 26.07.

The last question asked of the foreman, the court would note the foreman of this jury is a lawyer, indicates that this jury is hopelessly deadlocked.

This Court would find that further deliberations would not result in a verdict. The Court has considered the foreperson who is a lawyer's answer and intonation of his answer. The Court would find that manifest necessity requires a mistrial be declared and the jury be discharged.

If you will bring in the jury, I will do that."

Two days after the mistrial was declared, the assistant public defender representing defendant was permitted to withdraw from the case based on an undisclosed conflict of interest. New counsel was appointed to represent defendant.

Defendant's second trial began on April 7, 2003. The testimony of Erica Rocha and Amber Ibarra was substantially the same at the second trial as their testimony at the first trial. However, Amber's testimony at the second trial included a more detailed description of the vehicle she noticed in the parking lot just before the hijacking. Amber said that defendant emerged from the passenger side of a two-door, long, "tannish, maroonish, brown," rusty car, with a half-moon in the back where the tire goes. When shown pictures of defendant's 1973 Thunderbird, Amber said that it was not the car from which defendant emerged.

The State called Officer Bonnie in its case in chief. Officer Bonnie said that Erica Rocha and Amber Ibarra described the individual who hijacked the pickup truck as an African-American male. After talking between themselves, Erica and Amber agreed that the man was about 6 feet tall and approximately 180 pounds. With respect to the suspect's hair, Officer Bonnie asked Erica and Amber if his hair was an Afro style haircut and they said yes. Officer Bonnie asked them if the suspect's hair was short, medium, or long, and they said short. Neither girl told him that the suspect's hair was curly. Officer Bonnie wrote the hairstyle code "CUR," from the Aurora police department's code sheet, which corresponded to the hairstyle category of "curly slash [A]fro," because that was the code that most closely described the girls' description of the suspect's hairstyle. The girls indicated to Officer Bonnie that the suspect had medium-toned skin and light facial hair on his chin. After the girls discussed the matter, Erica told Officer Bonnie that the suspect may have arrived in a red, rusty, two-door car.

The State also called Detective John Giamberduca of the North Chicago police department,

who testified that on September 28, 2002, he responded to a report of subjects stealing the rims from a vehicle on a street in North Chicago. Detective Giamberduca located a white Dodge pickup truck that was missing two of its rims. Detective Giamberduca was advised that the subjects who stole the rims went to the nearby residence of Lakesha Morgan. At the residence, Detective Giamberduca spoke to Lakesha Morgan and Angelo Wilcox and obtained information regarding the white pickup truck. The rims missing from the white pickup truck were found within the residence of Lakesha Morgan. After checking the license plate on the white pickup truck, Detective Giamberduca learned that it had been hijacked in Aurora, and he contacted Detective Trujillo. The white pickup truck was towed and secured along with a 1973 Ford Thunderbird parked at the residence of Lakesha Morgan. Detective Giamberduca believed that the Thunderbird was used in connection with stealing the pickup truck's rims, because he found gloves and tools used to remove lug nuts in that vehicle. On cross-examination, Detective Giamberduca indicated that he arrested Angelo Wilcox and James Walls and charged them with theft of the rims of and criminal trespass to the white pickup truck. Detective Giamberduca interviewed Wilcox, Walls, and Morgan and forwarded the information gleaned from these interviews to Detective Trujillo in Aurora.

Evidence technician Renaldo Rivera testified that he processed the white Dodge pickup truck and the Thunderbird, at Detective Trujillo's request. Officer Rivera lifted 14 fingerprint impressions from the exterior of the pickup truck and did not find any items of evidentiary value in the interior of the vehicle. Officer Rivera indicated that he recovered from the Thunderbird an impact wrench, an extension cord, some sockets and socket wrenches, two lug wrenches, two star lug wrenches, three black and white Franklin batting gloves, and one Mizuno batting glove. On cross-examination, Officer Rivera indicated that he found fingerprints within the interior of the white pickup but none were suitable for comparison. At Detective Trujillo's direction, the Thunderbird was not examined for fingerprints.

Detective Trujillo testified that on September 28, 2002, Detective Giamberduca of the North Chicago police department informed him that they had recovered a white Dodge pickup truck in North Chicago that was hijacked in Aurora and had arrested two subjects for stealing its rims. Detective Giamberduca provided Detective Trujillo with the names of two individuals whom Giamberduca's investigation showed were possibly involved in the hijacking. As a result, Detective Trujillo put together a photograph array that included a photograph of defendant, and he asked Detective Giamberduca to put together another photograph array that included a photograph of Demetrius Wilcox. Detective Trujillo explained that this is how there came to be two photograph arrays that were shown to Erica Rocha and Amber Ibarra. Detective Trujillo's testimony regarding Erica's and Amber's October 4, 2002, identifications of defendant from the second photograph array was substantially the same as his testimony at defendant's first trial.

The State produced certified copies of the Illinois Secretary of State's records of registration of and title to the 1973 Ford Thunderbird. These records indicated that the vehicle was owned by and registered to defendant on September 28, 2002. Thereafter, the State rested. Defendant presented no evidence. In addition to giving the jury instructions on the charged offense of aggravated vehicular hijacking while carrying a firearm (720 ILCS 5/18--4(a)(4) (West 2002)), the trial court gave the jury instructions on the lesser-included offense of vehicular hijacking (720 ILCS 5/18--3(a) (West 2002)). The jury returned a verdict finding defendant guilty of aggravated vehicular hijacking while carrying a firearm.

Defendant filed a posttrial motion for judgment notwithstanding the verdict or for a new trial, alleging various trial errors. Defendant also filed a motion to declare the aggravated vehicular hijacking statute unconstitutional on the ground that it violates the ban on disproportionate penalties in the United States and Illinois Constitutions. Citing People v. Moss, 206 Ill. 2d 503 (2003), defense counsel argued that the sentencing portion of the statute (720 ILCS 5/18--4(b) (West 2002)) providing the 15/20/25-to-life sentencing enhancement renders the aggravated vehicular hijacking statute unconstitutional. Thereafter, defendant supplanted the motion to declare the statute unconstitutional with a motion to dismiss the aggravated vehicular hijacking with a firearm charge pursuant to section 114--1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/114--1 (West 2002)), claiming that in Moss the aggravated vehicular hijacking statute was declared unconstitutional. Defendant concluded that his conviction based on an unconstitutional statute was void and should be dismissed.

The trial court struck as unconstitutional the sentence-enhancing language of Public Act 91--404 (Pub. Act 91--404,