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People v. Hill
State: Illinois
Court: 4th District Appellate
Docket No: 4-02-0880 Rel
Case Date: 01/30/2004

NO. 4-02-0880

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,
                    Plaintiff-Appellee,
                    v.
DEMECO D. HILL,
                    Defendant-Appellant.
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Appeal from
Circuit Court of
Macon County
No. 01CF1164

Honorable
Theodore E. Paine,
Judge Presiding.



JUSTICE APPLETON delivered the opinion of the court:

Defendant, Demeco D. Hill, appeals his conviction ofattempt (armed robbery), arguing it should be reduced to attempt(robbery) because the evidence was insufficient to prove he wasarmed with a dangerous weapon during the attempted robbery of thePrairie Pantry. We affirm.

I. BACKGROUND

On August 22, 2001, defendant was charged by information with attempt (armed robbery) in violation of section 18-2 ofthe Criminal Code of 1961 (Criminal Code) (720 ILCS 5/8-4(a), 18-2 (West 2000)) and aggravated fleeing or attempting to elude apolice officer in violation of section 11-204.1 of the IllinoisVehicle Code (625 ILCS 5/11-204.1 (West 2000)). The charges stemfrom an attempted robbery at the Prairie Pantry in Decatur onAugust 19, 2001. According to the police report, two blackmales, later identified as defendant and Shannon Garry, enteredthe store. Defendant displayed a chrome automatic handgun whileGarry went behind the counter and attempted to retrieve money outof the cash register. In the store at the time were the storeowner and a friend. A customer entered the store while therobbery was in progress. The friend left the store and calledfor help. The suspects ran from the location without taking anymoney. After a high-speed vehicular chase and a foot chase bythe police, defendant and Garry were apprehended and lateridentified by the witnesses.

The testimony from defendant's bench trial is summarized below only to the extent necessary to this disposition. Edward L. Garver, Jr., testified that he was in the PrairiePantry on the morning of August 19, 2001, visiting with hisfriend, the owner of the store, Larry Franz. Two men entered,one brandishing a pistol, and tried to rob the store. Garverdescribed the gun as "silver, sort of like a .45." He rememberedthat the gun was cocked. He testified that the two men enteredthe store through the back door and proceeded to the cash register. They were having difficulty opening the register. Whilethe two men were preoccupied, Garver ran out the door to call thepolice.

Larry Franz, the owner of the Prairie Pantry, testifiedto events largely consistent with those testified to by Garver. Franz described the gun used as "silver or chrome-colored and itwas--had a long barrel on it." He particularly recalled the longchrome barrel because it was pointed directly at him.

David Smith testified that on the day of the robbery hehad stopped at Prairie Pantry to buy some cigarettes on his wayhome from work. Smith walked into the store while the robberywas in progress. One of the robbers shouted at Smith to get onthe floor. Smith turned around, thinking it was a joke, and oneof the men stuck a gun in his side. Smith testified that he wasnot familiar with guns, but described the one pointed at him as a"nickel-plated automatic."

On July 17, 2002, the trial court found defendantguilty of both charges. The trial court denied defendant'smotion for a new trial. On September 6, 2002, defendant wassentenced to 15 years in prison on the attempt charge and 3 yearsin prison on the fleeing-and-alluding charge. This appealfollowed.

II. ANALYSIS

Defendant argues the State failed to prove beyond areasonable doubt that he was armed with a dangerous weapon duringthe commission of the robbery. He claims that since the gun hewas carrying was inoperable, it could not be classified as a"dangerous weapon" within the meaning of section 18-2 of theCriminal Code (720 ILCS 5/18-2 (West 2000)). He contends theunderlying offense of his attempt conviction should be changedfrom armed robbery to robbery. We disagree.

Defendant primarily relies upon the Illinois SupremeCourt's decision in People v. Skelton, 83 Ill. 2d 58, 414 N.E.2d455 (1980), which held that the characteristics of a "dangerousweapon" should be analyzed under an objective test to determineits true danger to others. In Skelton, the toy or replica gunused by the defendant was too light and too small to be used as abludgeon and did not fire pellets or blank shells. The courtfound the gun was not a weapon that likely would cause seriousinjury, and was therefore not a "dangerous weapon" within themeaning of the armed robbery statute. Skelton, 83 Ill. 2d at 66-67, 414 N.E.2d at 458. Defendant's reliance on Skelton, and theother cases cited in his brief, is misplaced in that all weredecided prior to the amendment of the armed robbery statute.

Prior to the enactment of Public Act 91-404, whichbecame effective on January 1, 2000 (Pub. Act 91-404,

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