Opinion
No. 1-10-2545
02-22-2013
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff - Appellee, v. LAVONSHAY COOPER, Defendant - Appellant.
Notice: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County
No. 09 CR 11150 (04)
Honorable Mary Margaret Brosnahan, Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lampkin and Justice R. Gordon concurred in the judgment.
ORDER
¶ 1 HELD:The trial court is affirmed, the court finding no error or bias in the record. The second amendment challenge fails. The conviction for unlawful use of a weapon pursuant to section 24-1(a)(10) of the Criminal Code (720 ILCS 5/24-1(a)(10))(West 2008)) is vacated under the one-act, one-crime doctrine. ¶ 2 Following a bench trial, defendant, Lavonshay Cooper, was convicted on three counts: I) unlawful use or possession of a weapon by a felon under section 24-1.1(a) of the Criminal Code (the Code) (720 ILCS 5/24-1.1(a) (West 2008)); II) aggravated unlawful use of a weapon under section 24-1.6(a)(1) of the Code (720 ILCS 5/24-1.6(a)(1) (West 2008)); and III) unlawful use of a weapon on Chicago Housing Authority grounds under section 24-1(a)(10) of the Code (720 ILCS 5/24-1(a)(10) (West 2008)). Counts I and II were merged and the sentence of five years in the Illinois Department of Corrections was to run concurrently with count III for which defendant was sentenced to five years. This timely appeal followed. ¶ 3 On appeal defendant contends: 1) the State failed to lay a proper foundation for the videotape submitted at trial; 2) Commander Angarone's lay opinion testimony as to what the videotape depicted was inadmissible hearsay; 3) the trial court pre-judged defendant's sentence and therefore presented a substantial risk of bias; 4) the statutes creating the offenses under which defendant was convicted are unconstitutional; and 5) the conviction for unlawful use of a weapon under section 24-1(a)(10) of the Code (720 ILCS 5/24-1(a)(10) (West 2008)) should be vacated under the one-act, one-crime doctrine. ¶ 4 For the reasons set forth below, we hold that: 1) no error was committed in admitting the videotape into evidence; 2) Commander Angarone's testimony was not considered by the trial court for the truth of the matter asserted, and therefore was not inadmissible hearsay; 3) no judicial bias was apparent on the record or established by the defendant; 4) the statutes under which defendant was convicted are constitutional; and 5) defendant's conviction for unlawful use of a weapon under section 24-1(a)(10) of the Code (720 ILCS 5/24-1(a)(10) (West 2008)) is vacated under the one-act, one-crime doctrine.
¶ 5 BACKGROUND
¶ 6 Commander Ken Angarone testified in the early morning of May 17, 2009, while overseeing the pod camera system at the 18th District station, he received a radio transmission of shots fired at 1230 N. Larrabee Street in Chicago. The closest camera to 1230 N. Larrabee Street was located across the street at 1230 N. Burling Street. He operated the 660 W. Division Street pod camera to bring into view the back of the 1230 N. Larrabee Street building. He observed two individuals, Terrance Delaney and David Hudson, exit the back of the building, seconds later followed by defendant, Lavonshay Cooper. Delaney opened the trunk of a 2008 Chrysler Sebring, and he and Hudson both tossed a handgun into the trunk of the vehicle. Moments later Angarone observed defendant walk around to the passenger side of the vehicle, and with his right hand remove a handgun from his waistband and throw it into the trunk of the Sebring. Delaney closed the trunk. Angarone then watched as Delaney, Hudson, and defendant walked away in the direction of responding officers. As they walked away, Angarone observed Delaney place an item on top of a tire approximately two vehicles away from the Sebring. ¶ 7 Sergeant Don Markham responded to shots fired at 1230 N. Larrabee Street at 3:00 a.m. on May 17, 2009. He testified that with information he received from Angarone, he directed one of his officers, Tom Zatora, to the location where Delaney was observed placing the item. The key fob to the Sebring was recovered from on top of the tire and Zatora used it to open the trunk of the vehicle. Zatora and Markham both testified upon opening the trunk of the vehicle three handguns were found inside. The trunk contained no other items. ¶ 8 Defendant was jointly, but separately tried along with Delaney who was represented by counsel, Chuck Murphy. Defendant did not object in a pretrial motion to the use of the videotape at trial. Both the State and defense counsel were in agreement that Angarone would testify regarding the videotape. In a motion in limine, Murphy requested that Angarone not be allowed to testify as to what the videotape depicted. Defense counsel adopted Murphy's objection to limit the officer's testimony. The trial court agreed, and limited Angarone's testimony to what he believed he observed on the videotape as it related to his state of mind and to explain his course of conduct. No other objections were raised. ¶ 9 During Angarone's testimony the State moved the videotape to be admitted into evidence and the trial court asked defense counsel whether or not there would be any objection. Defense counsel responded with "no objection." Clips from the original videotape were also submitted into evidence without objection. Defense counsel adopted the cross-examination of Murphy, counsel for defendant Delaney. Murphy questioned Angarone regarding the videotape, whether it "exactly replicate[d]" the view Angarone had of the scene, to which Angarone stated, "it is." Murphy inquired whether Angarone was able to read the license plate number on the videotape or see inside the trunk, to which he responded, "I was not." Defense counsel then proceeded to cross-examine Angarone also utilizing the videotape, specifically asking Angarone to step off the stand to view the videotape and state how many people were coming out of the building and which one he believed was defendant. ¶ 10 Three photographs of the trunk of the vehicle were admitted into evidence at trial with no objection. The first was of the Chrysler Sebring with the trunk closed; the second was of the three handguns inside of the trunk; and the third was a close up of the three handguns. ¶ 11 At the conclusion of the trial, the court found the trunk of the vehicle to be "unbelievably car-dealership clean" with "nothing so much as a gum wrapper" inside except for the three handguns. The trial court reasoned it would "absolutely defy logic" to believe the defendant did not throw something into the trunk of the vehicle. Since only three guns were found in the trunk, "there is nothing else that it could have been." The trial court found defendant guilty on all three counts. ¶ 12 At sentencing the State entered into evidence defendant's prior convictions and called the arresting officers in two prior cases to testify in aggravation. The only mitigating factor presented by defendant was that he did not resist arrest. The trial court considered each mitigation and aggravation factor and ruled on whether or not it applied in this case, specifically finding it was likely defendant would commit another crime. Due to his prior class II felony, defendant was ineligible for probation and could only receive a term in the penitentiary. The trial court entered a sentence of five years in the Illinois Department of Corrections. ¶ 13 Though a posttrial motion was presented, it did not raise any objection to the foundation or admission of the videotape, to the alleged judicial bias, or to the sentence imposed.
Commander Angarone was a captain at the time the offense occurred. At the time of trial his title was commander, thus we will refer to him as commander in this order.
¶ 14 ANALYSIS
¶ 15 I. The Videotape
¶ 16 A. Plain error
¶ 17 Defendant first contends the videotape was improperly admitted into evidence because no foundation was laid. Defendant argues the evidence was closely balanced, as the trial court admitted to watching the videotape multiple times before coming to the conclusion that the person identified as defendant held something in his hand. Defendant argues had the tape been excluded the court would have found in defendant's favor. ¶ 18 To preserve an issue for review, defendant must object both at trial and include the alleged error in a written posttrial motion. People v. Leach, 2012 IL 111534, ¶ 59 (2012). Failure to do so operates as a forfeiture as to that issue on appeal. People v. Ward, 154 Ill. 2d 272, 293 (1992). Illinois Supreme Court Rule 615(a), known as the "plain-error" doctrine, however, carves out an exception to forfeiture in order to permit review of issues otherwise procedurally defaulted. People v. Lewis, 234 Ill. 2d 32, 42 (2009). If the error complained of rises to the level of plain error it may be considered by a reviewing court despite the defendant's failure to properly preserve the issue for review. ¶ 19 In light of the fact defense counsel did not object to either the admission of the videotape or to the video clips at trial and failed to raise this issue in a posttrial motion, defendant requests this court review the admission of the videotape under the plain-error doctrine. Under the plain-error doctrine, this court will review forfeited challenges when: 1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant; or 2) a clear or obvious error occurred, and the error is so serious that it affected the fairness of the defendant's trial and the integrity of the judicial process, regardless of the closeness of the evidence. People v. Herron, 215 Ill. 2d 167, 178-79 (2005). The defendant bears the burden of persuasion under each prong of the doctrine. People v. Naylor, 229 Ill. 2d 584, 593 (2008). Where a defendant is unable to establish plain error, it is incumbent upon us to honor the procedural default. People v. Keene, 169 Ill. 2d 1, 17 (1995). In undertaking this review, it is appropriate to first determine whether error occurred at all. People v. Williams, 193 Ill. 2d 1, 27 (2000). ¶ 20 When a defendant "procures, invites, or acquiesces in the admission of evidence, even though the evidence is improper, she cannot contest the admission on appeal." People v. Bush, 214 Ill. 2d 318, 332 (2005). This is because, by acquiescing in rather than objecting to the admission of allegedly improper evidence, a defendant deprives the State of the opportunity to cure the alleged defect. Id.; see People v. Trefonas, 9 Ill. 2d 92, 98 (1956) ("A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial"). ¶ 21 We find no error was committed in the admission of the videotape. Defendant acquiesced in the admission of both versions of the videotape by failing to object despite having at least four procedural opportunities in which to do so. Defendant joined in Murphy's motion in limine which did not object to Angarone testifying as to the video. Defendant, when specifically asked by the court whether or not he objected to the admission of the video into evidence stated, "no objection." When the video clips were admitted into evidence there was no objection. Lastly, there was no objection in a posttrial motion challenging the admissibility of the videotape as improper. Further, as will be discussed below, as part of trial strategy, defense counsel wanted the videotape admitted into evidence. Defense counsel utilized it extensively during his cross-examination of Angarone and in his closing argument. Our review of the record also demonstrates that there was a strategic decision by defense counsel not to challenge the admission of the videotape. Because there was no error in this case, we need not conduct a plain error analysis.
¶ 22 B. Ineffective assistance of counsel
¶ 23 Defendant argues his counsel's performance was ineffective for failing to object to inadmissible evidence that was highly prejudicial. Defendant asserts that, had his counsel objected to the lack of a proper foundation for the videotape, the outcome of the trial would have been different. ¶ 24 To prevail on a claim of ineffective assistance of counsel, a defendant must show both: 1) that counsel's performance was deficient; and 2) the deficient performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504 (1984)(adopting Strickland).In order to prove ineffective assistance of counsel, defendant must overcome the presumption that the challenged conduct might be considered sound trial strategy under the circumstances. People v. Giles, 209 Ill. App. 3d 265, 269 (1991). A decision that involves a matter of trial strategy will typically not support a claim of ineffective representation. People v. Simmons, 342 Ill. App. 3d 185, 191 (2003). ¶ 25 Here, the State moved the videotape into evidence without objection by defense counsel. In cross-examination, defense counsel adopted the questions of Delaney's counsel, who used the videotape to inquire as to Angarone's ability to actually see what was contained in the videotape. Defense counsel asked Angarone specific questions which required use of the videotape during counsel's cross-examination. The utilization of the videotape in an attempt to discredit Angarone's testimony was part of defense counsel's trial strategy. Thus, defendant fails to overcome the presumption that counsel's use of the videotape was sound trial strategy. As a result, defendant cannot establish a claim for ineffective assistance of counsel.
¶ 26 II. Admission of Angarone's Opinion Testimony
¶ 27 The next issue on appeal is whether the testimony given by Angarone was inadmissible lay opinion testimony. Defendant asserts, despite the trial court ruling the testimony would not be considered for the truth of the matter asserted, Angarone was allowed to testify as to what he believed the videotape depicted, specifically that defendant could be seen throwing a handgun into the trunk of the vehicle. Defendant contends Angarone's testimony was no assistance to the trial court, as the trial court could itself determine what was depicted in the videotape. ¶ 28 Throughout the trial, over defendant's objection, the trial court permitted Angarone's testimony, not for the truth of the matter asserted, but instead to explain his state of mind and his course of conduct during the investigation. This objection was not included in defendant's posttrial motion and thus the issue was forfeited. See Leach, 2012 IL 111543, ¶ 59. However, defendant asks this court to review the admission of Angarone's testimony under the plain-error doctrine, as the evidence is close enough in this case to tip the scales against the defendant. As stated previously, we must first determine whether or not error occurred. Williams, 193 Ill. 2d at 27. ¶ 29 The hearsay rule prohibits the fact finder from considering testimony in court of a statement made out of court, where such statement is offered to show the truth of the matter asserted. People v. Carpenter, 28 Ill. 2d 116, 121 (1963). Yet, where an out-of-court statement is offered not to prove the truth of the matter asserted, but rather to explain the manner in which a police investigation was conducted, the testimony is not hearsay. People v. Wallace, 210 Ill. App. 3d 325, 334 (1991). "As a court of review, we must presume that the trial court considered only competent evidence unless the contrary affirmatively appears of record." Id. ¶ 30 Prior to the submission of the videotape into evidence, Angarone testified as to what he personally observed through the pod camera on the morning of May 17, 2009, in the back parking lot of 1230 N. Larrabee Street. The testimony included witnessing the defendant exit from the back of the building, walk around to the passenger side of the vehicle, make a shoulder shrugging motion, raise his right arm and drop a handgun into the trunk of the vehicle. No objection was made to this testimony. Yet when Angarone was questioned regarding the images in the videotape, defense counsel raised his objection and each time the trial court stated it would not be considered for the truth of the matter asserted. The trial court was clear it would only consider the testimony to explain Angarone's course of conduct. ¶ 31 Based on our review of the record we find the trial court did not consider Angarone's testimony for the truth of the matter asserted, but rather to demonstrate his state of mind and his course of conduct as the officers appeared on the scene. Because no error occurred, there is no need to engage in a plain error analysis. Moreover, since there is no error in this case, defendant's further argument of ineffective assistance of counsel is not considered.
¶ 32 III. Bias
¶ 33 Defendant contends the trial court was biased because it determined prior to the sentencing hearing that if defendant was found guilty he would be sentenced to at least four years incarceration. Defendant's assertion is based on statements made by the trial court during sentencing which are as follows:
"I am going through the original probation specs from case number 08-CR-9495, as well as the other felony where I gave him concurrent probation on 7/16 of '08. And there is a notation on here that I told the defendant that if he violated, the minimum that I would consider giving him would be four years in the Illinois Department of Corrections. That would be the minimum. And as I explained to him at that time it would only go up from there.¶ 34 A trial judge is under no duty to recuse because they presided at a prior trial of a codefendant or even because they presided at a prior trial of the defendant in the same cause. People v. Neumann, 148 Ill. App. 3d 362, 369 (1986). Further, to be disqualifying, the alleged bias or prejudice of the trial court must be shown to have stemmed from an extrajudicial source and result in an opinion on the merits on a basis other than what the judge learned from the case. Id. The burden of establishing actual prejudice is on the defendant. People v. Nickols, 41 Ill. App. 3d 974 (1976). In the absence of a showing of animosity, hostility, ill will, or distrust towards the defendant, proof falls short of establishing the actual prejudice which would interfere with a fair trial. Neumann, 148 Ill. App. 3d at 370. ¶ 35 In regards to sentencing, "a trial court has broad discretionary authority in sentencing a criminal defendant." People v. Evans, 373 Ill. App. 3d 948, 967 (2007). Deference is shown to the trial court, as it is better positioned to decide the appropriate sentence, and thus the sentencing decision is not overturned absent an abuse of discretion. Id. In determining an appropriate sentence, the trial judge is further required to consider all factors in aggravation and mitigation, which include defendant's credibility, demeanor, general moral character, mentality, social environments, habits, and age, as well as the nature and circumstances of the crime." Id. If the sentence is in the statutory range, it will not be deemed excessive unless it is not within the sprit of the law or manifestly disproportionate to the nature of the offense. People v. Starnes, 374 Ill. App. 3d 132, 143 (2007). ¶ 36 In the case before us, defendant fails to prove actual prejudice. In two prior felony cases the court specifically admonished defendant that if he violated his probation a sentence would be entered for a minimum of four years in the Illinois Department of Corrections. Before sentencing defendant in this case, the trial court went through each mitigation and aggravation factor and ruled on whether or not it applied in this case, specifically finding it was likely defendant would commit another crime. Due to his prior class II felony, defendant was ineligible for probation and could only receive a term in the penitentiary. Further, the prior statement made by the trial court in regard to the minimum of four years was not recalled until after the conclusion of the sentencing hearing. In this case, the trial court stated it was its practice to have a discussion with every person who comes before the court with no prior felony background and relay to them that if there is any future violation what the minimum sentence would be. ¶ 37 In this case, the sentence entered was five years, which is well within the sentencing guidelines of sections 24-1.1 and 24-1.6 of the Code (720 ILCS 5/24-1.1, 24-1.6 (West 2008)) of 3 to 14 years. The trial court carefully considered all the evidence presented, weighed the mitigating and aggravating factors, and issued a sentence that was within the statutory guidelines. There is no showing of any extrajudicial bias in this matter, therefore the sentence imposed was proper. ¶ 38 Defendant further asserts that the trial court's pre-determination that defendant would not be eligible for boot camp rendered his jury waiver invalid. Defendant contends this pre-determination precluded defense counsel from giving him the advice he needed in order to make an intelligent and knowing jury waiver and whether to enter into a plea agreement with the prosecution. ¶ 39 Every criminal defendant has a constitutional right to a jury trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, §§ 8, 13. However, a defendant may waive that right if he does so knowingly and understandingly and in open court. 725 ILCS 5/103-6 (West 2008). There is no constitutional requirement that the court apprise a defendant of his right to a jury trial. People v. Rincon, 387 Ill. App. 3d 708, 717-18 (2008). A written and signed jury trial waiver lessens the probability that the waiver was not made knowingly. People v. Clay, 363 Ill. App. 3d 780, 791 (2006). A jury waiver is valid if it is presented by defense counsel in defendant's presence in open court, without objection by defendant. People v. Frey, 103 Ill. 2d 327, 332 (1984). All of these requirements were met in this case, a written jury waiver was signed and the defendant, with counsel present, was apprised by the court of his right to a jury trial. ¶ 40 Defendant does not contest knowingly signing the jury waiver. Instead, he argues had defense counsel known the trial court's predisposition to sentence him to a minimum of four years in the department of corrections, he would have been advised differently and possibly would not have waived his right to a jury trial. As established by the record in this case, and the prior cases in which defendant was sentenced to probation, the trial court admonished defendant in the prior cases that commission of another crime would result in incarceration. Additionally, defendant was on probation and knew a violation of his probation could result in incarceration. Defense counsel, with a thorough review of his client's record, could determine that a potential outcome in this case was incarceration of his client. ¶ 41 As stated above, the trial court was not biased in this matter and sentenced defendant appropriately under the statue. The sentencing hearing was conducted with evidence presented from both sides in mitigation and aggrivation. Thereafter, the sentence was carefully and methodically considered by the trial court, with each mitigating and aggravating factor ruled upon. In addition, the five year sentence was well within the statutory guidelines of three to fourteen years. Defendant's jury waiver was made knowingly and he suffered no prejudice as a result of his ineligibility for boot camp.
***
And every time I have a young man in front of me with no prior felony background, who I give probation to, I do have a discussion with them and I talk with them about the choices that they're going to have to make on the probation and how it's my hope for them that this is going to be their last time in front of me in court.
***
But in this particular case, obviously probation was not the answer for Mr. Lavonshay Cooper either.
***
Obviously under the law the attorneys are aware that the defendant is non-probationable. He's got a prior Class 2 felony in his background from just 2008.
***
But I did tell you back on the date of that plea of 7/16 of 2008 that you were going to be then responsible for the choices that you were going to make. And I told you what would happen if there was a proven violation of either one of these probations. Of course I wouldn't know what kind of case it was going to be so I told you and you knew the minimum sentence would be 4 years on the bottom in the Department of Corrections without any Boot Camp. That was what you said you understood when you undertook the probation."
¶ 42 IV. Unconstitutionality of the Statutes Under Which
Defendant Was Convicted
¶ 43 Defendant argues the three statutes under which he was convicted violate the second amendment right to bear arms and are therefore unconstitutional. Defendant was found guilty under the aggravated unlawful use of a weapon statute, the unlawful use of a weapon by a felon statute, and the unlawful use of a weapon statute. 720 ILCS 5/24-1.1(a), 24-1.6(a)(1), 24-1(a)(10) (West 2008). Defendant cites to District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 561 U.S. __, 130 S. Ct. 3020 (2010), for the proposition that individuals are allowed under the second amendment to carry firearms for the lawful purpose of self defense. ¶ 44 Though not raised in the trial court, the constitutionality of a criminal statute may be raised at any time and is subject to de novo review. In re Omar M., 2012 IL App (1st) 100866, ¶ 45. There is a presumption that the statute is constitutional; therefore, the burden is on the party challenging the validity of the statute to demonstrate a clear constitutional violation. Id. ¶ 45 Though the State cannot make it illegal to possess a firearm in one's home for self defense, there is no current case law that prevents the State from enacting statutes regarding the possession of firearms by felons on public property. In fact, the Supreme Court recognized in Heller, that its determination on the constitutionality of the law at issue there was not meant to "cast doubt on longstanding prohibitions on the possession of firearms by felons." Heller, 554 U.S. at 626. ¶ 46 This court will abide by the now settled determination that the aggravated unlawful use of a weapon statute is constitutional. See People v. Mimes, 2011 IL App (1st) 082747, ¶ 82 (holding the challenged provisions of the aggravated unlawful use of a weapon statute are constitutional and the statute's "substantial and important goal is absolutely reasonable although arguably somewhat imperfect."). See also People v. Brisco, 2012 IL App (1st) 101612, ¶ 56 (holding, "we conclude that the statute is constitutionally permissible despite its restrictions on the right of felons to bear arms, as it is a valid exercise of the important governmental interest in protecting the health, safety and general welfare of its citizens."). The unlawful use of a weapon by a felon statute has also been determined constitutional by this court. People v. Jackson, 269 Ill. App. 3d 851 (1995) (holding the unlawful use of a weapon by a felon statute is constitutional and that it is constitutional to distinguish felons in the context of firearm possession.). As set forth below, defendant's conviction under the unlawful use of a weapon statute will be vacated under the one-act, one-crime doctrine, therefore it is unnecessary to consider its constitutionality at this juncture. ¶ 47 We find defendant's constitutional challenge to the statute fails, as the Supreme Court has explicitly recognized that certain classes of people may be disqualified from exercising their second amendment right and we chose to follow the well reasoned decisions of our colleagues noted above.
¶ 48 V. One-Act, One-Crime Doctrine
¶ 49 Defendant asserts because he was convicted of unlawful possession of a weapon by a felon under section 24.1-1.1 of the Code (720 ILCS 5/24-1-1.1 (West 2008)) and unlawful use of a weapon under section 24-1(a)(10) of the Code (720 ILCS 5/24-1(a)(10) (West 2008)), and both convictions are based on the same act of possessing a firearm, the less serious conviction under section 24-1(a)(10) should be vacated. ¶ 50 "Whether a defendant has been improperly convicted of multiple offenses based upon the same act and whether a charge encompasses another as a lesser-included offense are questions of law that this court reviews de novo." People v. Nunez, 236 Ill. 2d 488 (2010). The one-act, one-crime doctrine provides that a defendant may not be convicted of multiple crimes if they are based on precisely the same physical act. People v. Hardin, 2012 Il App (1st) 100682, ¶ 24. ¶ 51 The State concedes defendant's conviction for unlawful use of a weapon must be vacated under the one-act, one-crime doctrine. Defendant was convicted of two offenses based on the same, single physical act of possessing a handgun. Thus, the less serious offense of unlawful use of a weapon under section 24-1(a)(10) of the Code is vacated.
¶ 52 CONCLUSION
¶ 53 For the reasons stated, we affirm the judgment of the trial court, but vacate the conviction for the less serious offense of unlawful use of a weapon under section 24-1(a)(10) of the Code. Lastly, we correct the mittimus in case number 09 CR 11115 to reflect that the conviction under section 24-1(a)(10) of the Code (720 ILCS 5/24-1(a)(10)(West 2008)) has been vacated. ¶ 54 Affirmed in part; vacated in part; mittimus corrected.