People v. Carey

Full title: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CAREY…

Court: APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT SIXTH DIVISION

Date published: Mar 30, 2018

2018 Ill. App. 131944 (Ill. App. Ct. 2018)

Opinion

No. 1-13-1944

03-30-2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CAREY, Defendant-Appellant.

JUSTICE CUNNINGHAM delivered the judgment of the court.

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. 11 CR 3485 Honorable Matthew E. Coghlan, Judge Presiding. JUSTICE CUNNINGHAM delivered the judgment of the court.
Justices Connors and Harris concurred in the judgment.

ORDER

¶ 1 Held: Defendant's first degree felony murder conviction is affirmed. The trial court's finding of defendant's fitness to stand trial was not against the manifest weight of the evidence. The evidence was sufficient to prove the defendant's guilt of the underlying predicate felony. The 15-year firearm sentencing enhancement is affirmed, as no prejudice resulted from the State's alleged noncompliance with section 111-3(c-5) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2010)). ¶ 2 This appeal from the defendant's felony murder conviction and sentence has a long procedural history. In November 2015, this court entered a Rule 23 order affirming the defendant's conviction but striking his 15-year firearm sentencing enhancement. We withdrew that order after the defendant's petition for rehearing raised a new claim of error, regarding the specificity of the indictment's felony murder count. Based solely on that new issue, we reversed the defendant's conviction in August 2016, finding it unnecessary to address the other arguments advanced by the defendant. People v. Carey, 2016 IL App (1st) 131944. In January 2018, our supreme court reversed our decision and remanded the case to this court, directing us to address the defendant's remaining arguments. People v. Carey, 2018 IL 121371, ¶ 31. Accordingly, we now review the defendant's contentions that: (1) the trial court erred in finding him fit to stand trial; (2) the State failed to prove his guilt beyond a reasonable doubt; and (3) the 15-year firearm enhancement to his sentence should be stricken or vacated because the State failed to comply with section 111-3(c-5) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c-5) (West 2010)). For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 3 BACKGROUND

¶ 4 On the morning of January 28, 2011, the defendant and his brother, Jimmy Townsend, confronted two armored truck guards working for Garda Cash Logistics (Garda). Townsend was killed by gunshots fired by one of the guards. The defendant was shot in the head by the other guard, resulting in the loss of his right eye. The defendant has no memory of the incident. ¶ 5 The defendant was charged by indictment with four counts: first degree felony murder based on attempted armed robbery (count I)¹; attempted armed robbery while armed with a firearm (count II); and unlawful use or possession of a weapon by a felon based on his possession of a firearm (counts III and IV). The defendant was arraigned on all four counts. ¶ 6 Prior to trial, defense counsel requested a fitness examination. Eric Neu, a clinical psychologist, found the defendant fit to stand trial. A few months later, at the State's request, the court ordered a second fitness examination. Dr. Nishad Nadkarni, a forensic psychiatrist for the circuit court of Cook County, examined the defendant in June 2012, and issued a letter indicating that the defendant was competent to stand trial. Following defense counsel's submission of a psychology report from another clinician, a fitness hearing was held. ¶ 7 Dr. Nadkarni testified that when he interviewed the defendant, he found him to be "fully oriented" and "alert," notwithstanding the loss of his right eye. The defendant showed no signs of cognitive or psychiatric impairment, and had no trouble following his questions. Dr. Nadkarni testified that the defendant demonstrated "good direction and logic and showed at least on a cursory gross level of the testing that [defendant's] memory and ability to form new memories was just fine." The defendant indicated his awareness that he was accused of attempted robbery, and understood that Jimmy Townsend had been killed. Dr. Nadkarni said the defendant reported no problems working with his attorney or reviewing documents with her to reconstruct the details of the incident. ¶ 8 Dr. Nadkarni testified that the defendant's amnesia was "not a bar for fitness from a medical perspective." He believed that defendant "ha[d] the capacity to form new memories [and] to be able to sit down and rationally and logically discuss information that's being presented to him by the State and by the defense." In Dr. Nadkarni's opinion, even if the defendant never recovered his memory of the shooting, he was able to create new memories of the incident through external data, by reviewing police records, working with his attorney, and talking with his family. Dr. Nadkarni concluded that while it was "highly unlikely that [defendant] would be able to precisely remember what happened," he was nonetheless capable of "assist[ing] his counsel in his defense." ¶ 9 Dr. Robert Louis Heilbronner, a clinical neuropsychologist, testified at the fitness hearing as the defense expert. He interviewed the defendant and conducted two days of neuropsychological testing. He found that the defendant had no memory of the shooting incident or any events during the preceding week. Like Dr. Nadkarni, Dr. Heilbronner believed that the defendant understood his role in the adversarial process, as well as that of the judge and the prosecutor. He found that the defendant was willing and able to discuss his defense with his attorney. ¶ 10 Dr. Heilbronner testified that the defendant's gunshot wound had caused "a significant memory impairment." He concluded that although the defendant "certainly possesses the ability to learn and remember things *** it would take him a lot longer and he would remember far less information tha[n] he would have before." While Dr. Heilbronner acknowledged that defendant was "competent" for purposes of "understanding the process of trial," he nonetheless opined that the defendant was not fit to stand trial "because of the profound impairment in his ability to recollect and relate occurrences." On cross-examination, Dr. Heilbronner agreed that the defendant was capable of collaborating with his attorney, reviewing documentation, and discussing strategies for his defense. ¶ 11 Following the hearing, the trial court determined that defendant was fit to stand trial. The trial court acknowledged the defendant suffered "an impairment as to his ability to recollect" the events surrounding the incident. Nevertheless, based on the "totality of the evidence," the court concluded that the State established the defendant's fitness to stand trial. ¶ 12 Prior to the trial, the State moved in limine to prohibit defense counsel from arguing that the derringer handgun recovered from the defendant at the crime scene must be "operable" in order to qualify as a "firearm" under the Firearm Owners Identification Act (FOID Act) (430 ILCS 54/1.1 (West 2010)). During the January 29, 2013 hearing on that motion, the State remarked that "The attempt armed robbery section that is the predicate for the felony murder is [section] 18-2(a)(2), which requires proof of a firearm, not a dangerous weapon. It requires us to prove [a] firearm." The prosecution indicated that it intended to prove that defendant "was armed with a *** handgun [that] was sufficient to qualify as a quote-unquote firearm within the meaning of Section 1.1 of the FOID Act, despite the Defendant's contention that it was inoperable." The prosecutor's argument at the hearing also referenced the State's intent to seek a firearm sentencing enhancement:

"THE COURT: Attempt armed robbery with a bludgeon could be defined as a forcible felony and so felony murder is when the death occurs during the course of a forcible felony.

[STATE'S ATTORNEY]: Correct. Except that the Defendant is subject to enhancement if the jury finds he was armed with a firearm.

THE COURT: So you want the firearm because -- for the enhancement, not just the felony murder won't lie based on the armed robbery or attempt armed robbery based on a bludgeon.

[STATE'S ATTORNEY]: Correct. ***"

¶ 13 The court granted the State's motion, ruling that the defense was precluded from arguing that the gun was not a "firearm." However, the court indicated that it would permit the defendant to argue that the handgun fell within an exception to the FOID Act's definition of a "firearm." ¶ 14 Also on January 29, 2013, immediately before jury selection, the State moved for entry of a nolle prosequi on the charges of attempted armed robbery and unlawful use or possession of a weapon by a felon contained in counts II, III, and IV. The motion was granted, and the defendant proceeded to jury trial solely on the charge of felony murder stated in count I. ¶ 15 At trial, the State presented eyewitnesses to the confrontation on the morning of January 28, 2011, including the two security guards, Julio Rodriguez and Derrick Beckwith. Rodriguez testified that he and Beckwith were employed by Garda, a company specializing in the transportation of currency. On the day of the incident, Beckwith drove an armored truck, while Rodriguez was responsible for retrieving the cash receipts and securing them in the truck. Both guards were dressed in Garda uniforms and each carried a firearm. ¶ 16 Around 9:40 that morning, the two guards arrived in the armored truck in front of the Family Dollar store on Chicago Avenue and Homan Avenue. Rodriguez exited the armored truck and entered the store. The store manager opened the safe and gave Rodriguez cash deposits, which Rodriguez placed into a bag. Rodriguez exited the store and headed back to the truck. ¶ 17 Rodriguez noticed "feet running real fast towards [him]" on his left side, and turned to see a man in a camouflage jacket, later revealed to be Jimmy Townsend, rapidly approach him while wielding an object that appeared to be a "sawed-off shotgun." Townsend told Rodriguez "Don't move, mother*****r" and pointed the object at Rodriguez's face. ¶ 18 Rodriguez became aware of a second person, when he turned to his right and saw the defendant "running toward me fast as he could." He recalled that Townsend "signaled out the second guy [defendant]" by moving his head, and that Townsend "told the other guy [defendant] to kill me." ¶ 19 Rodriguez raised his gun and shot Townsend multiple times. According to Rodriguez, Townsend then "threw the sawed-off shotgun" to defendant before Townsend "walked a few feet and fell down to the ground." According to Rodriguez, the defendant caught the object and swung it at Rodriguez's head. Rodriguez dodged the blow and tried to hit the defendant, who put Rodriguez in a chokehold from behind. Rodriguez testified that the defendant "had his left arm around my neck squeezing very tight." As Rodriguez struggled with the defendant, the money bag fell to the ground. ¶ 20 Rodriguez escaped from the defendant's grip, and ran back towards the armored truck. As Rodriguez was reloading his gun, he heard gunshots coming from the truck, and he saw that the defendant had been shot. Rodriguez retrieved the money bag from the ground, and then returned to the truck. Beckwith then called the police. ¶ 21 During cross-examination, Rodriguez acknowledged that he later learned that the object held by Townsend was not, in fact, a shotgun or any other type of firearm. However, he stated that he believed it to be a sawed-off shotgun at the time of the incident. Rodriguez admitted that he did not see the defendant attempt to grab the money bag during the incident. ¶ 22 The State also called Beckwith. He testified that he had parked the armored truck in front of the Family Dollar store and stayed in the truck while Rodriguez went inside to collect cash receipts. When he saw Rodriguez exit the store, he moved to unlock the passenger's side door to allow Rodriguez back in the truck. He heard someone shout "don't move, motherf****r." Beckwith looked out the passenger's side window, heard four gunshots, and saw Townsend lying on the ground. He then saw Rodriguez struggling with the defendant. At that point, Beckwith opened the passenger's side door and drew his pistol. As soon as Rodriguez escaped, Beckwith fired four shots at the defendant, who fell to the ground. Beckwith testified that the defendant had been "holding a small handgun" pointed in Beckwith's direction. After Rodriguez retrieved the money bag and entered the truck, Beckwith called the police. Beckwith identified People's Exhibit 9 as a photograph of the handgun that the defendant pointed at him. ¶ 23 Michael Burton testified that, at the time of the incident, he was waiting for a bus across the street from the Family Dollar store. He saw Rodriguez get out of an armored truck and enter the store. After Rodriguez exited the store, a male approached and wrapped his arm around Rodriguez's neck. Burton saw another "male with a shotgun, that looked to me like a shotgun in [Rodriguez's] face." Burton testified that the male who had Rodriguez in a choke hold was carrying what appeared to be "a handgun." ¶ 24 Burton saw Rodriguez escape from the man who had him a choke hold. He then saw "the other guard inside the truck kick[] the door open and start[] shooting." He observed that the man with the handgun "was trying to run, to get away, with the gun pointed" at Beckwith. Burton heard more shots, and the man with the handgun "fell to the floor and was holding his eye in his hand." On cross-examination, Burton clarified that he first saw the man with the shotgun pointing it at Rodriguez. After the man with the shotgun was shot, the "other guy grabbed [the guard] from behind" and they were "wrestling." ¶ 25 Carl Robinson testified that he was an employee of a store directly west of the Family Dollar store. At the time of the incident, he was taking out the trash in the alley located between the stores. Robinson recalled seeing the armored car nearby. He saw a male wearing camouflage wrestling with a "security guard." Robinson heard shots, and retreated back to the alley, after which he heard more gunshots. Later, when police arrived, Robinson noticed that the man with camouflage was on the ground and was not moving, and that the defendant was severely wounded. ¶ 26 The State also called Victor Cabrera, an assistant store manager of the Family Dollar store. Cabrera testified that he was inside the store when Rodriguez walked in to collect cash receipts. Through the store windows, Cabrera saw Rodriguez leave the store and walk to his truck. Cabrera saw two men approach Rodriguez, and heard Townsend yell to the defendant, "shoot him, shoot him." Cabrera heard gunshots and saw Townsend fall to the ground. Cabrera next saw Rodriguez struggling with defendant. When Rodriguez escaped, Beckwith opened the truck door and fired his gun at defendant, who collapsed. As the defendant was lying on the ground, Cabrera noticed a "smaller handgun" in the defendant's hand. Cabrera testified that he believed defendant was holding the gun depicted in People's Exhibit 9. ¶ 27 Chicago police officer Kaczorowski testified that he was on patrol when he heard a report of a shooting and went to the scene. There, Officer Kaczorowski observed paramedics "remove[] a gun out of [defendant's] pocket or his waist area" and place it on the ground. Officer Kaczorowski moved the handgun with his foot so that it was out of defendant's reach. He identified People's Exhibit 9 as a photograph of the gun recovered from the defendant. ¶ 28 Larry Goodson, a forensic investigator, testified that his team examined the object held by Townsend and discovered that it was not, in fact, a sawed-off shotgun. Instead, it was a homemade object crudely designed to resemble a shotgun; it consisted of two metal pipes fastened to a piece of wood with duct tape, with what appeared to be a brown rag wrapped across one of the ends. ¶ 29 Forensic scientist Elizabeth Haley testified as the State's expert in firearm identification. She testified that the gun recovered from the defendant was a double-barreled "[d]erringer .22 caliber firearm." When Haley attempted to load ammunition into the derringer, she discovered an obstruction in the top barrel, which prevented her from chambering a round. There was no such obstruction in the lower barrel. She agreed that the firearm appeared to have "all of its essential parts" and that it "appeared that it would test fire." However, when she attempted to fire the weapon, the cartridge did not discharge. Upon further investigation, Haley learned that the firing pin hit the cartridge, but "not with enough force in order to set out the priming material." Haley concluded that the gun was inoperable in its current state. Haley agreed when the prosecutor asked her if the derringer was a "firearm" and she agreed that it was "designed to fire ammunition." ¶ 30 Following the close of the State's evidence, the trial court held a jury instructions conference outside the presence of the jury. At that time, the State informed the court and defense counsel that it was seeking the firearm sentencing enhancement and tendered a corresponding firearm instruction. Defense counsel objected to the firearm instruction, arguing that the defendant had no prior notice of the State's intent to seek a firearm enhancement. The court allowed the instruction over the defense objection, noting that "the Defense certainly is on notice. Up until the first day of trial [the defendant] stood charged with the attempt armed robbery with a firearm." ¶ 31 Following the jury instruction conference, the defendant testified on his own behalf before the jury. He testified that Jimmy Townsend was his older brother, and that in that months preceding the incident he saw Townsend "[f]ive days a week because we worked together" doing "rehab" for a real estate firm. The defendant testified that Townsend had been feeling depressed for "many years" and that sometime around Thanksgiving 2010, Townsend told him that he wanted to "end his life." He recalled that the topic of suicide came up "on numerous occasions" in conversations with his brother in November and December 2010. Asked if Townsend told him how he would commit suicide, the defendant testified that his brother "wanted to go out in a hail of bullets." The defendant did not remember anything from the date of the shooting incident. ¶ 32 The defendant admitted that he had seen and held the derringer handgun before the date of the incident, testifying "my grandmother had it in her purse." He admitted that the derringer was a "gun" that took "real bullets." He also recalled having seen the makeshift sawed-off shotgun prior to the incident, in the van that he and Townsend drove to work. The defendant also acknowledged that it was possible that he and Townsend were trying to rob the armored truck on the date in question. ¶ 33 Following closing arguments, the trial court instructed the jury that it would receive verdict forms on the charge of first degree murder. The court additionally instructed the jury that, if it found the defendant guilty of first degree murder, it should proceed to decide whether the State had proved beyond a reasonable doubt that the defendant was armed with a firearm during the commission of the murder. The jury received corresponding verdict forms to indicate its finding on the firearm issue. ¶ 34 The jury subsequently found the defendant guilty of first degree felony murder. The jury also signed the verdict form indicating its finding that "during the commission of the offense of first degree murder the defendant was armed with a firearm." ¶ 35 After the defendant's motion for a new trial was denied, the court sentenced him to 25 years' imprisonment for first degree felony murder, with an additional 15-year term based on his possession of a firearm. After the defendant's motion for reconsideration of the sentence was denied, he timely appealed on June 5, 2013. ¶ 36 This court filed our original decision in this appeal on November 9, 2015, in which we affirmed the defendant's conviction for felony murder but vacated the 15-year sentencing enhancement. Following our decision, both parties filed petitions for rehearing. The defendant's petition for rehearing argued, for the first time, that his conviction must be vacated because the indictment did not specify which version of attempt armed robbery the State sought to use as the predicate felony to support the felony murder charge in count I. We ordered supplemental briefing on that issue, after which we granted both parties' petitions for rehearing and withdrew our original decision. ¶ 37 On August 22, 2016, we issued an opinion that reversed the defendant's conviction, based solely on the new issue raised in the defendant's petition for rehearing. People v. Carey, 2016 IL App (1st) 131944. We found that the defendant was prejudiced because count I—the only count upon which he was tried—failed to specify which version of the attempt armed robbery offense served as the predicate offense for the felony murder charge. That is, count I referenced "attempt armed robbery" but did not specify whether it referred to the form of armed robbery committed "with a dangerous weapon other than a firearm" (720 ILCS 5/18-2(a)(1) (West 2010)), or armed robbery "with a firearm" (720 ILCS 5/18-2(a)(2) (West 2010)). We reasoned that "[b]ecause the indictment lacked any reference to either subsection 18-2(a)(1) or subsection 18-2(a)(2), the State was effectively free to proceed at trial under either theory." (Emphasis in original.) Carey, 2016 IL App (1st) 131944, ¶ 33. We concluded that the "defendant was prejudiced by the State leaving open its ability to convict him using either of the attempt armed robbery offenses as the predicate offense for felony murder." Id. ¶ 34. We reversed and remanded on that basis, without addressing the defendant's remaining arguments. ¶ 38 On January 19, 2018, our supreme court reversed and remanded the case to our court. People v. Carey, 2018 IL 121371. Our supreme court noted that, when a charging instrument is attacked for the first time on appeal, it "is sufficient if it notified the defendant of the precise offense charged with enough specificity to allow the defendant to (1) prepare his or her defense and (2) plead a resulting conviction as a bar to future prosecution arising out of the same conduct. [Citation.]" Id. ¶ 22. "If the reviewing court cannot say that the charging instrument error inhibited the defendant in the preparation of his or her defense, then the court cannot conclude that the defendant suffered any prejudice." Id. (citing People v. Cuadrado, 214 Ill. 2d 79, 88 (2005)). ¶ 39 Our supreme court acknowledged that the felony murder count, count I, did not specify the form of attempt armed robbery that would serve as the predicate felony. However, the supreme court emphasized that "all counts of a multi-count indictment should be read as a whole and that elements missing from one count may be supplied by another count." Id. ¶ 25 (quoting People v. Morris, 135 Ill. 2d 540, 544 (1990)). Our supreme court noted that count II, attempted armed robbery, cited section 18-2(a)(2) of the Criminal Code and specifically alleged that the defendant used "a firearm," and that counts III and IV also alleged that defendant possessed "a firearm." Id. ¶ 26. Thus, the court held that "the indictment read as a whole, clearly informed defendant that the State intended to prove that he possessed a firearm." Id. Further, because "the entry of the nolle prosequi on counts II, III, and IV did not occur until just prior to jury selection and one day before the trial," "all four counts of the indictment *** were available to inform defendant of the charges against him while he prepared for trial." Id. ¶ 28. ¶ 40 Our supreme court further noted that "the fact that defendant possessed a 'firearm' at the time of the attack was addressed on multiple occasions prior to and during trial," including at the hearing on the State's motion in limine. Id. ¶ 29. The court found that the record "affirmatively demonstrates that defendant was aware that the charge of felony murder was predicated on attempt armed robbery with a firearm and his attorney presented a defense to that charge." Id. ¶ 30. Thus, our supreme court held that it "cannot say that the lack of specificity in the felony murder charge prejudiced defendant in preparing a defense." Id. Our supreme court thus reversed and remanded the case to our court to consider the defendant's remaining arguments, "challenging the sufficiency of the evidence against him[;] the ruling that he was fit to stand trial[;] and the determination that the State was entitled to seek the 15-year firearm sentencing enhancement." Id. ¶ 31.

1 Count I contains no allegation about a firearm, but it states that the defendant:

"committed the offense of FIRST DEGREE MURDER

in that HE, WITHOUT LAWFUL JUSTIFICATION, COMMITTED THE OFFENSE OF ATTEMPT ARMED ROBBERY, AND DURING THE COMMISSION OF THE OFFENSE, HE SET IN MOTION A CHAIN OF EVENTS THAT CAUSED THE DEATH OF JIMMY TOWNSEND IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 9-1(A)(3) OF THE ILLINOIS COMPILED STATUTES 1992 AS AMENDED *** [.]"

¶ 41 ANALYSIS

¶ 42 Pursuant to our supreme court's opinion, we now consider the defendant's arguments: (1) that the trial court improperly ruled him fit to stand trial; (2) that his felony murder conviction must be reversed because the evidence was insufficient to prove his guilt of the underlying felony of attempt armed robbery; and (3) that the 15-year firearm sentencing enhancement should be stricken because the State failed to provide the requisite notice of its intent to seek that enhancement. ¶ 43 We first address the defendant's challenge to the trial court's determination that he was fit to stand trial. The defendant claims that his "complete amnesia" surrounding the shooting incident "unequivocally made him unfit for trial as he was without the ability to assist in his defense." He notes that both the State's expert, Dr. Nahkarni, and the defense expert, Dr. Helbronner, agreed that he had no memory of the incident on January 28, 2011, or of events for 15 at least one week before the incident. He contends that his amnesia left him unable to assist in his defense, as he "could offer no insight to (a) his brother's depressed and suicidal state of mind, or (b) any explanation why he would be struggling with" Rodriguez. He asserts that due to his memory loss he was "unable to communicate anything meaningful to assist his trial attorney in his defense and starkly provided nothing to the jury regarding his defense." He argues that the trial court ignored the experts' findings as to his memory loss, and that its fitness decision was against the manifest weight of the evidence. ¶ 44 A defendant is presumed to be fit to stand trial (725 ILCS 5/104-10 (West 2010)), and will be found unfit only if he is unable to understand the nature and purpose of the proceedings against him, or is unable to assist in his own defense. People v. Griffin, 178 Ill. 2d 65, 79 (1997). Where a bona fide doubt exists as to a defendant's fitness to stand trial, the defendant is entitled to a fitness hearing. Id. At the hearing, the State carries the burden of establishing the defendant's fitness by a preponderance of the evidence. 725 ILCS 5/104-11(c) (West 2010). ¶ 45 At the fitness hearing, the trial court may consider evidence related to: "(1) The defendant's knowledge and understanding of the charge, the proceedings, the consequences of a plea, judgment or sentence, and the functions of the participants in the trial process; (2) The defendant's ability to observe, recollect and relate occurrences, especially those concerning the incidents alleged, and to communicate with counsel; (3) The defendant's social behavior and abilities; orientation as to time and place, recognition of persons, places and 16 things; and performance of motor processes." 725 ILCS 5/104-16(b) (West 2010). ¶ 46 It is the trial court's function to assess the credibility and weight to be given to any expert testimony. See People v. Coleman, 168 Ill. 2d 509, 525 (1995). Whether a defendant is fit or not is a matter to be judged based on the totality of the circumstances. People v. Stahl, 2014 IL 115804, ¶ 26. Further, our supreme court has held that a defendant's "amnesia as to the events surrounding the crime does not per se render a defendant unfit to stand trial," but "the fact that a defendant cannot recollect the incident at issue is just one of the circumstances that may be considered in determining a defendant's fitness." Id. ¶ 39. On review, the trial court's determination of fitness will not be disturbed unless it is against the manifest weight of the evidence. Id. ¶ 40 (citing People v. Haynes, 174 Ill. 2d 204, 226 (1996)). ¶ 47 Notwithstanding the evidence of the defendant's amnesia, we cannot say that the trial court's finding of fitness to stand trial was against the manifest weight of the evidence. The defendant's amnesia was a relevant consideration but was not necessarily dispositive. The court could rely upon the experts' testimony that, apart from his memory impairment for a specific time period, the defendant understood the charges against him, the adversarial process, and the roles of the different parties in a courtroom. The experts similarly agreed that he could form new memories, collaborate with his attorney, and discuss his defense strategy. Although Dr. Heilbronner opined that defendant was unfit to testify in his own behalf, that opinion did not require the court to conclude that the defendant could not otherwise assist in his defense. Based on the totality of the circumstances, the court's finding of fitness was not against the manifest weight of the evidence. We thus reject the defendant's claim of error on that basis. ¶ 48 We turn to the defendant's contention that his felony murder conviction must be reversed 17 because the State's evidence was insufficient to prove the predicate offense, attempt armed robbery. Specifically, the defendant contends that the State failed to prove (1) that he acted with specific intent to commit a robbery, (2) that he "took a substantial step toward the commission of a robbery," and (3) that he was armed with a "firearm" during the offense. ¶ 49 A person commits first degree felony murder if, "in performing the acts which cause the death: *** he is attempting or committing a forcible felony other than second degree murder." 720 ILCS 5/9-1(a)(3) (West 2010). Under the "proximate cause theory" of felony murder, a felon is liable for deaths "proximately resulting from the unlawful activity" that are a direct and foreseeable consequence of his actions. People v. Lowery, 178 Ill. 2d 462, 465 (1997). The defendant's liability extends to killings committed by third parties that are the foreseeable consequence of the defendant's acts during the commission of a felony. Id. at 469. The State need not show that the defendant contemplated that his actions would result in death, but need only prove that the defendant intended to commit the underlying felony. People v. Hudson, 354 Ill. App. 3d 648, 655 (2004) (finding "it was sufficient for defendant to have contemplated that his actions would meet with resistance and that a struggle would ensue."). ¶ 50 All forms of robbery are considered to be forcible felonies. 720 ILCS 5/2-8 (West 2010). A person commits robbery "when he or she knowingly takes property *** from the person or presence of another by the use of force or by threatening the imminent use of force." 720 ILCS 5/18-1 (West 2010). Armed robbery occurs when the person committing a robbery is carrying, on or about his person, or is otherwise armed with, a "firearm" 720 ILCS 5/18-2(a (2) (West 2010) or "a dangerous weapon other than a firearm." 720 ILCS 5/18-2(a)(1) (West 2010). Attempt armed robbery occurs when the person has "intent to commit [armed robbery]" and "does any act that constitutes a substantial step towards the commission of that offense." 720 18 ILCS 5/8-4(a) (West 2010). ¶ 51 A conviction for felony murder cannot stand if the record lacks sufficient evidence to establish the defendant's guilt of the predicate offense. People v. Shaw, 186 Ill. 2d 301, 325 (1998). When the sufficiency of the evidence is challenged on appeal, our function is not to retry the defendant or substitute our judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Instead, we must determine " 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (Emphasis in original.) People v. Beauchamp, 241 Ill. 2d 1, 8 (2011) (quoting People v. Collins, 106 Ill. 2d 237, 261 (1985)). We will not reverse a conviction unless the evidence is so "improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt." (Internal quotation marks omitted.) Id. "A conviction may be sustained on circumstantial evidence, provided the elements of the crime have been proven beyond a reasonable doubt." Sutherland, 223 Ill. 2d at 243. Furthermore, we must "allow all reasonable inferences in favor of the prosecution." People v. Cunningham, 212 Ill. 2d 274, 280 (2004). ¶ 52 With these principles in mind, we first address the defendant's claim that there was insufficient evidence of his specific intent to commit a robbery. He points to the lack of testimony that he or Townsend made a verbal demand for money or attempted to grab the money bag. Consequently, he argues, there exists a reasonable doubt as to his intent to rob. ¶ 53 We disagree. Sufficient proof of intent to rob does not require evidence of a specific demand for money or property. See People v. Murff, 29 Ill. 2d 303, 305 (1963); People v. Leahy, 295 Ill. 588, 593 (1920); People v. Armour, 15 Ill. App. 3d 529, 539 (1973); People v. Turner, 108 Ill. App. 2d 132, 138 (1969). Rather, the requisite intent can be inferred from the 19 circumstantial evidence. People v. Terrell, 99 Ill. 2d 427, 433 (1984) (evidence that defendant "concealed himself in the weeds in close proximity to a service station, which was about to open, while in possession of a stocking mask and a fully loaded revolver" supported inference of intent to rob the service station); Turner, 108 Ill. App. 2d at 138 ("Proof of specific intent to rob is necessary, but competent circumstantial evidence may establish the requisite intent."). ¶ 54 Allowing reasonable inferences in favor of the prosecution, the jury in this case could certainly find that the defendant and his brother intended to commit a robbery. The nature and timing of the incident supported this finding. A number of witnesses testified that the defendant and his brother, Townsend, confronted a security guard, Rodriguez, at the very moment he carried a bag of cash deposits from a retail store to an armored truck parked just outside the store. Certainly, the jury could infer a plan to target the money being transported. This is further supported by the evidence that Townsend threatened Rodriguez with an object that looked like a sawed-off shotgun, and that the defendant brandished the derringer handgun. The jury could reasonably infer that these weapons were intended to intimidate the security guards into relinquishing the cash just retrieved from the store. Moreover, the jury was not required to accept the defendant's suggestion that he put Rodriguez in a chokehold "so that [Rodriguez] would stop shooting at his brother." Rather, the jury could reasonably infer that the defendant struggled with Rodriguez in an attempt to take the money bag from him. ¶ 55 We note the defendant's reliance on People v. Thomas, 127 Ill. App. 2d 134 (1970), which reversed a felony murder conviction, but we find that case distinguishable. In Thomas, the defendant stood at the entrance to a tavern while his friend proceeded to the back of the room. Id. at 136. The defendant's friend walked up to the tavern's bartender and shot him, after which he told defendant " 'I got him.' " Id. Both men jumped into a car and sped off. Id. The State 20 also introduced evidence that "both men had entered a nearby store a few minutes before the shooting where [defendant's friend] had displayed a weapon." Id. at 139. However, there was no evidence that either man demanded money at the store or at the tavern. On appeal from defendant's felony murder conviction, the Thomas court held that there was no evidence that the defendant's friend intended to commit robbery, resulting in reversal of the murder conviction. Id. at 140. ¶ 56 Here, unlike Thomas, the record contains ample evidence to support the jury's finding that the defendant and Townsend intended to take the bag of cash that Rodriguez was transporting, by force or threat of force. The evidence suggests a planned ambush against a conspicuous target — a security guard transporting a bag of cash to an armored truck. The jury could infer that the defendant and Townsend waited to approach Rodriguez until he walked out of the store with a bag of money. Although there was no explicit money demand, Townsend threatened Rodriguez with a fake sawed-off shotgun. Even after Townsend was shot, the defendant struggled with Rodriguez, with the money bag in close proximity. Viewing the evidence in the light most favorable to the prosecution, we find that a reasonable trier of fact could have easily concluded that defendant possessed the intent to commit armed robbery. ¶ 57 We similarly reject the defendant's claim that there was insufficient evidence that he took a substantial step towards the commission of an armed robbery. He argues that the State could not prove a substantial step "[w]ithout a money demand, any declaration of a robbery, or any attempt to reach for the money bag." He again relies on Thomas, which rejected the State's claim that the defendant committed a "substantial step toward the commission of a robbery" where "[n]o intention to commit robbery was orally communicated to either alleged victim *** nor was any money or property demanded or taken." Id. at 139. 21 ¶ 58 A substantial step towards the commission of a crime is taken when the defendant has all of the materials required to complete the crime and is present at or near the location of the intended criminal act. See People v. Smith, 148 Ill. 2d 454, 460 (1992); People v. Terrell, 99 Ill. 2d 427, 434 (1984). A substantial step puts the defendant in a "dangerous proximity to success" in committing the intended crime. (Internal quotation marks omitted.) People v. Morissette, 225 Ill. App. 3d 1044, 1046 (1992). "Precisely what is a substantial step must be determined by evaluating the facts and circumstances of each particular case." Smith, 148 Ill. 2d at 458. ¶ 59 Despite the lack of an explicit money demand or an attempt to grab the money bag, there was ample evidence from which the jury could find that the defendant took one (or more) substantial steps toward the commission of armed robbery. As discussed with respect to the evidence of intent, the jury could find that the defendant and Townsend ambushed a guard carrying a bag of cash, while brandishing objects that appeared to be functional firearms. Furthermore, the jury was free to reject the defendant's suggestion that he struggled with Rodriguez merely to protect his brother, Townsend. Viewing the evidence in the light most favorable to the State, the jury could reasonably infer that the defendant struggled with Rodriguez in furtherance of the robbery attempt. We thus conclude that the State presented sufficient evidence that the defendant took a substantial step in connection with the attempted armed robbery. ¶ 60 We next address the defendant's contention that the State failed to prove that the defendant was armed with a "firearm" during the incident, within the statutory definition of that term under the Firearm Owners Identification Card Act (FOID Act). 430 ILCS 65/1.1 (West 2010). Specifically, he claims that because the State failed to prove he was "armed with an item capable of functioning as [a] firearm, the State failed to prove the precise offense for the instant 22 felony murder prosecution." He argues that the derringer did not "possess the essential characteristics of a firearm" because it was inoperable at the time of the incident. ¶ 61 The State proceeded under the theory of attempt armed robbery committed with a "firearm." 720 ILCS 5/18-2(a)(2) (West 2010). Under the Criminal Code, " 'firearm' has the meaning ascribed to it in Section 1.1 of the [FOID] Act." 720 ILCS 5/2-7.5 (West 2012). The FOID Act defines a "firearm" to mean, subject to certain exceptions not applicable in this case, "any device, by whatever name known, which is designed to expel a projectile by the action of an explosion, expansion of gas or escape of gas." (Emphasis added.) 430 ILCS 65/1.1 (West 2010). Where the language of a statute is clear and unambiguous, we must apply it as written. People v. Perry, 224 Ill. 2d 312, 323 (2007). To the extent the defendant's claim presents a question of statutory interpretation, de novo review applies. People v. Williams, 393 Ill. App. 3d 286, 288 (2009). ¶ 62 The defendant suggests that the testimony of Haley, the State's firearms expert, "proved unequivocally that the current design of the object Carey possessed prevented its originally designed use (as a firearm)." Thus, he claims the derringer is not "designed" to fire ammunition and does not qualify as a "firearm." The defendant mischaracterizes the testimony of Haley, the State's firearms expert. Haley testified that the derringer was currently inoperable, but she explicitly testified that it was "designed" to operate as a standard firearm. ¶ 63 The plain language of the FOID Act indicates that an item must only be designed to expel a projectile; it does not require the gun to be capable of firing at the time of the offense. Further, this court has previously held that an inoperable gun can satisfy the FOID statutory definition of a "firearm." Williams, 393 Ill. App. 3d at 291. Whether a firearm in a state of disrepair can still 23 be said to be "designed" as a firearm due to loss of its essential characteristics is a question of fact for the trier of fact to determine. Id. ¶ 64 The State offered Haley's uncontradicted expert testimony that the derringer was designed to fire bullets. Moreover, the defendant admitted on cross-examination that the derringer was a real gun that used "real bullets." Based on that evidence, the trier of fact could reasonably find that the derringer handgun constituted a "firearm." Accordingly, we reject this challenge to the sufficiency of the State's evidence. ¶ 65 Lastly, we address the defendant's argument that the 15-year firearm enhancement to his sentence is void and should be struck because the State failed to notify him of its intent to seek that enhancement, in compliance with section 111-3(c-5) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(c-5) (West 2010)). He relies on the fact that "the charging murder count, Count I of the indictment, made no reference to a firearm." He argues that because he was not "notified in writing that the State sought at trial to enhance his sentence with a firearm sentencing enhancement *** the enhancement is void." ¶ 66 "A criminal defendant has a fundamental right to be informed of the nature and cause of criminal accusations made against him. [Citations.] In Illinois, this constitutional right is implemented by section 111-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-2 (West 2010)." Carey, 2018 IL 121371. ¶ 67 "The legislature enacted section 111-3(c-5) of the Code in response to the [United States] Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that whenever a fact other than a prior conviction is considered to enhance a penalty beyond the statutory maximum, that fact must be found to exist beyond a reasonable doubt by the trier of 24 fact. [Citation.]" People v. Mimes, 2014 IL App (1st) 082747-B, ¶ 26. Thus, section 111-3(c-5) provides, in relevant part, that: "if an alleged fact (other than the fact of a prior conviction) is not an element of an offense but is sought to be used to increase the range of penalties for the offense beyond the statutory maximum that could otherwise be imposed for the offense, the alleged fact must be included in the charging instrument or otherwise provided to the defendant through a written notification before trial, submitted to a trier of fact as an aggravating factor, and proved beyond a reasonable doubt." 725 ILCS 5/111-3(c-5) (West 2010). The State's compliance with section 111-3(c-5) is reviewed de novo. Mimes, 2014 IL App (1st) 082747-B, ¶ 26. ¶ 68 Significantly, whether a violation of this statute entitles the defendant to relief depends, in part, on when the challenge was raised. "The timing of a challenge to the sufficiency of an indictment is significant because it determines which standard must be applied in reviewing the sufficiency of the indictment on appeal." Id. ¶ 33. "An indictment challenged before trial must strictly comply with the pleading requirements of section 111-3. [Citation.] In contrast, when an indictment is attacked for the first time posttrial, a defendant must show that he was prejudiced in the preparation of his defense." Id. (citing People v. Davis, 217 Ill. 2d 472, 479 (2005)). This case falls somewhere in between a pretrial and posttrial challenge. During the pretrial hearing on the State's motion in limine, defense counsel acknowledged the State's intent to prove that defendant possessed a firearm, including as a sentencing enhancement, but at that time the defendant did not challenge the indictment itself. After trial commenced, during the 25 jury instruction conference, the defendant first argued that he was not given adequate notice of the State's intent to prove that he was armed with a firearm. ¶ 69 We find that this case is governed by People v. Cuadrado, in which our supreme court held that a midtrial challenge to an indictment requires a showing of prejudice for the defendant to obtain relief, unless there has been prosecutorial misconduct. 214 Ill. 2d 79, 87-88 (2005) (recognizing the "general requirement of prejudice when an indictment is challenged after the commencement of trial"). The defendant makes no allegations of prosecutorial misconduct in this case. Accordingly, for the defendant to successfully challenge the firearm sentencing enhancement, he must have been prejudiced in the preparation of his defense as a result of the State's failure to strictly comply with section 111-3(c-5). ¶ 70 Under the circumstances of this case, we conclude that, even assuming that the State failed to comply with section 111-3(c-5) of the Code, the defendant cannot demonstrate resulting prejudice. This conclusion is largely informed by our supreme court's discussion of prejudice under the same facts of this case, in the course of assessing the defendant's claim that the indictment was defective because count I did not specify whether the predicate offense was attempt armed robbery "with a firearm." Carey, 2018 IL 121371, ¶¶ 24-30. Analyzing the same record, the supreme court concluded that no prejudice resulted from count I's failure to specify the exact predicate offense, as the defendant was made aware that the State sought to prove his possession or use of a firearm. Since counts II through IV referenced use of a firearm, the indictment, "read as a whole, clearly informed defendant that the State intended to prove that he possessed a firearm at the time of the shooting." Id. ¶ 26. Further, because the State did not enter a nolle prosequi on those counts until "one day before the trial commenced[,]" "all four counts *** were available to inform defendant of the charges against him while he prepared for 26 trial" Id. ¶ 28. The fact that the indictment, as a whole, notified the defendant of the State's intent to prove his use of a firearm, weighs against a finding of prejudice with respect to the State's failure to specify that it would seek a firearm sentencing enhancement. ¶ 71 Further, as noted by our supreme court, "the fact that defendant possessed a 'firearm' at the time of the attack was addressed on multiple occasions" before and during trial, including at the hearing on the State's motion in limine. Id. ¶ 29. At that hearing, the prosecutor stated "we will be proving that the Defendant was armed with a firearm from a legal sense." At the same time, the prosecutor specifically referenced a firearm sentencing enhancement, and this was acknowledged by defense counsel, who said: "I think I also heard [the prosecutor] say that he is going to ask that the jury find that this crime was committed with a firearm. And then if *** they convict him, he's going to ask for an enhanced sentence on the homicide because of the possession of a firearm." Thus, as held by our supreme court, "[t]he record *** affirmatively demonstrates that defendant was aware that the charge of felony murder was predicated [upon] attempted armed robbery with a firearm." (Emphasis added.) Id. ¶ 30. In other words, regardless of any violation of section 111-3(c-5), the defendant cannot demonstrate that he lacked actual notice of the State's intent to prove his possession of a firearm at trial. ¶ 72 Moreover, the defendant does not suggest what he would have done differently to defend this case, had the State strictly complied with section 111-3(c-5) with respect to the firearm enhancement. As noted by our supreme court, defense counsel cross-examined the State's eyewitnesses "as to whether defendant was seen holding the gun," "cross-examined the State's firearm expert regarding the conclusion that the derringer was inoperable" and, in closing argument, "emphasized the fact that the derringer could not be fired and highlighted the conflicting testimony on whether defendant was holding the gun at the time of the attack." 27 Carey, 2018 IL 121371, ¶ 29. Just as our supreme court noted that the defendant did not identify "what other actions he could have taken if the allegations in count I had particularly referenced the use or possession of a firearm," id. ¶ 30, we are not convinced that he could have asserted a more effective defense, had the State strictly complied with section 111-3(c-5). ¶ 73 For the same reasons that our supreme court found no prejudice resulting from count I's failure to specify that the felony murder charge was based on attempt armed robbery with a "firearm," we cannot find prejudice resulting from any failure to provide written notice in compliance with section 111-3(c-5), with respect to the firearm enhancement. Thus, even if the State violated that provision of the Code, the lack of resulting prejudice means that the defendant is not entitled to the relief he seeks. Accordingly, we reject the defendant's challenge to the 15-year firearm sentencing enhancement. ¶ 74 For the foregoing reasons, we affirm the defendant's conviction and sentence. ¶ 75 Affirmed.