SECOND DIVISION August 2, 2016

No. 1-15-2137 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 14 CR 7206 ) MICHAEL OLIVIERI, ) Honorable ) Timothy J. Chambers, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Neville concurred in the judgment and opinion.

OPINION

¶1 Defendant Michael Olivieri was convicted of reckless discharge of a firearm (720 ILCS

5/24-1.5(a) (West 2012)) and sentenced to 24 months’ probation. On appeal, Olivieri challenges

the sufficiency of the evidence to sustain his conviction. We reverse the conviction on the basis

of insufficient evidence to support Olivieri’s guilt, beyond a reasonable doubt, of reckless

discharge of a firearm.

¶2 Background

¶3 Olivieri was arrested and charged with discharging a gun in a reckless manner, which

endangered the bodily safety of the woman who resided in the apartment next door to Olivieri’s

apartment. 1-15-2137

¶4 At the bench trial, the neighbor, Hilary Burich, testified that she shared a kitchen wall

with Olivieri. Burich was sleeping when she woke up startled by a loud noise at 1 a.m. on April

9, 2014. She was not sure what the noise was and did not think anything of it. She eventually

went back to sleep. At 7 a.m., when Burich went into her kitchen, she noticed shattered tile on

the ground and found a bullet, which she did not realize was a bullet at the time, in the middle of

her kitchen floor. There was a hole right above her sink. She figured a pipe had burst or

something had flown through her wall, but was not sure. She also found a note from Olivieri

under her door asking her to call. The date on the note was April 9.

¶5 Burich called Olivieri and left him a message. When he returned her call, Burich told him

what she saw and wanted to make sure he was okay. He then began to speak, but she could not

understand him. He sounded confused, and she had no idea what he was saying. She told him to

let her know if he knew anything else, hung up, and wrote him an e-mail.

¶6 In her e-mail, Burich informed Olivieri that there were some major issues with her

kitchen sink and their common wall. She attached photographs of the damage to her wall. She

wrote that it looked as if something “completely shot through.” She mentioned that she had heard

a really loud noise in the night and hoped it was the building’s issue. She asked Olivieri if he had

any damage to his side.

¶7 Olivieri sent Burich an e-mail on April 10, explaining that he recently received his

Firearm Owner’s Identification (FOID) card and concealed-carry permit. He further stated:

“The bad news was that the noise that you heard was me accidentally discharging

a pistol through sheer lack of not concentrating and it obviously created a hole in my

wall and instant panic in me. I looked in your peephole and saw it was dark with no

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figures moving. I did the same in looking over your balcony. I did not know if it went

under the side of your wall or was stopped by plumbing. Obviously looking at your

pictures it did go through.

It was pure negligence and lack of concentration on my part and you can rest

assured that police took away the two cards and privileges and pistol. So the next point

is please submit any costs to me that will be incurred for redesign and repair of your

place. I am terribly embarrassed and, again, apologize sincerely especially after having

training for safe use of a pistol for a year.

I didn’t sleep a wink last night thinking maybe I should have knocked on your

door, but it was late and thought you were likely sleeping or traveling.”

¶8 Before Burich received Olivieri’s e-mail, the building management came to her

apartment, told her the metal piece on her floor was a bullet and not from a pipe, and called the

police.

¶9 Chicago police officer Cazares testified that at 9 a.m. on April 9, he and his partner

responded to a call. He spoke with Burich, and she pointed out a bullet hole in her wall above the

kitchen sink. He saw the bullet on the kitchen floor. Burich also showed him the note left by

Olivieri under her door.

¶ 10 The officers then went to Olivieri’s apartment. Olivieri told them that he accidentally shot

his gun and a bullet went through his wall into Burich’s wall. Olivieri showed the officers where

the bullet went through the wall above his kitchen counter. The officers inventoried the gun, as

well as eight additional unloaded weapons. Officer Cazares testified that Olivieri’s apartment

was unkempt, he seemed disheveled, and he was not making much sense. Officer Cazares took

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Olivieri into protective custody because he believed Olivieri needed a psychiatric evaluation.

Olivieri was transported to the hospital. Officer Cazares had no further interaction with Olivieri.

¶ 11 Edward Oziminski testified that he was an Illinois concealed-carry instructor. Oziminski

taught a total of 16 hours of concealed-carry classes to Olivieri on January 25 and February 2,

2014. Oziminski explained that the State required 16 hours of training. During the classes, he

taught basic handgun safety and handling. Oziminski testified that he taught and repeated a

number of times the basic safety rules.

¶ 12 Oziminski testified that if a firearm was lying on his kitchen counter with the hammer

back, he would pick it up, keep it pointed in a safe direction, decock the firearm properly, and

open the cylinder to see if it was loaded. He always assumes a firearm to be loaded and taught

that in his classes. He instructed Olivieri on how to safely decock a revolver.

¶ 13 Oziminski further testified that pointing a gun at the wall in a condominium was not safe

if you did not know what was on the other side of the wall.

¶ 14 The parties stipulated that Chicago police sergeant Kenneth Krock was a firearms expert.

Krock testified that he examined the firearm, which was fully functioning and shown to him in

court. In the single action mode, two pounds of pressure would probably be required to pull the

gun’s trigger. In double action mode, it would require seven pounds of pressure. There was

gunshot residue in the gun indicating it had been fired.

¶ 15 Detective Thomas Karpinski testified that he interviewed Olivieri at his apartment a day

or two after the incident. Olivieri was coherent and understandable. Olivieri told Detective

Karpinski that, earlier on the evening of the shooting, he had gone for a walk in some dark areas

with his loaded revolver in his pocket “cocked for single action.” When he returned home, he

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placed the gun on his kitchen counter. Sometime later Olivieri picked up the gun and told

Karpinski he felt “as if he was having a nervous tick like squeezing a tennis ball and then it went

off.” Detective Karpinski terminated the interview, advised Olivieri of his Miranda rights, and

arrested him.

¶ 16 At the police station, Olivieri told Karpinski he would like to clarify his earlier statement.

Olivieri told the detective that he had believed that he had placed “dummy rounds” in the gun

when he left it cocked on the kitchen counter. He reiterated that he squeezed the trigger as if he

was having a nervous tick. Detective Karpinski did not recall if Olivieri stated that the gun fired

by accident.

¶ 17 The parties stipulated that James Joseph Miller was a qualified expert in the use of

handguns and issues concerning firearms and firearms training. Miller testified for the defense.

Miller stated that it was possible to place a gun from single action mode to double action mode

and vice versa. According to Miller, some type of excitement, jarring, or mental condition can

cause the trigger finger to actually squeeze the trigger and fire off a round, without the control of

the individual. This is called a sympathetic nervous system reaction (SNSR). Law enforcement

had discovered the condition and changed their training methods because of it.

¶ 18 Miller reviewed the police reports and “absolutely believe[d] this was an accidental

discharge of a firearm” and not a reckless act. Miller believed that what occurred would not

constitute a gross deviation from the standard of care that a reasonable person would exercise.

¶ 19 Olivieri testified that he was a family medicine doctor but no longer practiced. He

developed some hobbies, including shooting, and, over the past five years, had purchased seven

weapons. He went to the shooting range monthly. He never kept the guns loaded in his apartment

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and placed the ammunition in a hole in his mattress box spring. He was conscious of making it

hard to find the ammunition because he had nephews and nieces who visited. Olivieri had a

FOID card and a concealed-carry permit he received after taking a concealed-carry weapon class,

which he passed. By April 9, he had had his concealed-carry permit for two weeks.

¶ 20 At 11:30 p.m. on April 8, Olivieri brought out a pistol and loaded it with live

ammunition. He had never loaded live ammunition into a pistol while in his apartment. He then

put the pistol, which was in double action mode, in his coat pocket and went for a walk. He

returned home, placed the pistol on his kitchen counter, and went to the bathroom. When he

returned to the kitchen, he planned to unload the pistol and put dummy rounds into it. Olivieri

stated that what happened next was “kind of a blur.” While he was “taking it apart,” he did not

know if he pulled the single action mode to look at the ammunition or the chamber, but

mistakenly placed his finger on the trigger and, with what felt like a “twitch,” involuntarily fired

the pistol. He did not consciously decide to shoot nor intend to fire the weapon into his kitchen

counter. It made the most horrific sound he had ever heard and was an accident. He had intended

to unload his weapon and place dummy rounds in it because he did not keep loaded weapons in

his apartment.

¶ 21 When he came back to the kitchen counter to put dummy rounds in the pistol, he

“finagl[ed] with [the pistol], looking, you know, around the area in there and all that and pulled it

partially to first, first action. The finger grasped it,” and it felt “instinctive” and “not rational.”

Olivieri did not recall telling police that he placed dummy rounds in the pistol earlier and that,

when he pulled the trigger, he thought there were dummy rounds in it.

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¶ 22 The shooting occurred eight weeks after Olivieri finished his concealed-carry classes and

the training he received from Oziminski was still fresh in his mind, including the basic safety

rules. When asked if he put any of those rules into practice when he picked up his pistol, he

responded “well, my mind set was I was not going to be firing, so, obviously, it was—I was

alone in the room.”

¶ 23 Olivieri acknowledged that there was no safe direction to point the pistol in his apartment

and grasping the grip of the pistol did not require him to put his finger on the trigger. When he

picked up the pistol, it was not in single action mode, the hammer was not back. Olivieri stated

that he pulled the hammer back to unload it and look at the cylinder, which was a mistake.

Olivieri admitted that he could not open the cylinder to unload the pistol if he pulled the hammer

back. He also admitted that he could pick up the pistol without placing his finger on the trigger

and pulling the hammer back to see whether or not it was fully loaded.

¶ 24 At the close of evidence, the court found Olivieri guilty of reckless discharge of a

firearm. In doing so, the court noted that there was testimony that the pistol could be loaded and

unloaded without the hand on the trigger and on the hammer. Simply placing one’s hand on the

handle can open the cylinder. The court stated that Olivieri had a loaded firearm, picked it up,

pulled the trigger, and discharged it through the wall and into a neighbor’s apartment. The court

concluded that Olivieri acted in a “clear reckless fashion.” Olivieri was sentenced to 24 months’

probation.

¶ 25 Analysis

¶ 26 Olivieri contends the evidence was insufficient to establish beyond a reasonable doubt

that he was guilty of reckless discharge of a firearm. He maintains that this was an unintentional

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and accidental discharge of a firearm while he attempted to unload it, and that he did not

endanger the bodily safety of Burich.

¶ 27 When a defendant challenges the sufficiency of the evidence to sustain a conviction, the

proper standard of review is whether, after viewing the evidence in the light most favorable to

the State, any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. People v. Cunningham,

(2004). This standard

recognizes the responsibility of the trier of fact to resolve conflicts in the testimony, to weigh the

evidence, and to draw reasonable inferences. People v. Campbell,

(1992). A

criminal conviction will not be reversed unless the evidence is so unsatisfactory as to raise a

reasonable doubt of guilt.

¶ 28 We find that there was insufficient evidence to prove beyond a reasonable doubt that

Olivieri was guilty of reckless discharge of a firearm. To sustain Olivieri’s conviction for

reckless discharge of a firearm, the State must prove Olivieri discharged a firearm in a reckless

manner that endangered the bodily safety of an individual. 720 ILCS 5/24-1.5(a) (West 2012).

“A person is reckless or acts recklessly when [he] consciously disregards a

substantial and unjustifiable risk that circumstances exist or that a result will

follow, described by the statute defining the offense, and that disregard constitutes

a gross deviation from the standard of care that a reasonable person would

exercise in the situation.” 720 ILCS 5/4-6 (West 2012).

An accident is not to be equated with recklessness. People v. Franklin,

(1989).

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¶ 29 The evidence does not support the court’s finding of recklessness in discharging the

pistol. Olivieri had been issued a FOID card and recently received his concealed-carry permit.

The record shows that Olivieri placed live rounds in the pistol when he went for his walk. On

returning, he placed his pistol on the kitchen counter, and went to the bathroom. Afterwards, he

pulled the hammer back to unload the pistol and look at the cylinder, which he acknowledged

was a mistake because he could not open the cylinder to unload the pistol if he pulled the

hammer back. Then, by an involuntary movement, which he described as a “twitch” made

without conscious consideration, his finger squeezed the trigger and fired off a round. Olivieri’s

actions met Miller’s definition of SNSR, a condition where the trigger finger squeezes the trigger

and fires a round without control of the shooter but rather due to some type of excitement,

jarring, or mental condition.

¶ 30 It was established at trial that Olivieri accidentally pulled the trigger while attempting to

unload the pistol to make it safe. We find the evidence does not support the trial court’s finding

that Olivieri acted recklessly beyond a reasonable doubt.

¶ 31 In so holding, we find the State’s cases highly distinguishable. In support of its position

that Olivieri acted recklessly, the State cites People v. Andersch,

(1982), and Franklin,

. In Andersch,

, the

defendant, holding a rifle, approached some men in his apartment building who were being loud

and told them if they were not quiet, he would shoot them. The defendant then fired two fast

shots, fatally shooting two of the men.

The defendant testified that he thought the rifle was

unloaded and had not fired the collector’s item for more than six years before the shooting.

. On appeal, he argued that the shooting was accidental and an unconscious act.

.

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This court found that the defendant acted recklessly in not checking the condition of the pistol

before firing it and that the risk or result was the natural product of his acts.

. Unlike in

Andersch, Olivieri did not point his pistol at a group of people. Rather, he was attempting to

unload it when it went off. The discharge was not the natural product of his act.

¶ 32 In Franklin,

, the defendant had been drinking, got into an

argument with the victim, and shot him. When police arrived, the defendant admitted he shot the

victim.

He specifically told the officers that the victim came at him, so he picked up a gun

and, as he stood up, he stumbled backwards, causing the gun to discharge, striking and killing the

victim.

The defendant changed his story when he spoke to the assistant State’s Attorney,

indicating that he heard someone shuffling in the house, retrieved his pistol, and the pistol

accidentally discharge, striking a person in the next room.

. On appeal, the defendant

argued that the shooting was an accident because the alcohol in his system caused him to

stumble, which in turn caused the gun to discharge, and, therefore, the necessary element of

recklessness was absent.

. This court found that handling a gun while intoxicated was

reckless conduct, and that the defendant’s argument confused reckless conduct with the risks or

results associated with such conduct.

. The court stated that stumbling while handling

the gun and the subsequent discharge were risks the defendant took.

Olivieri was not drunk,

was aware of the danger inherent in a loaded gun, and, therefore, was attempting to unload the

gun. Handling a loaded gun in an attempt to unload it does not carry with it the same risk as in

Franklin that the gun will discharge.

¶ 33 We also find the following cases cited by the State distinguishable: People v. Lemke,

(2004); People v. Testin,

(1994); People v. Thomas, 8 Ill.

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App. 3d 690 (1972); and People v. Watkins,

(2005). In Lemke,

, the reviewing court noted that pointing a gun at someone is reckless. In Testin,

, the defendant’s conduct of speeding and weaving between driving lanes was

reckless homicide. In Thomas, 8 Ill. App. 3d at 693, drawing a loaded gun in a crowded tavern

was a reckless act. Finally, in Watkins,

, the defendant’s conduct of firing

several gunshots into the air in a residential neighborhood was reckless conduct.

¶ 34 Unlike in the State’s cited cases, which involved rash and reckless conduct, Olivieri did

not point his gun at someone or draw a loaded gun in a crowded area or fire his gun into the air.

Instead, Olivieri was attempting to unload the gun when it fired. The element of recklessness was

not proven beyond a reasonable doubt.

¶ 35 Reversed.

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