{ "id": 5731524, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL BUENO, Defendant-Appellant", "name_abbreviation": "People v. Bueno", "decision_date": "2005-05-20", "docket_number": "No. 2-04-0048", "first_page": "143", "last_page": "165", "citations": [ { "type": "official", "cite": "358 Ill. App. 3d 143" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 Ill. App. 3d 423", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 349612 ], "year": 1999, "pin_cites": [ { "page": "433" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/309/0423-01" ] }, { "cite": "351 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083879 ], "year": 2004, "pin_cites": [ { "page": "865" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0857-01" ] }, { "cite": "333 Ill. App. 3d 622", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 487047 ], "year": 2002, "pin_cites": [ { "page": "632-33" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/333/0622-01" ] }, { "cite": "313 Ill. App. 3d 134", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186461 ], "year": 2000, "pin_cites": [ { "page": "137" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0134-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "92 Ill. App. 3d 723", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5532936 ], "year": 1981, "pin_cites": [ { "page": "729", "parenthetical": "noting that the familial ties of alibi witnesses may bring their veracity under scrutiny such that their testimony may be rejected" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0723-01" ] }, { "cite": "250 Ill. App. 3d 699", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2918248 ], "year": 1993, "pin_cites": [ { "page": "719" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/250/0699-01" ] }, { "cite": "301 Ill. App. 3d 481", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257121 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "486" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/301/0481-01" ] }, { "cite": "351 Ill. App. 3d 505", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083957 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "512" }, { "page": "512-13" }, { "page": "513" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0505-01" ] }, { "cite": "351 Ill. App. 3d 464", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1083944 ], "year": 2004, "pin_cites": [ { "page": "469" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/351/0464-01" ] }, { "cite": "345 Ill. App. 3d 970", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3739555 ], "year": 2004, "pin_cites": [ { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/345/0970-01" ] }, { "cite": "307 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173604 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "997" }, { "page": "997" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0991-01" ] }, { "cite": "308 Ill. App. 3d 474", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 261325 ], "year": 1999, "pin_cites": [ { "page": "481", "parenthetical": "implying use of a totality-of-the-circumstances test" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/308/0474-01" ] }, { "cite": "410 U.S. 284", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957222 ], "weight": 3, "year": 1973, "opinion_index": 0, "case_paths": [ "/us/410/0284-01" ] }, { "cite": "303 Ill. App. 3d 949", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511357 ], "weight": 3, "year": 1999, "pin_cites": [ { "page": "961" }, { "page": "961" }, { "page": "961" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0949-01" ] }, { "cite": "331 Ill. App. 3d 434", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209181 ], "year": 2002, "pin_cites": [ { "page": "438-39", "parenthetical": "discussing section 115 - 10.2 of the Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0434-01" ] }, { "cite": "313 Ill. App. 3d 998", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186524 ], "weight": 4, "year": 2000, "pin_cites": [ { "page": "1003" }, { "page": "1003" }, { "page": "1005-06" }, { "page": "1006" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0998-01" ] }, { "cite": "161 Ill. App. 3d 714", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466762 ], "year": 1987, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0714-01" ] }, { "cite": "220 Ill. App. 3d 647", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5275871 ], "year": 1991, "pin_cites": [ { "page": "658", "parenthetical": "holding that only those portions of statement within personal knowledge of declarant were admissible as substantive evidence under section 115 - 10.1" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0647-01" ] }, { "cite": "264 Ill. App. 3d 278", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 680626 ], "year": 1993, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/264/0278-01" ] }, { "cite": "281 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 150218 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "700", "parenthetical": "holding that the personal-knowledge requirement is not satisfied when the witness merely testifies as to what another claims to have done" }, { "page": "701" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/281/0695-01" ] }, { "cite": "285 Ill. App. 3d 1020", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295585 ], "year": 1996, "pin_cites": [ { "page": "1028", "parenthetical": "holding that it was improper to admit witness's statement regarding the defendant's confession because \"[t]he personal knowledge requirement limits the use of out-of-court statements to those events the witness actually observed\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/1020-01" ] }, { "cite": "311 Ill. App. 3d 1005", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415390 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "1010" }, { "page": "1010" }, { "page": "1011", "parenthetical": "noting that \"personal knowledge\" excludes statements, including admissions, made to the witness by a third party, where the witness has no firsthand knowledge of the event that is the subject of the statements made by the third party" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/1005-01" ] }, { "cite": "227 Ill. App. 3d 48", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5795096 ], "year": 1992, "pin_cites": [ { "page": "54" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/227/0048-01" ] }, { "cite": "210 Cal. Rptr. 271", "category": "reporters:state", "reporter": "Cal. Rptr.", "year": 1985, "pin_cites": [ { "page": "279", "parenthetical": "holding that the admission of a hearsay statement of a witness who refuses to answer any question on direct or cross denies the defendant a meaningful opportunity to cross-examine the witness" } ], "opinion_index": 0 }, { "cite": "163 Cal. App. 3d 852", "category": "reporters:state", "reporter": "Cal. App. 3d", "case_ids": [ 2124055 ], "year": 1985, "pin_cites": [ { "page": "864", "parenthetical": "holding that the admission of a hearsay statement of a witness who refuses to answer any question on direct or cross denies the defendant a meaningful opportunity to cross-examine the witness" } ], "opinion_index": 0, "case_paths": [ "/cal-app-3d/163/0852-01" ] }, { "cite": "98 Cal. Rptr. 2d 522", "category": "reporters:state", "reporter": "Cal. Rptr. 2d", "year": 2000, "pin_cites": [ { "page": "526" } ], "opinion_index": 0 }, { "cite": "82 Cal. App. 4th 760", "category": "reporters:state", "reporter": "Cal. App. 4th", "case_ids": [ 1355807 ], "year": 2000, "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/cal-app-4th/82/0760-01" ] }, { "cite": "139 S.W.3d 462", "category": "reporters:state_regional", "reporter": "S.W.3d", "case_ids": [ 9196299 ], "year": 2004, "pin_cites": [ { "page": "464-65", "parenthetical": "noting that Crawford does not bar admission of witness's hearsay statement where the witness testified at the defendant's trial" } ], "opinion_index": 0, "case_paths": [ "/sw3d/139/0462-01" ] }, { "cite": "682 N.W.2d 169", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9237773 ], "year": 2004, "pin_cites": [ { "parenthetical": "holding that Crawford is not implicated where the declarant of hearsay statement was present at trial and subject to cross-examination" } ], "opinion_index": 0, "case_paths": [ "/nw2d/682/0169-01" ] }, { "cite": "854 A.2d 1164", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 9218121 ], "year": 2004, "pin_cites": [ { "page": "1178", "parenthetical": "holding that the confrontation clause was not violated by the admission of the witness's hearsay testimony where the defendant was given the opportunity to cross-examine the witness at his trial" } ], "opinion_index": 0, "case_paths": [ "/a2d/854/1164-01" ] }, { "cite": "692 N.W.2d 544", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 9027277 ], "year": 2005, "pin_cites": [ { "page": "549", "parenthetical": "concluding that testimonial statements need not be subject to cross-examination at the time they were made if the witness is available and subject to cross-examination at trial" } ], "opinion_index": 0, "case_paths": [ "/nw2d/692/0544-01" ] }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "484 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 601912 ], "weight": 9, "year": 1988, "pin_cites": [ { "page": "561" }, { "page": "959" }, { "page": "844" }, { "page": "563-64" }, { "page": "961" }, { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/us/484/0554-01" ] }, { "cite": "474 U.S. 15", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196542 ], "weight": 6, "year": 1985, "pin_cites": [ { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "parenthetical": "per curiam" }, { "page": "20" }, { "page": "19" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/us/474/0015-01" ] }, { "cite": "355 Ill. App. 3d 786", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3600075 ], "weight": 7, "year": 2005, "pin_cites": [ { "page": "792" }, { "page": "793" }, { "page": "794" }, { "page": "795" }, { "page": "795" }, { "page": "795" }, { "page": "796-97", "parenthetical": "discussing section 115 - 10 of the Code" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/355/0786-01" ] }, { "cite": "356 Ill. App. 3d 1023", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3749909 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "1031" }, { "page": "1032", "parenthetical": "noting that statements made to police are \"testimonial\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/356/1023-01" ] }, { "cite": "497 U.S. 805", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219632 ], "weight": 9, "year": 1990, "pin_cites": [ { "page": "814" }, { "page": "651" }, { "page": "3146" }, { "page": "820-21" }, { "page": "655-56" }, { "page": "3149" }, { "page": "822" }, { "page": "657" }, { "page": "3150" } ], "opinion_index": 0, "case_paths": [ "/us/497/0805-01" ] }, { "cite": "448 U.S. 56", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1787607 ], "weight": 15, "year": 1980, "pin_cites": [ { "page": "65-66" }, { "page": "607-08" }, { "page": "2538-39" }, { "page": "65" }, { "page": "607" }, { "page": "2538" }, { "page": "66" }, { "page": "608" }, { "page": "2539" }, { "page": "66" }, { "page": "608" }, { "page": "2539" }, { "page": "66" }, { "page": "608" }, { "page": "2539" } ], "opinion_index": 0, "case_paths": [ "/us/448/0056-01" ] }, { "cite": "347 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3950176 ], "year": 2004, "pin_cites": [ { "page": "1050" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/1044-01" ] }, { "cite": "348 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4021993 ], "year": 2004, "pin_cites": [ { "page": "535" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/348/0521-01" ] }, { "cite": "541 U.S. 36", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 5873383 ], "weight": 24, "year": 2004, "pin_cites": [ { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "59" }, { "page": "197" }, { "page": "1369" }, { "page": "68" }, { "page": "203" }, { "page": "1374" }, { "page": "59" }, { "page": "197" }, { "page": "1369" } ], "opinion_index": 0, "case_paths": [ "/us/541/0036-01" ] } ], "analysis": { "cardinality": 1508, "char_count": 53693, "ocr_confidence": 0.76, "pagerank": { "raw": 9.02352437098443e-08, "percentile": 0.5038343934337485 }, "sha256": "651f6e4684e238a6787119ba1c8be4dce7bd8f0c55c0a0486a97ebc9148d3a1e", "simhash": "1:16bbbfaaea1518e6", "word_count": 8709 }, "last_updated": "2023-07-14T22:37:08.387494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL BUENO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GROMETER\ndelivered the opinion of the court:\nDefendant, Daniel Bueno, was charged by indictment with two counts of aggravated discharge of a firearm within 1,000 feet of real property comprising a school (720 ILCS 5/24 \u2014 1.2(a)(1), (b) (West 2002)), two counts of aggravated discharge of a firearm (720 ILCS 5/24 \u2014 1.2(a)(1) (West 2002)), and one count of aggravated unlawful use of a weapon (720 ILCS 5/24 \u2014 1.6(a)(1), (a)(3)(A) (West 2002)). Following a bench trial in the circuit court of Lake County, defendant was convicted of aggravated unlawful use of a weapon and one count each of aggravated discharge of a firearm within 1,000 feet of real property comprising a school and aggravated discharge of a firearm. The trial court sentenced defendant to 16 years\u2019 imprisonment on the conviction of aggravated discharge of a firearm within 1,000 feet of real property comprising a school and 15 years\u2019 imprisonment on the conviction of aggravated discharge of a firearm. The court ordered the sentences to run concurrently. The court did not enter judgment on or sentence defendant for the aggravated unlawful use of a weapon conviction. On appeal, defendant raises two arguments. First, defendant contends that the trial court erred in admitting as substantive evidence a statement made by Sergio Ruiz, one of the State\u2019s witnesses. Second, defendant asserts that the State failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm. For the reasons that follow, we vacate defendant\u2019s conviction of and sentence for aggravated discharge of a firearm and we modify the mittimus, but we otherwise affirm the decision of the trial court.\nI. BACKGROUND\nThe charges against defendant arose out of a drive-by shooting that occurred the evening of September 25, 2002, when shots were fired at a residence located at 502 North Butrick in Waukegan and at a vehicle parked in a driveway at 506 North Butrick. At approximately 9:30 p.m., the Waukegan police department received a report of the shooting. Officer Alias Agalianos testified that, when he arrived about one minute later, at least six people were in the home at 502 North Butrick. After speaking with some witnesses, Agalianos searched the area. He found two spent shell casings in the middle of the street. Agalianos examined the house for damage and observed two bullet holes. In addition, Agalianos observed that a truck parked in the driveway at 506 North Butrick had one bullet hole in the tailgate and another in the rear driver\u2019s-side tire.\nOfficer Michael Mandro, an evidence technician with the Waukegan police department, testified that two shell casings and four projectiles were recovered from the scene. Mandro determined that the shell casings were from a .38-caliber Winchester. Two of the projectiles were found at 502 North Butrick. According to Mandro, these two projectiles passed through the front door of the residence. One of the projectiles was found lodged in an interior doorway, and the other was found resting on a windowsill.\nSergio Ruiz testified that he was serving a three-year sentence in the Illinois Department of Corrections for unlawful sale of a firearm. In October 2002, Sergio, then 17 years old, and an acquaintance were arrested by the Waukegan police department on a charge unrelated to this case. At that time, Sergio gave two written statements to the police regarding the September 25, 2002, shooting. The first statement was given on October 22, 2002, at 9 p.m. The second statement was given on October 23, 2002, at 6 p.m. Both statements were typed by Sergeant Cappelutti and witnessed by Cappelutti and Detective Charles Schletz.\nSergio testified that after being informed of his Miranda rights, he gave police a verbal statement. The officers asked Sergio to reduce the statement to writing. Sergio indicated that he did not want to -write out a statement, so Cappelutti typed the statement for him. Sergio reviewed the typed statement and signed it. Sergio identified People\u2019s exhibit 34 as the first statement he gave to police. In this statement, Sergio told the police that he is a junior member of the Latin Kings and that he holds guns for them. Sergio also stated that Juan Vargas was the person who fired shots at 502 North Butrick and that Sergio had supplied Vargas with the gun used in the shooting. After the shooting, Vargas returned the weapon to Sergio.\nIn his second statement, Sergio stated that it was not Juan Vargas who fired the shots at 502 North Butrick but, rather, an individual named \u201cBaqweek.\u201d Sergio further stated that, the day after the shooting, \u201cBaqweek\u201d told him that he fired four shots at the residence while riding in a black Lincoln with \u201cEmmanuel\u201d and \u201cSmokey.\u201d Sergio told police that he was familiar with the weapon used in the shooting, a \u201c.380,\u201d and that the gun always jammed after the third or fourth shot. Sergio stated that \u201cBaqweek\u201d told him that the gun jammed on the night of the shooting. The second statement was marked as People\u2019s exhibit 35.\nWhen asked at defendant\u2019s trial about the specifics of his first statement, Sergio- stated that he did not wish to answer any more questions. The trial court ordered Sergio to respond, but he still refused. The court then held Sergio in direct contempt of court and delayed any further questioning of Sergio until he consulted with his attorney. After speaking with his attorney, Sergio again took the witness stand. Sergio denied making certain statements to police and refused to testify any further. The trial court then gave defendant\u2019s attorney the opportunity to cross-examine Sergio. On cross-examination, Sergio admitted that he signed the first statement. He then reviewed the statement and testified that parts of the statement were his, but that he could not recall which ones. Defense counsel stated that he had \u201cnothing further.\u201d The State then submitted that Sergio was \u201crefusing to testify both to the State and the questioning of the defense.\u201d Thereafter, the trial court found Sergio in contempt of court and sentenced him to six months\u2019 imprisonment.\nThe State then moved to admit People\u2019s exhibits 34 and 35 as substantive evidence pursuant to sections 115 \u2014 10.1 and 115 \u2014 10.2 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115 \u2014 10.1 (West 2002); 725 ILCS 5/115 \u2014 10.2 (West Supp. 2003)). Defendant objected to the admission of the statements. The trial judge concluded that the statements were admissible under both sections. People\u2019s exhibit 36, a photo lineup in which Sergio identified defendant as \u201cBaqweek,\u201d was also admitted into evidence.\nMaria Ruiz, Sergio\u2019s mother, identified defendant by the name \u201cBaqweek\u201d or \u201cBaquick.\u201d Maria testified that, at some point during 2002, she found a gun in her house. After Maria found the gun, \u201cBaqweek\u201d came to her house, and she gave the gun to him. \u201cBaqweek\u201d told Maria that the gun belonged to his friend and that he would return it to him. Maria cautioned \u201cBaqweek\u201d not to play with guns and warned him that the next time that she saw a weapon in her home she would call the police.\nEmmanuel Gomez testified that he is on juvenile probation in relation to the September 25, 2002, shooting. Late in October 2002, Gomez gave the police a written statement. In the statement, Gomez acknowledged driving the car from which the shots were fired. Specifically, Gomez stated that he drove a dark-colored Lincoln with the headlights off past a residence at 502 North Butrick and that a passenger in the car fired shots at the home because a rival gang member lived there. Gomez identified the shooter as \u201cJuan.\u201d He told the police that Juan shot at the house four times before the gun jammed. Gomez did not reference defendant\u2019s given name in his written statement to police. However, he did tell police that an individual nicknamed \u201cQuick\u201d was one of the passengers in his car on the night of the shooting. At defendant\u2019s trial, Gomez testified that Quick\u2019s given name is Ignacio and that Quick is a friend of Sergio Ruiz.\nOn November 8, 2002, Gomez entered a guilty plea in juvenile court. The transcript from Gomez\u2019s juvenile court proceeding was admitted as substantive evidence. Defense counsel did not object, stating that the transcript \u201cmeets the requirements of the statute.\u201d At the proceeding, Gomez identified \u201cDaniel Bueno\u201d as the individual who fired the shots from his car on September 25, 2002. Gomez told the juvenile court judge that he knew that defendant had a weapon. Gomez also told the judge that he pulled up to 502 North Butrick and turned off his headlights, knowing that defendant was going to discharge the weapon. At defendant\u2019s trial, however, Gomez testified that he had never met defendant. Gomez testified that he lied to the juvenile court judge when he identified defendant as the shooter. Gomez testified that, while in custody at the juvenile detention center, he learned about defendant from reading statements written by other individuals involved in the shooting. However, when presented with the statements he read from these individuals, Gomez admitted that none of them reference defendant\u2019s given name.\nOn cross-examination, Gomez reiterated that defendant was not in his car on September 25, 2002. Moreover, Gomez denied that he was the individual who drove the car involved in the shooting. Gomez also denied that any of the nicknames referenced in his written statement to the police belonged to defendant. Gomez stated that at the November 8, 2002, juvenile court proceeding, no one showed him a picture of defendant to confirm or deny that he was the shooter. Gomez also testified that he withdrew the guilty plea he entered on November 8, 2002, because he \u201cknew that no Daniel Bueno was involved in that shooting.\u201d Later, Gomez again pleaded guilty in juvenile court, allegedly without implicating defendant in the shooting. On redirect, Gomez acknowledged that after he withdrew his plea, he reentered a plea of guilty before a different judge, based on the same facts as the previous plea.\nDetective Schletz identified People\u2019s exhibit 34 as the first written statement obtained from Sergio Ruiz in relation to the shooting on September 25, 2002. Schletz testified that the statement was signed by Sergio and witnessed by Schletz and Sergeant Cappelluti. Schletz testified that the persons that he initially spoke to about the September 25, 2002, shooting all indicated that a Juan Antonio Vargas was the triggerman. After learning that Vargas was locked up in a juvenile detention center at the time of the shooting, Schletz spoke to Sergio again. Schletz identified People\u2019s exhibit 35 as the second written statement obtained from Sergio. The second statement was also signed by Sergio, Schletz, and Cappelluti.\nSchletz admitted that none of the individuals who gave statements identified defendant by his given name. Instead, defendant was identified as \u201cBaqweek,\u201d \u201cBaquick,\u201d \u201cQuick,\u201d \u201cPalatine,\u201d or \u201cJuan Antonio\u2019s cousin from Palatine.\u201d Schletz identified People\u2019s exhibit 36 as a photo lineup that was shown to Sergio. Sergio identified defendant as an individual nicknamed \u201cBaquick\u201d or \u201cBaqweek.\u201d Finally, Schletz testified that, using a walking meter, he determined that the distance from the place where the shooting occurred to school property was 701 feet.\nOfficer Andy Ulloa of the Waukegan police department testified that, on October 22, 2002, he interviewed Gomez regarding the September 25, 2002, shooting. During the interview, Ulloa never mentioned defendant\u2019s given name. Gomez gave police a written statement in Spanish, which Ulloa identified as People\u2019s exhibit 26. Ulloa testified that in the statement, Gomez identified Juan Vargas as the shooter. Gomez also stated that an individual named \u201cQuick\u201d was in the vehicle at the time of the shooting. Ulloa identified defendant as the individual nicknamed \u201cBaqweek.\u201d\nAfter the State rested, defendant moved for a directed finding. The trial court denied defendant\u2019s request. Defendant then called two of his sisters as alibi witnesses.\nMaria Bueno (Bueno) testified that she and her family, including defendant, spent the evening of September 25, 2002, celebrating the birthday of her sister, Carolina Estanislao. Although Estanislao\u2019s birthday was September 20, the family decided to celebrate the occasion on September 25 because Estanislao and her husband had planned a private celebration for Estanislao\u2019s actual birthday. Bueno testified that the family dined at a Chinese buffet in Bloomingdale. The restaurant, located about 60 to 90 minutes from Waukegan, is close to Bueno\u2019s home in Hanover Park. Bueno testified that she, her former spouse, and their children arrived at the buffet between 7:15 and 7:30 p.m. Defendant drove with them. Bueno estimated that the group left the restaurant shortly after 9 p.m. At that time, defendant drove with Bueno and her family to her Hanover Park home, arriving at about 9:30 p.m. Members of the extended family also returned to Bueno\u2019s home. The family, including defendant, stayed up until about 11 p.m. Bueno testified that when she awoke the next morning, defendant was still at her home.\nBueno stated that she did not find out that her brother had been implicated in the September 25, 2002, shooting until after he started going to court in September 2003. She admitted, however, that when she did find out about the charges against her brother, she did not report his whereabouts the evening of September 25 to law enforcement authorities because she \u201cdidn\u2019t know that we were supposed to say anything if he was with us\u201d and because she did not believe that it would do any good at that point. Bueno testified that the family did not take any photographs at the dinner and that she did not have a receipt from the restaurant because the family paid with cash.\nEstanislao\u2019s testimony mirrored Bueno\u2019s in most respects. Estanislao added that she was living at Bueno\u2019s house at the time of the birthday celebration. Estanislao testified that she allowed defendant to sleep in her bedroom on the night of September 25, 2002, and that defendant went to sleep before her. When Estanislao awoke the next morning, defendant was still in bed. On cross-examination, Estanislao testified that when she found out that her brother was in trouble, she did not contact any law enforcement agents to tell them that defendant was with her on the evening of September 25, 2002, because she \u201cdidn\u2019t think [she] had to because [she] was coming to court.\u201d\nFollowing Estanislao\u2019s testimony, defendant rested. The trial court found defendant guilty of one count of aggravated discharge of a firearm, one count of aggravated discharge of a firearm within 1,000 feet of real property comprising a school, and one count of aggravated unlawful use of a weapon. The trial court sentenced defendant to 16 years\u2019 imprisonment on the conviction of aggravated discharge of a firearm within 1,000 feet of a school and 15 years\u2019 imprisonment on the conviction of aggravated discharge of a firearm. The sentences were ordered to run concurrently. The trial court did not enter judgment on or impose sentence for the aggravated unlawful use of a weapon conviction. Defendant\u2019s posttrial motion was denied. This timely appeal ensued.\nII. ANALYSIS\nOn appeal, defendant first argues that the trial court erred in admitting as substantive evidence the second statement that Sergio Ruiz gave to the police. The trial court determined that this statement was admissible under both section 115 \u2014 10.1 and section 115 \u2014 10.2 of the Code (725 ILCS 5/115 \u2014 10.1 (West 2002); 725 ILCS 5/115 \u2014 10.2 (West Supp. 2003)). Defendant challenges the admissibility of Sergio\u2019s second statement on three separate grounds. First, defendant contends that Sergio\u2019s second statement was inadmissible under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004). Second, defendant asserts that Sergio\u2019s second statement was inadmissible under section 115 \u2014 10.1 of the Code because Sergio never acknowledged at trial that he made the statement. Third, defendant contends that the statement was inadmissible under section 115 \u2014 10.2 of the Code because it lacked \u201ccircumstantial guarantees of trustworthiness.\u201d The State disputes the application of Crawford to the facts of this case. In addition, while the State acknowledges that Sergio\u2019s second statement was admitted under both section 115 \u2014 10.1 and section 115 \u2014 10.2 of the Code (725 ILCS 5/115 \u2014 10.1 (West 2002); 725 ILCS 5/115 \u2014 10.2 (West Supp. 2003)), it argues that section 115 \u2014 10.1 \u201cis more applicable.\u201d The State asserts that section 115 \u2014 10.2 does not apply because \u201cit is limited by its own language to situations where the statement is not specifically covered by another hearsay exception\u201d and Sergio\u2019s second statement is admissible under section 115 \u2014 10.1. We begin our discussion with Crawford.\nA. Crawford\nTo be admissible, a prior out-of-court statement must not only comply with statutory requirements but also satisfy the confrontation clause. People v. Martinez, 348 Ill. App. 3d 521, 535 (2004); People v. Patterson, 347 Ill. App. 3d 1044, 1050 (2004). The sixth amendment\u2019s confrontation clause provides that \u201c[i]n all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him.\u201d U.S. Const., amend. VI. In Ohio v. Roberts, 448 U.S. 56, 65-66, 65 L. Ed. 2d 597, 607-08, 100 S. Ct. 2531, 2538-39 (1980), the Supreme Court developed a \u201c \u2018general approach\u2019 for determining when incriminating statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause.\u201d Idaho v. Wright, 497 U.S. 805, 814, 111 L. Ed. 2d 638, 651, 110 S. Ct. 3139, 3146 (1990). First, the Court stated that the declarant must be unavailable to testify at trial. Roberts, 448 U.S. at 65, 65 L. Ed. 2d at 607, 100 S. Ct. at 2538. Once the witness\u2019s unavailability is established, the statement of the unavailable witness will be admitted against a criminal defendant only if the statement bears \u201cadequate \u2018indicia of reliability.\u2019 \u201d Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539. The Supreme Court stated that reliability can be inferred where the evidence falls under a firmly rooted hearsay exception. Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539. Evidence not falling under a firmly rooted hearsay exception is admissible only if the party proffering the evidence demonstrates that the evidence possesses \u201cparticularized guarantees of trustworthiness.\u201d Roberts, 448 U.S. at 66, 65 L. Ed. 2d at 608, 100 S. Ct. at 2539.\nRecently, however, in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), the Supreme Court altered the \u201cadequate indicia of reliability\u201d framework developed in Roberts. People v. Gilmore, 356 Ill. App. 3d 1023, 1031 (2005). The Crawford Court differentiated between \u201ctestimonial\u201d and \u201cnontestimonial\u201d hearsay. Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374. The Court held that a \u201ctestimonial\u201d statement of a witness who is absent from trial is admissible only where the declarant is unavailable and the defendant has had a prior opportunity for cross-examination. Crawford, 541 U.S. at 59, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369. Although the Supreme Court declined to provide a comprehensive definition of \u201ctestimonial,\u201d it did note that it applies to \u201cpolice interrogations.\u201d Crawford, 541 U.S. at 68, 158 L. Ed. 2d at 203, 124 S. Ct. at 1374; see also Gilmore, 356 Ill. App. 3d at 1032 (noting that statements made to police are \u201ctestimonial\u201d). Thus, under Crawford, Sergio\u2019s second statement to police undoubtedly was testimonial. The Supreme Court stressed, however, that \u201cwhen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements.\u201d Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. As a threshold matter, then, we must determine whether Sergio \u201cappear[ed] for cross-examination\u201d within the context of Crawford. People v. Sharp, 355 Ill. App. 3d 786, 792 (2005), a recent case from the Fourth District, is instructive on this matter.\nIn Sharp, the defendant was charged with predatory criminal sexual assault. Following a hearing pursuant to section 115 \u2014 10 of the Code (725 ILCS 5/115 \u2014 10 (West 2000)), the trial court allowed into evidence hearsay statements that the victim had made to her mother and to the director of a children\u2019s advocacy center. The victim testified at the defendant\u2019s trial, but did not respond on direct examination to questions about the details of the actual offense. On cross-examination, defense counsel asked general questions regarding the victim\u2019s activities on the day of the alleged assault as well as questions about the room where the assault allegedly took place. However, defense counsel did not ask the victim any questions about what happened to her in the room where the assault allegedly took place. A jury ultimately convicted the defendant of the charged offense. On appeal, the defendant argued that the hearsay statements were admitted in violation of the confrontation clause.\nIn its decision, the Sharp court discussed what it means to \u201cappear for cross-examination\u201d for purposes of the confrontation clause. The Sharp court noted that although the Supreme Court did not explain in Crawford what it meant for a declarant to \u201cappear for cross-examination,\u201d the Court neither overruled nor called into question two earlier decisions that addressed this issue. In the first case, Delaware v. Fensterer, 474 U.S. 15, 88 L. Ed. 2d 15, 106 S. Ct. 292 (1985) (per curiam), the Court stated that the confrontation clause guarantees \u201c \u2018an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.\u2019 \u201d (Emphasis in original.) Sharp, 355 Ill. App. 3d at 793, quoting Fensterer, 474 U.S. at 20, 88 L. Ed. 2d at 19, 106 S. Ct. at 294. In the second case, United States v. Owens, 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838 (1988), the Court held that the confrontation clause is not violated by the admission of an identification statement of a witness who is unable to testify because of memory loss. In so holding, the Court stated that \u201c \u2018[ojrdinarily, a witness is regarded as \u201csubject to cross-examination\u201d when he is placed on the stand, under oath, and responds willingly to questions.\u2019 \u201d (Emphasis omitted.) Sharp, 355 Ill. App. 3d at 794, quoting Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct. at 844. The Sharp court pointed out that our supreme court adopted the analyses of Fensterer and Owens in People v. Flores, 128 Ill. 2d 66 (1989).\nBased on the aforementioned case law, the Sharp court concluded that the victim \u201cappeared\u201d for cross-examination at the defendant\u2019s trial. The Sharp court observed that the victim did testify regarding the events leading to and following the alleged crime. Sharp, 355 Ill. App. 3d at 795. More importantly, the Sharp court held that the key inquiry is whether a declarant of a hearsay statement was present for cross-examination and answered questions asked of her by defense counsel. Sharp, 355 Ill. App. 3d at 795. In Sharp, not only was the victim present at the defendant\u2019s trial, but she answered all of the questions posed to her by defense counsel on cross-examination. Thus, the victim \u201cappeared\u201d for cross-examination at the defendant\u2019s trial, and the confrontation clause did not bar the admission of the victim\u2019s hearsay statements at the defendant\u2019s trial. Courts in other jurisdictions have reached similar conclusions. See, e.g., State v. Carothers, 692 N.W.2d 544, 549 (S.D. 2005) (concluding that testimonial statements need not be subject to cross-examination at the time they were made if the witness is available and subject to cross-examination at trial); State v. Gorman, 854 A.2d 1164, 1178 (Me. 2004) (holding that the confrontation clause was not violated by the admission of the witness\u2019s hearsay testimony where the defendant was given the opportunity to cross-examine the witness at his trial); State v. Tate, 682 N.W.2d 169, 176 n.l (Minn. App. 2004) (holding that Crawford is not implicated where the declarant of hearsay statement was present at trial and subject to cross-examination); Crawford v. State, 139 S.W.3d 462, 464-65 (Tex. App. 2004) (noting that Crawford does not bar admission of witness\u2019s hearsay statement where the witness testified at the defendant\u2019s trial); People v. Perez, 82 Cal. App. 4th 760, 766, 98 Cal. Rptr. 2d 522, 526 (2000) (holding that the admission of witness\u2019s prior statement did not violate the defendants\u2019 right to confront witness against them despite witness\u2019s professed inability to recall the crime or her statements to police; although witness\u2019s stance narrowed scope of the defendants\u2019 cross-examination, the jury was still able to assess witness\u2019s demeanor and credibility); cf. People v. Rios, 163 Cal. App. 3d 852, 864, 210 Cal. Rptr. 271, 279 (1985) (holding that the admission of a hearsay statement of a witness who refuses to answer any question on direct or cross denies the defendant a meaningful opportunity to cross-examine the witness).\nIn this case, Sergio gave multiple statements to the police, implicating different individuals. The State called Sergio at defendant\u2019s trial. Sergio testified that he was incarcerated, that he spoke to the police, that the police informed him of his Miranda rights, and that he \u201cgave some statements\u201d concerning the September 25, 2002, shooting. In addition, Sergio acknowledged providing police with a verbal statement, which the police reduced to writing. He then identified People\u2019s exhibit 34 as the first statement he gave to police. When questioned about the specifics of the first statement, Sergio indicated that he could not remember and then refused to testify any further. Sergio persisted in refusing to testify, despite a trial court order that he respond to the State\u2019s inquiries. At that point, the court found Sergio in direct contempt of court and delayed any further questioning until Sergio had a chance to consult with his attorney. The State recalled Sergio after he spoke with his attorney. Sergio denied making certain statements to police and then refused to testify any further. However, the trial court made Sergio available to defense counsel for cross-examination. On cross-examination, Sergio admitted that he signed the first statement. He then reviewed the statement and testified that parts of the statement were his, but that he could not recall which ones. Defense counsel then stated that he had \u201cnothing further.\u201d Like the victim in Sharp, Sergio was present for cross-examination and he answered all of the questions asked of him by defense counsel. Thus, Sergio \u201cappeared\u201d for cross-examination at defendant\u2019s trial and the admission of Sergio\u2019s second hearsay statement did not implicate Crawford or the confrontation clause.\nDefendant claims, however, that Sergio was \u201cunavailable\u201d for cross-examination regarding his second statement because direct examination regarding this statement was never attempted. Defendant further asserts that any attempt to cross-examine Sergio regarding the second statement would have been beyond the scope of direct. We disagree. The trial court has wide latitude in determining the permissible scope of cross-examination. People v. Kegley, 227 Ill. App. 3d 48, 54 (1992). This is not a case in which the hearsay declarant refused to testify about anything. Here, on direct examination, Sergio acknowledged that he \u201cgave some statements\u201d to police regarding the September 25, 2002, shooting. Since Sergio admitted that he gave the police more than one statement, we cannot agree with the proposition that an attempt by defense counsel to question Sergio regarding the second statement would have been considered beyond the scope of direct. Moreover, the Sharp court implicitly rejected an argument similar to that made by defendant in this case. As discussed above, in Sharp, the court upheld the admission of the victim\u2019s hearsay statement despite the fact that the State was rebuffed in its attempt to question the victim regarding the circumstances of the actual offense, because the victim answered all of defense counsel\u2019s questions on cross-examination. Sharp, 355 Ill. App. 3d at 795. In this case, Sergio answered all of defense counsel\u2019s questions on cross-examination. Because Sergio \u201cappear[ed] for cross-examination\u201d under Crawford, the confrontation clause places \u201cno constraints at all on the use of his prior testimonial statements.\u201d Crawford, 541 U.S. at 59 n.9, 158 L. Ed. 2d at 198 n.9, 124 S. Ct. at 1369 n.9. Having determined that Crawford does not bar the admission of Sergio\u2019s hearsay statements, we turn to whether the statements are admissible under either of the two statutes identified by the trial court.\nB. Section 115 \u2014 10.1\nGenerally, a party may use a prior inconsistent statement only for purposes of impeachment. People v. Morgason, 311 Ill. App. 3d 1005, 1010 (2000). However, section 115 \u2014 10.1 of the Code (725 ILCS 5/115 \u2014 10.1 (West 2002)) allows the admission of a witness\u2019s prior inconsistent statement as substantive evidence under certain circumstances. Morgason, 311 Ill. App. 3d at 1010. Section 115 \u2014 10.1 provides in relevant part:\n\u201cIn all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if\n(a) the statement is inconsistent with his testimony at the hearing or trial, and\n(b) the witness is subject to cross-examination concerning the statement, and\n(c) the statement\u2014\n(1) was made under oath at a trial, hearing, or other proceeding, or\n(2) narrates, describes, or explains an event or condition of which the witness had personal knowledge, and\n(A) the statement is proved to have been written or signed by the witness, or\n(B) the witness acknowledged under oath the making of the statement either in his testimony at the hearing or trial in which the admission into evidence of the prior statement is being sought, or at a trial, hearing, or other proceeding, or\n(C) the statement is proved to have been accurately recorded by a tape recorder, videotape recording, or any other similar electronic means of sound recording.\u201d 725 ILCS 5/115 \u2014 10.1 (West 2002).\nAs noted above, defendant argues that Sergio\u2019s second statement was inadmissible under section 115 \u2014 10.1 of the Code because Sergio never acknowledged at trial that he made the statement. The State insists that Sergio\u2019s second statement was properly admitted under this statutory provision because Sergio\u2019s second statement was inconsistent with his testimony at trial, Sergio was subject to cross-examination, and Sergio signed the second statement.\nTo he admissible under section 115 \u2014 10.1, a statement must be inconsistent with the witness\u2019s testimony at trial, the witness must be subject to cross-examination, and the statement must either: (1) have been made under oath at a trial, hearing, or other proceeding; or (2) narrate, describe, or explain an event or condition of which the witness had personal knowledge, and meet at least one of three other requirements. We conclude that Sergio\u2019s second statement is inadmissible under section 115 \u2014 10.1 because it neither was made under oath at a trial, hearing, or other proceeding nor does it narrate, describe, or explain an event or condition of which Sergio had \u201cpersonal knowledge.\u201d\nSergio\u2019s second statement was made to police after he was apprehended on a charge unrelated to the September 25, 2002, shooting. Thus, it was clearly not made \u201cunder oath at a trial, hearing, or other proceeding.\u201d Moreover, Sergio\u2019s second statement did not narrate, describe, or explain an event or condition of which Sergio had \u201cpersonal knowledge.\u201d\nFor a witness to have personal knowledge, the witness must have observed, and not merely heard, the subject matter underlying the statement. Morgason, 311 Ill. App. 3d at 1011 (noting that \u201cpersonal knowledge\u201d excludes statements, including admissions, made to the witness by a third party, where the witness has no firsthand knowledge of the event that is the subject of the statements made by the third party); People v. Fields, 285 Ill. App. 3d 1020, 1028 (1996) (holding that it was improper to admit witness\u2019s statement regarding the defendant\u2019s confession because \u201c[t]he personal knowledge requirement limits the use of out-of-court statements to those events the witness actually observed\u201d); People v. Morales, 281 Ill. App. 3d 695, 700 (1996) (holding that the personal-knowledge requirement is not satisfied when the witness merely testifies as to what another claims to have done); People v. Williams, 264 Ill. App. 3d 278, 290 (1993); People v. Saunders, 220 Ill. App. 3d 647, 658 (1991) (holding that only those portions of statement within personal knowledge of declarant were admissible as substantive evidence under section 115 \u2014 10.1); People v. Hastings, 161 Ill. App. 3d 714, 720 (1987). The rationale for requiring a witness to personally observe the events that are the subject matter of his or her comments is that a witness is less likely to repeat another\u2019s statement if he or she witnessed the event and knows that the statement is untrue. Morales, 281 Ill. App. 3d at 701. In the present case, Sergio\u2019s second statement consisted of Sergio\u2019s allegation that defendant used a \u201c.380\u201d in the shooting and that defendant admitted that he was the triggerman on September 25, 2002. However, Sergio did not state that he supplied the shooter with the gun or that he personally observed the shooting. Thus, Sergio\u2019s second statement does not narrate, describe, or explain an event or condition of which Sergio had personal knowledge, and it is inadmissible under section 115 \u2014 10.1.\nC. Section 115 \u2014 10.2\nThe trial court, however, also concluded that Sergio\u2019s second statement was admissible under section 115 \u2014 10.2 of the Code (725 ILCS 5/115 \u2014 10.2 (West Supp. 2003)). Often referred to as the \u201cresidual hearsay statute,\u201d section 115 \u2014 10.2 provides in relevant part:\n\u201c(a) A statement not specifically covered by any other hearsay exception but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule if the declarant is unavailable as defined in subsection (c) and if the court determines that:\n(1) the statement is offered as evidence of a material fact; and\n(2) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and\n(3) the general purposes of this Section and the interests of justice will best be served by admission of the statement into evidence.\n# * *\n(c) Unavailability as a witness is limited to the situation in which the declarant persists in refusing to testify concerning the subject matter of the declarant\u2019s statement despite an order of the court to do so.\u201d 725 ILCS 5/115 \u2014 10.2(a), (c) (West Supp. 2003).\nAccording to defendant, Sergio\u2019s second statement is inadmissible under section 115 \u2014 10.2 of the Code because it lacked \u201ccircumstantial guarantees of trustworthiness\u201d required for admission under that statutory provision. The State does not address the application of section 115 \u2014 10.2.\nUnless a witness is \u201cunavailable\u201d as that term is used in section 115 \u2014 10.2(c), the residual hearsay statute does not apply. People v. Thomas, 313 Ill. App. 3d 998, 1003 (2000), overruled on other grounds, Crawford, 541 U.S. at 59, 158 L. Ed. 2d at 197, 124 S. Ct. at 1369. As set forth in the statute, \u201cunavailability\u201d is a term of art, i.e., it has a specific, limited definition for purposes of the statute. Thomas, 313 Ill. App. 3d at 1003. The statute defines unavailability as \u201cthe situation in which the declarant persists in refusing to testify concerning the subject matter of the declarant\u2019s statement despite an order of the court to do so.\u201d 725 ILCS 5/115 \u2014 10.2(c) (West Supp. 2003). In this case, Sergio persisted in refusing to answer the questions posed by the State regarding the subject matter of his statements even after the trial court ordered him to do so. Therefore, we conclude that Sergio was \u201cunavailable\u201d as that term is defined in the residual hearsay statute. See People v. Wilson, 331 Ill. App. 3d 434, 438-39 (2002) (discussing section 115 \u2014 10.2 of the Code).* **\nOnce unavailability is established, a hearsay statement is admissible under section 115 \u2014 10.2 only if the statement is trustworthy, material, and probative and serves the interests of justice. 725 ILCS 5/115 \u2014 10.2(a) (West Supp. 2003); People v. Brown, 303 Ill. App. 3d 949, 961 (1999). As noted above, defendant asserts that the second statement that Sergio made to police is inadmissible under section 115 \u2014 10.2 of the Code because it lacked \u201ccircumstantial guarantees of trustworthiness.\u201d In support of this position, defendant argues that: (1) Sergio\u2019s statement was not made under oath; (2) Sergio did not speak from personal knowledge; (3) Sergio was a \u201cyoung, gun-hiding and gun-selling gang member with all the baggage that attaches to said status in terms of lack of veracity, minimal truth-telling ability, and moral turpitude\u201d; (4) Sergio implicated defendant in exchange for leniency on criminal charges filed against him; (5) Sergio\u2019s statement was not spontaneous; (6) the objective of the police in interviewing Sergio was to obtain information to make an arrest in the shooting; (7) Sergio never acknowledged the statement in court; and (8) Sergio never reaffirmed the statement.\nCourts in Illinois have applied various tests to determine whether a particular statement bears equivalent circumstantial guarantees of trustworthiness. For instance, in Brown, the court considered the following four factors: (1) whether the statement was made spontaneously to a close acquaintance shortly after the crime occurred; (2) whether the statement was corroborated by other evidence; (3) whether the statement was self-incriminating or otherwise against the declarant\u2019s interest; and (4) whether there was an adequate opportunity to cross-examine the declarant. Brown, 303 Ill. App. 3d at 961, citing Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). The Brown court pointed out that not all four factors need be present for a statement to be admissible and that the trial court\u2019s determination should be based on the \u201ctotality of the circumstances.\u201d Brown, 303 Ill. App. 3d at 961. In Campbell, the court endorsed a test based on \u201cthe totality of the circumstances surrounding the preparation of the statements.\u201d Campbell, 309 Ill. App. 3d at 431, citing Wright, 497 U.S. at 820-21, 111 L. Ed. 2d at 655-56, 110 S. Ct. at 3149. The Campbell court, however, expressly rejected the notion that, in considering the totality of the circumstances, corroborating evidence (a factor cited by the Brown court) is relevant. Citing to Wright, 497 U.S. at 822, 111 L. Ed. 2d at 657, 110 S. Ct. at 3150, the Campbell court explained that the statement must \u201c \u2018possess indicia of reliability by virtue of its inherent trustworthiness, not by reference to other evidence at trial.\u2019 \u201d Campbell, 309 Ill. App. 3d at 431. More recently, in Thomas, the court also endorsed a totality-of-the-circumstances test. Thomas, 313 Ill. App. 3d at 1005-06. To assist trial courts in implementing this test, the Thomas court set forth a list of eight factors to consider, including: (1) whether the statement was made under oath; (2) whether the declarant spoke from personal knowledge; (3) the identity and background of the declarant and whether the declarant would use the words contained in the statement; (4) the declarant\u2019s mental state; (5) the method used to interview the declarant; (6) the circumstances surrounding the making of the statement; (7) how the statement was recorded; and (8) whether the declarant reaffirmed his or her statement. Thomas, 313 Ill. App. 3d at 1006; see also People v. Quick, 308 Ill. App. 3d 474, 481 (1999) (implying use of a totality-of-the-circumstances test). It is within the province of the trial court to determine, based on the totality of the circumstances, whether a particular hearsay statement is trustworthy. People v. Boyd, 307 Ill. App. 3d 991, 997 (1999). The trial court\u2019s determination will not be disturbed absent an abuse of discretion. Boyd, 307 Ill. App. 3d at 997.\nExamining the totality of the circumstances surrounding Sergio\u2019s second statement, we conclude that it bore equivalent circumstantial guarantees of trustworthiness and that the trial court did not abuse its discretion in finding the statement admissible under section 115 \u2014 10.2 of the Code. Sergio was apprehended by police on a charge unrelated to the shooting. During his first interview with police, Sergio stated that \u201cJuan Vargas\u201d was the person who fired shots at 502 North Butrick and that Sergio had supplied Juan with the gun used in the shooting. The police determined that Juan could not have committed the shooting, because he was in custody at the time. The police approached Sergio with this information, and he gave a second statement. In his second statement, Sergio admitted that it was not Juan who fired the shots at 502 North Butrick but, rather, an individual named \u201cBaqweek.\u201d Sergio farther stated that, the day after the shooting, \u201cBaqweek\u201d told him that he fired four shots at the residence while riding in a black Lincoln with \u201cEmmanuel\u201d and \u201cSmokey.\u201d Sergio told police that he was familiar with the weapon used in the shooting, a \u201c.380,\u201d and that the gun always jammed after the third or fourth shot. Sergio stated that \u201cBaqweek\u201d told him that the gun jammed on the night of the shooting. We believe that the trustworthiness of Sergio\u2019s second account of the shooting was enhanced by the fact that he had little time to fabricate a story once the police made him aware that his initial account of the shooting could not be accurate. Moreover, as we pointed out above, Sergio was subject to cross-examination, but for whatever reason, defense counsel elected not to question Sergio regarding the second statement he made to police. Admittedly, Sergio did not make the statement under oath or from personal knowledge. However, the statement employs terminology such as \u201ccrib,\u201d \u201cshorty,\u201d and \u201cnation.\u201d These are the types of slang a young person would use. The statement also references certain individuals by their nicknames. Finally, we note that while Sergio never reaffirmed the contents of the second statement, he acknowledged during direct examination that he did make \u201cstatements\u201d to the police. Thus, we conclude that the trial court did not abuse its discretion in admitting Sergio\u2019s second statement as substantive evidence.\nD. Sufficiency of the Evidence\nDefendant also argues that the State failed to prove him guilty beyond a reasonable doubt of aggravated discharge of a firearm. \u201cThe State carries the burden of proving beyond a reasonable doubt each element of the charge against the defendant.\u201d People v. Banuelos, 345 Ill. App. 3d 970, 972 (2004). When reviewing a challenge to the sufficiency of the evidence, we consider 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. People v. Whirl, 351 Ill. App. 3d 464, 469 (2004). We note that this standard of review applies equally to jury and bench trials. People v. Arndt, 351 Ill. App. 3d 505, 512 (2004). \u201cIn applying this standard, our role is not to retry the defendant.\u201d Arndt, 351 Ill. App. 3d at 512-13. \u201cInstead, the trier of fact determines the weight to be given to the testimony of the witnesses, the witnesses\u2019 credibility, and the reasonable inferences to be drawn from the evidence.\u201d Arndt, 351 Ill. App. 3d at 513. \u201cWe will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the accused\u2019s guilt.\u201d People v. Zizzo, 301 Ill. App. 3d 481, 486 (1998).\nWe initially note that defendant does not expressly specify which of his three convictions he is challenging. However, it appears from his argument that defendant is disputing only the convictions of aggravated discharge of a firearm. A person commits the offense of aggravated discharge of a firearm when he \u201cknowingly or intentionally *** [discharges a firearm at or into a building he or she knows or reasonably should know to be occupied and the firearm is discharged from a place or position outside that building.\u201d 720 ILCS 5/24\u2014 1.2(a)(1) (West 2002). Normally, aggravated discharge of a firearm is a Class 1 felony. 725 ILCS 5/24 \u2014 1.2(b) (West 2002). However, when the offense is committed \u201cwithin 1,000 feet of the real property comprising a school,\u201d the offense is enhanced to a Class X felony. 725 ILCS 5/24 \u2014 1.2(b) (West 2002). In this case, defendant was charged with and convicted of both \u201csimple\u201d aggravated discharge of a firearm and \u201cenhanced\u201d aggravated discharge of a firearm. Defendant does not challenge the element that distinguishes the \u201cenhanced\u201d offense from the \u201csimple\u201d offense, and we do not address that issue in this decision.\nDefendant first claims that the State failed to prove that he was involved in the September 25, 2002, shooting. Defendant points out that he provided an alibi for his whereabouts on the night of September 25, 2002. We find that the evidence presented at trial was sufficient to prove beyond a reasonable doubt that defendant was the person who discharged the firearm at 502 North Butrick.\nThe trial court was presented with inconsistent accounts of the shooting from both Sergio and Gomez. However, we find that after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found beyond a reasonable doubt that defendant was the shooter. Zizzo, 301 Ill. App. 3d at 489. As we mentioned earlier, it is for the trier of fact to determine the weight to be given to the testimony of the witnesses, the witnesses\u2019 credibility, and the reasonable inferences to be drawn from the evidence. Arndt, 351 Ill. App. 3d at 513.\nHere, Sergio initially identified the shooter as an individual named \u201cJuan.\u201d Gomez, the person driving the car on the night of the shooting, also identified someone named \u201cJuan\u201d as the shooter, but indicated that an individual named \u201cQuick\u201d was also in the car. However, it later became apparent that \u201cJuan\u201d was in custody at the time of the shooting. When Sergio was approached with evidence that \u201cJuan\u201d had an alibi, he identified an individual named \u201cBaqweek\u201d as the shooter. Likewise, Gomez\u2019s second account of the shooting implicated defendant. At defendant\u2019s trial, the State was unable to effectively examine Sergio regarding the contents of his statement identifying defendant as the shooter. Gomez claimed that he did not know defendant, that he later recanted his identification of defendant as the shooter, and that he learned of defendant\u2019s given name from statements given to police by other individuals. However, when confronted with those statements at defendant\u2019s trial, Gomez acknowledged that defendant\u2019s given name was not mentioned in those statements. The trial court presumably found the testimony of Sergio and Gomez incredible. Based on our reading of the record, we cannot disagree. We note that Sergio\u2019s mother, Maria Ruiz, identified defendant as an individual who came to her house to retrieve a gun. Maria also identified defendant by the nickname \u201cBaquick\u201d or \u201cBaqweek.\u201d\nIn addition, although defendant called two witnesses who provided him with an alibi for the night of the shooting, the trier of fact could have found the alibi witnesses\u2019 testimony incredible. Both witnesses were related to defendant and neither one approached law enforcement authorities when they learned that their brother had been implicated in the shooting. See People v. Willoughby, 250 Ill. App. 3d 699, 719 (1993); People v. Garza, 92 Ill. App. 3d 723, 729 (1981) (noting that the familial ties of alibi witnesses may bring their veracity under scrutiny such that their testimony may be rejected).\nDefendant also claims that the State failed to show that the house that was shot at was occupied at the time of the shooting. We conclude, however, that the evidence was sufficient to prove beyond a reasonable doubt that the premises fired upon were occupied. The evidence demonstrated that at approximately 9:30 p.m. on Wednesday, September 25, 2002, the police received a report of a shooting at a house located at 502 North Butrick. The evidence further demonstrated that the house fired upon belonged to a member of a rival gang. When the police arrived only about one minute after receiving the report, six people were in the home. After viewing this evidence in the light most favorable to the prosecution, we conclude that any rational trier of fact could have found this essential element of the crime beyond a reasonable doubt. Whirl, 351 Ill. App. 3d at 469. Accordingly, we also reject defendant\u2019s challenge to the evidence on this basis.\nBefore concluding, we briefly address three matters raised by the State in its brief. First, the State points out that there are some inaccuracies in the mittimus. The mittimus states, incorrectly, that defendant pleaded guilty to counts I and III of the indictment. In fact, defendant was found guilty of counts II and IV of the indictment, following a bench trial. Second, the State asserts, and we agree, that defendant\u2019s conviction of and sentence for count 11^ aggravated discharge of a firearm, must be vacated because it is a lesser-included offense of count II, aggravated discharge of a firearm within 1,000 fe\u00e9t of real property comprising a school. See People v. King, 66 Ill. 2d 551, 566 (1977). Third, the State urges us to remand the cause for sentencing on the unlawful use of a weapon conviction. However, without a copy of the report of proceedings of the sentencing hearing, we cannot determine that the trial court erred in imposing no sentence. Thus, we decline to remand the cause. Nevertheless, pursuant to Supreme Court Rule 615(b)(1) (134 Ill. 2d R. 615(b)(1)), we modify the mittimus to reflect that defendant was found guilty of count II of the indictment, following a bench trial.\nIII. CONCLUSION\nFor the foregoing reasons, we vacate defendant\u2019s conviction of and sentence for aggravated discharge of a firearm but affirm as modified the remainder of the judgment of the circuit court of Lake County.\nAffirmed in part as modified and vacated in part.\nKAPALA and GILLERAN JOHNSON, JJ, concur.\nDefendant also suggests that the photo lineup in which Sergio identified defendant was improperly admitted. However, defendant devotes no analysis to this theory in his brief. Accordingly, we deem this contention waived. People v. O\u2019Connor, 313 Ill. App. 3d 134, 137 (2000).\nIn announcing its ruling on the admissibility of Sergio\u2019s two statements, the trial court refers only to a singular statement. We acknowledge that Sergio made two separate statements to police. Our decision concerns only Sergio\u2019s second statement.\nSection 115 \u2014 10.2(a) speaks in terms of \u201cequivalent circumstantial guarantees of trustworthiness.\u201d However, this standard has been found to be \u201ccomparable\u201d to the federal particularized-guarantees-of-trustworthiness standard referenced in Roberts. See People v. Smith, 333 Ill. App. 3d 622, 632-33 (2002). Moreover, although Crawford rendered the term \u201ccircumstantial guarantees of trustworthiness\u201d irrelevant to confrontation clause analysis with respect to testimonial statements, the term remains part of the statutory exception to the hearsay rule set forth in section 115 \u2014 10.2 of the Code. See Sharp, 355 Ill. App. 3d at 796-97 (discussing section 115 \u2014 10 of the Code); People v. Miles, 351 Ill. App. 3d 857, 865 (2004).\nIn People v. Campbell, 309 Ill. App. 3d 423, 433 (1999), the Fourth District stated that \u201cthe residual hearsay statute only applies when the declarant is unavailable and, by definition, no opportunity to cross-examine exists.\u201d However, as noted previously, the term \u201cunavailability\u201d as used in section 115 \u2014 10.2 does not carry its colloquial meaning. Rather, it is a term of art that is defined by statute. Moreover, as this case demonstrates, it is possible for a declarant to be \u201cunavailable\u201d for purposes of section 115 \u2014 10.2, but still be subject to cross-examination. Indeed, the Supreme Court has stated that being \u201cunavailable\u201d and \u201csubject to cross-examination\u201d under the Federal Rules of Evidence are \u201ctwo characterizations *** made for two entirely different purposes and there is no requirement or expectation that [the terms] should coincide.\u201d Owens, 484 U.S. at 563-64, 98 L. Ed. 2d at 961, 108 S. Ct. at 845.\nCount II of the indictment originally charged defendant with aggravated discharge of a firearm (enhanced) for shooting at a residence located at \u201c506 North Butrick.\u201d The indictment was amended at trial to reflect the correct address, \u201c502 North Butrick.\u201d", "type": "majority", "author": "JUSTICE GROMETER" } ], "attorneys": [ "Raymond G. Bendig, of Chicago, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer and Joseph S. Mikula, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DANIEL BUENO, Defendant-Appellant.\nSecond District\nNo. 2\u201404\u20140048\nOpinion filed May 20, 2005.\nRaymond G. Bendig, of Chicago, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Lawrence M. Bauer and Joseph S. Mikula, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0143-01", "first_page_order": 161, "last_page_order": 183 }