People v. Grant , 2014 IL App (1st) 100174-B ( 2015 )

Illinois Official Reports
Appellate Court
People v. Grant, 2014 IL App (1st) 100174-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption CHARLES GRANT, Defendant-Appellant.
District & No. First District, First Division
Docket No. 1-10-0174
Filed December 15, 2014
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-12104; the
Review Hon. James B. Linn, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on Michael J. Pelletier, Thomas A. Lilien, and Kerry Goettsch, all of
Appeal State Appellate Defender’s Office, of Elgin, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Annette Collins, and Veronica Calderon Malavia, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Hoffman and Rochford concurred in the judgment and
opinion.
OPINION
¶1 The defendant-appellant Charles Grant was arrested in June 2009 on the front porch of his
residence at 10920 South Wabash Avenue, Chicago, Illinois (the Grant residence), after police
found him carrying a loaded handgun. The defendant was charged with four counts of violating
Illinois’s aggravated unlawful use of a weapon (AUUW) statute. 720 ILCS 5/24-1.6(a)(1)-(2),
(a)(3)(A), (a)(3)(C) (West 2008). Two of those counts related to the prohibition in section
24-1.6(a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(3)(A) (West 2008))
against carrying an “uncased, loaded and immediately accessible” firearm. Specifically, count
I charged the defendant with carrying such a weapon “at a time when he was not on his own
land, abode or fixed place of business” pursuant to section 24-1.6(a)(1), (a)(3)(A), and count
III charged the defendant with carrying such a weapon while on a public street in violation of
section 24-1.6(a)(2), (a)(3)(A). The remaining two counts against the defendant concerned
separate provisions of the AUUW statute which prohibit the carrying of a firearm by one who
“has not been issued a currently valid Firearm Owner’s Identification Card [(FOID card)].”
Count II alleged that the defendant lacked a valid FOID card while carrying a firearm while not
on his own land, abode, or place of business in violation of section 24-1.6(a)(1), (a)(3)(C), and
count IV alleged that the defendant had carried a firearm on a public street without a FOID
card in violation of section 24-1.6(a)(2), (a)(3)(C).
¶2 The circuit court of Cook County conducted a bench trial on September 23, 2009. Dan
Kasper, the Chicago police officer who arrested the defendant, testified that he and his partner,
Officer Mohammad, were on patrol in an unmarked police car on June 19, 2009 when they
received a report of “shots fired” in the vicinity of the Grant residence at 10:20 p.m. The
officers proceeded to “check[ ] out the neighborhood” of the reported gunfire. As the police car
neared the Grant residence, Officer Kasper observed the defendant standing on the sidewalk in
front of the residence. When the defendant saw the police car, he turned and ran toward the
residence. Officer Kasper saw a handgun in the defendant’s hand and exited the police car in
pursuit of the defendant. Officer Kasper testified that the defendant ran up the front stairs of the
house onto the porch and tried to enter the house. However, Officer Kasper was able to
apprehend the defendant on the front porch, where four or five other men were sitting. Officer
Kasper recovered a loaded .38-caliber revolver from the defendant’s right hand.
¶3 The defendant was placed into custody and spoke with the officers after he was read his
Miranda rights. According to Officer Kasper, the defendant stated he had a handgun for
protection because there had been a lot of shooting in the area. The defendant told the officers
that he bought the handgun for $75 from a “crack head” about three months earlier. Officer
Kasper also testified that he asked the defendant if he had a current valid FOID card, and the
defendant responded that he did not. At no point did the defendant present a valid FOID card.
¶4 Officer Mohammad’s testimony corroborated Officer Kasper’s recollection of events.
Officer Mohammad testified that he and Officer Kasper responded to a radio call of “shots
fired” in the vicinity of the Grant residence. Officer Mohammad testified that he observed the
defendant standing on the sidewalk in front of the residence with a handgun in his right hand
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and that the defendant turned and ran toward the residence. Officer Mohammad corroborated
that Officer Kasper exited the police car, apprehended the defendant on the front porch of the
residence, and recovered a handgun from the defendant. The parties stipulated that police
recovered a loaded .38-caliber handgun from the defendant.
¶5 Junior Grant (Junior), the defendant’s younger brother, testified that at 10 p.m. on the night
of the defendant’s arrest, he, their brother Edward, and two other friends were sitting on the
porch of the Grant residence drinking with the defendant. Contrary to the arresting officers’
testimony, Junior stated that the defendant was on the porch the whole time and did not go to
the sidewalk. According to Junior, the defendant had a cell phone in one hand and a drink in the
other. Junior testified that a police officer approached the porch with his gun drawn, searched
the defendant, and found a weapon.
¶6 The defendant testified that on the evening of his arrest he was on the porch of the Grant
residence with his brothers celebrating his brother Edward’s birthday. Around 10:20 p.m., the
group heard gunshots in the area. The defendant testified that 5 or 10 minutes later, he was
talking on his cellular phone when the police “rushed [the] porch.” The defendant stated that he
was holding his cellular phone in one hand and a beverage in his other hand. The defendant
testified that he asked the police if he could go inside the house to get his “ID.” The defendant
stated that a police officer threw him against a wall, searched him, and found a handgun that he
was carrying in his pocket.
¶7 The defendant acknowledged in his testimony that he told the police that he purchased the
handgun for his own protection because there had been shooting incidents in the
neighborhood. The defendant testified that he bought the handgun from a “crack head” for $75.
The defendant stated that on the night of his arrest he remained on the porch, was not on the
sidewalk, and denied that he had run from the police.
¶8 After hearing closing argument from defense counsel, the trial court made a general
finding that the defendant was guilty of violating the AUUW statute. On December 21, 2009,
the trial judge sentenced the defendant to 18 months of probation, in addition to statutory fines
and costs.
¶9 On January 6, 2010, the defendant filed a timely notice of appeal in this court. In that
appeal, the defendant argued that the AUUW statute’s prohibition against carrying an
“uncased, loaded and immediately accessible” firearm outside one’s home or place of business
was unconstitutional both on its face and as applied to the defendant. The defendant argued
that this portion of the statute violated the second amendment right to bear arms in light of the
United States Supreme Court’s decisions in District of Columbia v. Heller, 554 U.S. 570
(2008), and McDonald v. City of Chicago, 561 U.S. 742 (2010), which recognized that the
second amendment of the United States Constitution protects the right of citizens to bear arms
for self-defense. The defendant’s appeal also asked us to reexamine our supreme court’s
holding in Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), which held that a
village ordinance prohibiting the possession of handguns did not violate the Illinois
Constitution.
¶ 10 In a decision entered May 20, 2013, we affirmed the judgment of the circuit court that
entered a general guilty verdict with respect to all four charged AUUW counts. People v.
Grant, 2013 IL App (1st) 100174-U. With respect to the defendant’s argument that the AUUW
statute was unconstitutional as applied to him, we held that this challenge was not subject to
our review as the defendant had not raised the issue before the trial court. With respect to the
defendant’s facial challenge to the statutory provision on carrying “uncased, loaded and
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immediately accessible” firearms, we noted that a facial constitutional challenge must
establish that no set of circumstances exists under which the statute would be valid. We
concluded that the defendant had not met this standard, since the statutory provision at issue
had only restricted the manner in which firearms could be carried rather than prohibiting them
altogether. Moreover, we noted that our court had repeatedly held that the AUUW statute was
constitutional. We also declined to reexamine the Illinois Supreme Court’s decision in
Kalodimos, recognizing that we lacked the authority to overrule decisions of our supreme
court.
¶ 11 The defendant subsequently petitioned for rehearing. Pending that petition, the Illinois
Supreme Court issued its decision in People v. Aguilar, 2013 IL 112116. In Aguilar, the court
determined that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, in prohibiting possession
of an “uncased, loaded and immediately accessible” firearm outside the home, violated the
second amendment of the United States Constitution as construed by the United States
Supreme Court’s decisions in Heller and McDonald. Our supreme court agreed with the
reasoning of the Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), in
“concluding that the second amendment protects the right to possess and use a firearm for
self-defense outside the home.” Aguilar, 2013 IL 112116, ¶ 21. Since section 24-1.6(a)(1),
(a)(3)(A) “categorically prohibit[ed] the possession and use of an operable firearm for
self-defense outside the home,” our supreme court concluded that it “amount[ed] to a
wholesale statutory ban on the exercise of a personal right that is specifically named in and
guaranteed by the United States Constitution, as construed by the United States Supreme
Court.” Id. Thus, the Aguilar decision held that the section of the AUUW statute underlying
count I against the defendant was unconstitutional. However, the supreme court emphasized
that its holding was “specifically limited to the Class 4 form of AUUW, as set forth in section
24-1.6(a)(1), (a)(3)(A), (d)” but made no finding “with respect to the constitutionality or
unconstitutionality of any other section or subsection of the AUUW statute.” Id. ¶ 22 n.3.
¶ 12 On January 29, 2014, our supreme court issued a supervisory order vacating this court’s
May 20, 2013 judgment on the defendant’s appeal and instructing us to “reconsider the matter
in light of” Aguilar “to determine if another outcome is warranted.” People v. Grant, No.
116216 (Ill. Jan. 29, 2014) (supervisory order). We subsequently permitted the parties to file
supplemental briefing.
¶ 13 In his supplemental brief, the defendant argues that the reasoning of Aguilar invalidates all
sections of the AUUW statute of which he was convicted, “as each is centered upon possession
of an uncased, loaded, and immediately accessible firearm while not on one’s own land, abode
or fixed place of business.” The defendant argues that “the essential reasoning of Aguilar is
that the Second Amendment right extends outside the home, and that reasoning thus
invalidates all the Class 4 charges in this case.” Thus, although Aguilar explicitly reversed only
that portion of the AUUW statute underlying count I, the defendant contends that all of the
sections under which he was charged have been rendered unconstitutional.
¶ 14 The defendant further argues that, apart from count I’s unconstitutionality under Aguilar,
there was insufficient evidence to convict him on the three remaining alleged violations of the
AUUW statute. Specifically, the defendant argues the State did not present sufficient evidence
that he had not been issued a valid FOID card to support counts II and IV. Although conceding
he did not have a FOID card on his person when he was arrested, the defendant contends there
was no proof that he had not been issued a card as required to prove a violation of section
24-1.6(a)(1), (a)(3)(C) or (a)(2), (a)(3)(C) of the AUUW statute. Moreover, the defendant
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argues that his admission to not having a FOID card is insufficient to convict, relying on the
principle that there must be corroborating evidence independent of a defendant’s confession to
establish the commission, or “corpus delicti,” of the offense. Separately, the defendant argues
there was insufficient evidence that he carried a firearm on a “public street” as required under
section 24-1.6(a)(2) to support his conviction on count III.
¶ 15 Finally, apart from his second amendment and insufficient evidence arguments, the
defendant contends that the convictions under counts II and IV relating to the FOID card
requirement violate the “proportionate penalties” clause of the Illinois Constitution.
Specifically, he contends that, after the Aguilar holding, the elements comprising a violation of
the AUUW statute’s FOID-related provisions are now identical to the elements of a violation
of the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/2 (West 2012)).
The defendant claims that these crimes now consist of the same two elements, yet have
different penalties, as the AUUW conviction is a felony while a FOID Card Act violation is a
misdemeanor. The defendant thus argues that counts II and IV fail the “identical elements” test
and violate the Illinois Constitution.
¶ 16 In its supplemental brief, the State concedes that the Aguilar holding invalidates the
defendant’s convictions under counts I and III, as both relied on the prohibition against
carrying “uncased, loaded and immediately accessible” firearms in section 24-1.6(a)(3)(A)
that was held unconstitutional. However, the State maintains that Aguilar does not affect the
validity of the portion of the AUUW statute prohibiting the carrying of a firearm without a
valid FOID card, section 24-1.6(a)(3)(C), which supports counts II and IV. The State also
argues there was more than sufficient evidence to establish that the defendant had not been
issued a valid FOID card and that he carried a firearm on a “public street” without such a card.
With respect to the “proportionate penalties” challenge, the State contends that we do not have
jurisdiction to consider this argument because it is outside the scope of the supreme court’s
supervisory order. The State alternatively argues there is no proportionate penalties violation
because a conviction under the AUUW statute’s FOID-related provisions requires proof of
different elements than those required by the FOID Card Act. Thus, the State contends that we
should affirm the defendant’s convictions on both counts II and IV. The State urges that the
defendant should be sentenced with respect to count IV, arguing that it is the more serious of
the two offenses.
¶ 17 ANALYSIS
¶ 18 We first note that we have jurisdiction pursuant to the supervisory order of our supreme
court issued on January 29, 2014, directing us to vacate our May 20, 2013 judgment on the
defendant’s initial appeal and directing us “to reconsider the matter in light of” the Aguilar
decision “to determine if another outcome is warranted.” People v. Grant, No. 116216 (Ill. Jan.
29, 2014) (supervisory order). We have now reconsidered the defendant’s appeal in light of
Aguilar as well as the parties’ supplemental briefing.
¶ 19 We hold, as conceded by the State, that the Aguilar decision applies to invalidate the
defendant’s convictions under counts I and III for possessing a weapon that was “uncased,
loaded and immediately accessible” in violation of sections 24-1.6(a)(1), (a)(3)(A) and
24-1.6(a)(2), (a)(3)(A) of the AUUW statute. In Aguilar, our supreme court reversed a
conviction under section 24-1.6(a)(1), (a)(3)(A), the same provision underlying count I against
the defendant in this case. That provision made it a felony for an individual to possess an
“uncased, loaded and immediately accessible” firearm “except when on his or her land or in his
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or her abode or fixed place of business.” 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). The
supreme court relied upon the Seventh Circuit Court of Appeals’ holding in Moore v.
Madigan, 702 F.3d 933 (7th Cir. 2012), that this portion of the statute was “effectively ‘a flat
ban on carrying ready-to-use guns outside the home’ [citation] and that, as such, it violates the
second amendment right to keep and bear arms.” Aguilar, 2013 IL 112116, ¶ 19 (quoting
Moore, 702 F.3d at 940). Our supreme court adopted Moore’s holding that “the [second]
amendment confers a right to bear arms for self-defense, which is as important outside the
home as inside” and thus “Illinois’ flat ban on carrying ready-to-use guns outside the home, as
embodied in the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d), is unconstitutional on its
face.” (Internal quotation marks omitted.) Aguilar, 2013 IL 112116, ¶ 19.1
¶ 20 Aguilar thus expressly invalidated the specific portion of the AUUW statute that is the
basis of count I against the defendant, section 24-1.6(a)(1), (a)(3)(A). We also hold, as
acknowledged by the State, that count III for violation of section 24-1.6(a)(2), (a)(3)(A) is
likewise invalidated by Aguilar. Count III, like count I, implicates the statutory language in
subsection (a)(3)(A) barring possession of an “uncased, loaded and immediately accessible”
firearm. The only difference between count I and count III is that whereas the first count
concerns possession “on or about [one’s] person or in any vehicle,” the latter count applied to
the carrying of firearms “upon any public street, alley, or other public lands.” Thus, the
statutory provision raised in count III, like the provision raised in count I, similarly amounts to
a “flat ban on carrying ready-to-use guns outside the home” and thus violates the second
amendment. (Internal quotation marks omitted.) Aguilar, 2013 IL 112116, ¶ 19. Under
Aguilar, the AUUW statutory provisions underlying both counts I and III amount to an
unconstitutional ban on firearms outside the home. Thus, we reverse the defendant’s
convictions on counts I and III.
¶ 21 We turn to the remaining two counts, II and IV, both of which concern the defendant’s
alleged lack of a valid FOID card at the time of his arrest. Count II alleged that the defendant
violated section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute, which makes it a crime for a
person to carry a firearm outside of one’s own land, abode, or fixed place of business if “the
person possessing the firearm has not been issued a currently valid [FOID] card.” Count IV
alleges that the defendant violated section 24-1.6(a)(2), (a)(3)(C) of the AUUW statute by
carrying or possessing a firearm “upon any public street, alley, or other public lands” without
having been issued a valid FOID card.
¶ 22 First, we address the defendant’s contention that these FOID-related provisions were
invalidated by Aguilar. The defendant argues that “the reasoning of Aguilar should apply to
each of the [AUUW statute’s] subsections at issue in this case,” including the AUUW statute’s
FOID provisions, as “the raison d’être for each is to criminalize the possession of an uncased,
loaded, and immediately accessible firearm while not on one’s own land, abode, or fixed place
1
Notably, our supreme court emphasized that “in concluding that the second amendment protects
the right to possess and use a firearm for self-defense outside the home, we are in no way saying that
such a right is unlimited or is not subject to meaningful regulation.” Id. ¶ 21. Indeed, our supreme court
noted the United States Supreme Court’s statement in Heller that the recognition of a second
amendment right to self-defense did not “ ‘cast doubt on longstanding prohibitions on the possession of
firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places
*** or laws imposing conditions and qualifications on the commercial sale of arms.’ ” Id. ¶ 26 (quoting
Heller, 554 U.S. at 626-27).
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of business, i.e. outside of the home.” This contention is simply incorrect. Only counts I and III
involve the prohibition in section 24-1.6(a)(3)(A) on carrying an “uncased, loaded and
immediately accessible” firearm that was found unconstitutional in Aguilar. Counts II and IV
do not rely whatsoever on this invalidated provision; rather, they concern section
24-1.6(a)(3)(C)’s independent provisions regarding firearm possession by persons who have
not been issued a valid FOID card. Indeed, as recognized in the defendant’s reply brief, this
court has already held that the FOID requirement in section 24-1.6(a)(3)(C) of the AUUW
statute is severable from the Aguilar holding. People v. Henderson, 2013 IL App (1st) 113294,
¶ 22 (“we find that the invalidity of subsection (a)(3)(A) by Aguilar is not fatal to the balance
of the statute, particularly the FOID card requirement in subsection (a)(3)(C)”). In another
post-Aguilar decision, this court also held that subsection (a)(3)(C) does not violate the second
amendment because the FOID card requirement is a reasonable restriction on firearm
possession. See People v. Taylor, 2013 IL App (1st) 110166, ¶ 32 (“Because the restriction in
section 24-1.6(a)(1), (a)(3)(C) is limited to those lacking a FOID card and is not a flat ban, we
decline to extend the holding of Aguilar to this section of the AUUW statute.”). Indeed, the
FOID card requirement is consistent with Aguilar’s recognition that the second amendment
right to possess firearms is still “subject to meaningful regulation.” Aguilar, 2013 IL
112116, ¶ 21. We concur with the reasoning of our decisions in Henderson and Taylor and
reject the defendant’s contention that Aguilar invalidates his conviction with respect to counts
II and IV.
¶ 23 Alternatively, the defendant argues that there was insufficient evidence to support the trial
court’s guilty findings with respect to counts II and IV. First, he contends that there was not
sufficient evidence establishing that he had not been issued a currently valid FOID card at the
time of his arrest. The defendant emphasizes our supreme court’s holding that section
24-1.6(a)(3)(C) of the AUUW statute does not require the physical carrying of a FOID card,
but only requires that a valid card has been “issued” to an individual possessing firearms.
People v. Holmes, 241 Ill. 2d 509, 522 (2011) (“The language of the unlawful use of weapons
statute only contemplates that a FOID card has been issued to that individual. There is no
requirement in the unlawful use of weapons statute that an individual have his or her FOID
card or other similar permit in his or her possession.”). The defendant acknowledges Officer
Kasper’s testimony that the defendant admitted that he did not have a FOID card, but he asserts
this is insufficient proof that one had not been issued to him.
¶ 24 The applicable standard of review is well settled. “When considering a challenge to a
criminal conviction based on the sufficiency of the evidence, the relevant question on appeal is
whether, after reviewing 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. Jackson, 2012 IL App (1st) 092833, ¶ 22 (citing People v. Hall, 194 Ill. 2d
305, 329-30 (2000)). The evidence “must be considered in the light most favorable to the
prosecution,” which means “the reviewing court must allow all reasonable inferences from the
record in favor of the prosecution.” (Internal quotation marks omitted.) People v. Wheeler, 226
Ill. 2d 92, 116-17 (2007). “Circumstantial evidence is sufficient to sustain a criminal
conviction, provided that such evidence satisfies proof beyond a reasonable doubt of the
elements of the crime charged.” People v. Hall, 194 Ill. 2d 305, 330 (2000). A reviewing court
“is not required to search out all possible explanations consistent with innocence or be satisfied
beyond a reasonable doubt as to each link in the chain of circumstances. On the contrary, we
must ask, after considering all of the evidence in the light most favorable to the prosecution,
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whether the *** evidence [in the record] could reasonably support a finding of guilt beyond a
reasonable doubt.” Wheeler, 226 Ill. 2d at 117-18.
¶ 25 Here, the only evidence at trial referring to whether the defendant had a FOID card was the
following testimony of Officer Kasper on direct examination:
“Q. Officer, did you ask the defendant if he had a current valid FOID card?
A. Yes.
Q. Did he state he had one?
A. He said he did not.
Q. Did he ever at any point in time present you with a current valid firearms owner
identification card?
A. No.”
The defendant’s attorney did not cross-examine Officer Kasper on this point.
¶ 26 The defendant acknowledges Officer Kasper’s testimony but argues that “at most, this
testimony shows that the defendant did not have a FOID card on his person, not that one had
not been issued to him.” (Emphases added.) We disagree with the defendant’s narrow
interpretation of the trial testimony. The officer’s question to the defendant was clearly not
limited to inquiring if the defendant literally had a FOID card on his person. Rather, the
testimony was that Officer Kasper asked the defendant “if he had a current valid FOID card,”
and the defendant responded that “he did not.” While the scope of this question would certainly
include whether the defendant was literally carrying a FOID card, the inquiry whether the
defendant “had a valid FOID card” can also be reasonably interpreted as asking whether the
defendant owned or had been issued a valid FOID card, regardless of whether or not he was
carrying it on his person at the time. Indeed, had the defendant in fact been issued a valid FOID
card that was not on his person at that moment, it would be reasonable to infer that he would
have attempted to explain this rather than simply responding that “he did not” have a valid
FOID card, as Officer Kasper testified.2 It defies common sense to accept the defendant’s
argument as it would suggest that he inexplicably passed up an opportunity to explain that he
did in fact have a valid FOID card. This explanation made in response to Officer Kasper’s
question would have allowed him to extricate himself from what was, clearly, serious trouble
for him. Viewing the evidence in the light most favorable to the prosecution, the trial court
could reasonably interpret this testimony as evidence that the defendant had not been issued
and did not possess a valid FOID card either on his person or anywhere else at the time of his
arrest.
¶ 27 The defendant also argues that Officer Kasper’s testimony is insufficient under the
principle that a defendant may not be convicted of a crime based solely on his confession. The
defendant argues that because the State failed to present evidence independent of his
statements to police, the State could not have proved the commission, or corpus delicti, of the
offense, i.e., that the defendant had not been issued a valid FOID card at the time of his arrest.
2
Although the defendant testified that during the arrest he asked the police if he could “go in the
house to get my ID,” there was no clarification at trial as to what type of “ID” the defendant allegedly
referred to. In any case, the trial court as finder of fact could certainly find that Officer Kasper’s
testimony that the defendant admitted to not having a valid FOID card was more credible than the
defendant’s interpretation.
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¶ 28 Our supreme court has explained that “proof of an offense requires proof of two distinct
propositions or facts beyond a reasonable doubt: (1) that a crime occurred, i.e., the corpus
delicti; and (2) that the crime was committed by the person charged.” People v. Sargent, 239
Ill. 2d 166, 183 (2010). “[P]roof of the corpus delicti may not rest exclusively on a defendant’s
extrajudicial confession, admission, or other statement. [Citation.] Where a defendant’s
confession is part of the proof of the corpus delicti, the prosecution must also adduce
corroborating evidence independent of the defendant’s own statement.” Id. Although there
must be some evidence “independent of the confession, tending to show the crime did occur,
that evidence need not, by itself, prove the existence of the crime beyond a reasonable doubt.”
Id. Rather, “the corroborating evidence may be considered together with the confession to
determine whether the crime *** ha[s] been proven beyond a reasonable doubt.” Id.
¶ 29 Here, the defendant contends that “[the defendant’s] statement to the police was the only
evidence relating to a FOID” card and thus “there is insufficient proof of corpus delicti” for
counts II and IV. We disagree and find that there was corroborating evidence apart from the
defendant’s admission. We note that, independent of any statement by the defendant, Officer
Kasper testified that no FOID card was found on defendant’s person and the defendant never
presented one, even when the officer inquired whether he possessed one. Indeed, at trial the
defendant did not dispute Officer Kasper’s testimony that he never produced a valid FOID
card, and at no time during Officer Kasper’s questioning of defendant, did he ever suggest that
a FOID card had in fact been issued to him. Nor did he request, as one would reasonably
expect, an opportunity to retrieve and produce the card, if he in fact had one somewhere other
than on his person.
¶ 30 The defendant’s supplemental brief suggests that the State was required to introduce
affirmative evidence that no valid FOID card had been issued despite his admission and
Officer Kasper’s unrebutted testimony that the defendant produced no card and none was
found. The law in Illinois does not require the State to prove a negative and we decline to do so
in this case. See Henderson, 2013 IL App (1st) 113294, ¶ 36 (“Because the trial court also
found defendant guilty *** under section 24-1.6(a)(2), (a)(3)(C) *** and defendant
acknowledged that he did not have a FOID card on his person at the time of the offense
[citation], we remand the cause to the trial court for imposition of sentence on that count.”).
Considering that we are obligated to review the evidence in the light most favorable to the
prosecution, the undisputed testimony that the defendant in this case failed to produce a FOID
card was sufficient evidence corroborating the defendant’s explicit admission that he did not
have a valid FOID card. Given this evidence, a rational trier of fact could conclude beyond a
reasonable doubt that the defendant had not been issued and did not have a valid FOID card at
the time of his arrest.
¶ 31 Moreover, although not necessary to affirm the conviction on counts II and IV, we agree
with the State that there was additional circumstantial evidence corroborating the defendant’s
statement to police that he did not have a current valid FOID card. Specifically, the State cites
Officer Kasper’s testimony that the defendant told him that he had purchased the handgun for
$75 from a “crack head” three months prior to the arrest, and that the defendant confirmed this
in his own courtroom testimony. The State also cites the arresting officers’ testimony that the
defendant turned and ran from the police as circumstantial evidence of guilt.
¶ 32 Considering that all reasonable inferences in the record must be made in the prosecution’s
favor, we agree with the State that the defendant’s admission that he purchased the handgun
from a “crack head” rather than from a licensed firearms dealer could lead to a reasonable
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inference that it was unlikely that the defendant had been issued a valid FOID card, as would
be necessary to complete a legitimate purchase. The illegal origin of the gun certainly could be
regarded by the trier of fact as evidence corroborating the defendant’s statement that he did not
possess a valid FOID card when he was arrested after buying the gun from the “crack head.”
¶ 33 Similarly, although the defendant disputed the police officers’ recollection of events, it can
be inferred that the trial court credited the testimony of Officers Kasper and Mohammad that
the defendant fled when they approached. “A trier of fact may infer consciousness of guilt
from evidence of a defendant’s flight [from] the police.” People v. Williams, 266 Ill. App. 3d
752, 760 (1994) (citing People v. Nightengale, 168 Ill. App. 3d 968, 972 (1988)); see also
People v. Hart, 214 Ill. 2d 490, 519 (2005) (“[W]e believe defendant’s flight and resistance
upon apprehension constitute circumstances from which the trier of fact could infer
consciousness of guilt.”). The defendant’s flight thus supported an inference that the defendant
knew that he possessed the handgun illegally. A finder of fact could likewise infer that
someone with a valid FOID card would not have reason to flee from police while carrying a
handgun. Thus, we conclude there was ample evidence corroborating the defendant’s
out-of-court statement and reject the defendant’s argument that the State could not establish
the corpus delicti of the offense underlying counts II and IV. We likewise find that the trial
court, as a rational trier of fact, could conclude beyond a reasonable doubt that the defendant
had not been issued a FOID card and did not have one at the time of his arrest.
¶ 34 We briefly address the defendant’s independent argument that there was insufficient
evidence that he possessed the firearm on “a public street” as required to support his conviction
under count IV for violating section 24-1.6(a)(2), (a)(3)(C) of the AUUW statute. At trial, the
defendant testified that he was on the porch of his residence at all relevant times. However,
Officer Kasper and Officer Mohammad both testified that they had observed the defendant on
the sidewalk in front of the residence. The defendant emphasizes that count IV charged him
with possessing a firearm “upon a public street, to wit: South Wabash” without a valid FOID
card. The defendant thus contends that, even assuming the truth of the police officers’
testimony, the State proved only that the defendant stood on a sidewalk, not a street.
¶ 35 We find this argument meritless, as the relevant language in section 24-1.6(a)(2) of the
AUUW statute specifies that a violation occurs when one “[c]arries or possesses on or about
his or her person, upon any public street, alley, or other public lands within the corporate
limits of a city, village or incorporated town *** any pistol, revolver, stun gun or taser or other
firearm.” (Emphasis added.) 720 ILCS 5/24-1.6(a)(2) (West 2008). The plain language of the
statute encompasses not only possession upon a “street,” but on any “other public lands within
the corporate limits” of a city. Officer Kasper testified he saw the defendant “standing on the
public sidewalk in front of 10920 South Wabash” immediately prior to the arrest, and Officer
Mohammad corroborated that testimony. As a public sidewalk certainly constitutes “public
land,” there was sufficient evidence for the trial court to conclude that the defendant possessed
the firearm on “public lands” without a FOID card. Thus, we need not independently address
whether the defendant’s presence on the sidewalk also falls within the statutory term “public
street.” In any event, we agree with the State that it would be “absurd for the FOID requirement
to be applied when one possesses a firearm on a thoroughfare and in an alley but not the
sidewalks,” and we will not presume the legislature intended such an illogical result.
¶ 36 We turn to the defendant’s argument that a conviction under count II or IV for failure to
have a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) or section 24-1.6(a)(2), (a)(3)(C)
of the AUUW statute would violate the proportionate penalties clause of the Illinois
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Constitution. The defendant argues that in light of the Aguilar decision, the elements
constituting violations of these subsections are now identical to the elements of a violation of
the FOID Card Act, which prohibits a person from “acquir[ing] or possess[ing]” any firearm
“without having in his or her possession a Firearm Owner’s Identification Card.” 430 ILCS
65/2 (West 2012). The defendant argues that the same two elements comprise a violation under
either statute: “(1) possession of a firearm, and (2) lack of a currently valid FOID card.” As a
violation of the AUUW statute is a Class 4 felony and a violation of the FOID Card Act is a
Class A misdemeanor, the defendant contends that the statutes impermissibly impose different
penalties for identical conduct.
¶ 37 In response, the State first contends that we cannot consider the defendant’s proportionate
penalties argument because it is outside the scope of our supreme court’s mandate in its
supervisory order instructing us to reconsider the defendant’s appeal in light of Aguilar. The
State further argues that, assuming we can review the question, the elements underlying the
AUUW violations under counts II and IV are distinguishable from those supporting a violation
of the FOID Card Act.
¶ 38 First, we address whether we can consider the defendant’s proportionate penalties
argument, which the defendant admits he did not raise prior to the supreme court’s supervisory
order. That order, after directing us to vacate our original judgment on the defendant’s appeal,
states: “The appellate court is further directed to reconsider the matter in light of this Court’s
decision in People v. Aguilar, 2013 IL 112116, to determine if another outcome is warranted.”
People v. Grant, No. 116216 (Ill. Jan. 29, 2014) (supervisory order). The State argues that this
order limits our review to the second amendment issues addressed in Aguilar and precludes us
from considering a proportionate penalties argument. The defendant contends that this
argument is subject to our review because it arises from the Aguilar holding. Specifically, the
defendant contends that Aguilar effected a “substantive change” in the elements required to be
proven under the FOID-related subsections of the AUUW statute. The defendant’s argument is
that possession of a firearm outside the home was prohibited by the AUUW statute until
Aguilar, and thus “[p]re-Aguilar violations of [subsections (a)(1), (a)(3)(C) and (a)(2),
(a)(3)(C)] required, in short, that a person possess a firearm: (1) while not in his abode; and (2)
while not having been issued a currently valid FOID card.” The defendant argues that by
establishing the right to possess firearms outside the home, Aguilar effectively removed the
“while not in his abode” element of the relevant sections of the AUUW statute and thus “the
effect of the Aguilar decision is to eliminate as irrelevant all but two elements of the offense of
AUUW: (1) possession of a firearm, and (2) lack of a currently valid FOID card.” The
defendant asserts that the FOID-related provisions of the AUUW statute now have “the same
elements as the FOID Card Act.”
¶ 39 The State argues that we lack jurisdiction to consider the defendant’s argument because the
supervisory order here was a “specific and unambiguous directive” to consider second
amendment issues raised by Aguilar, but “did not open the door for defendant to raise other
constitutional claims.” Thus, the State avers that “[a] ruling on [the defendant’s] proportionate
penalties claim would be outside the scope of [our] authority and void for lack of jurisdiction.”
We acknowledge that our review of a case as a result of a supervisory order is limited by any
instructions issued by our supreme court pursuant to the order. However, we do not find the
supervisory order in this case to be as narrow as urged by the State. The order directs us to
reconsider our prior ruling “in light of” Aguilar and to “determine if another outcome is
warranted,” but does not limit the scope of our review to second amendment issues raised in
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Aguilar or otherwise limit the issues we may consider. Moreover, the defendant contends that
his proportionate penalties challenge under the Illinois Constitution arises from the Aguilar
decision. Thus, we conclude that we have jurisdiction to consider the defendant’s
proportionate penalties challenge to his convictions under counts II and IV. Nevertheless, for
the reasons set forth below, we find that the defendant’s argument lacks merit.
¶ 40 In assessing the merits of the defendant’s challenge under the Illinois Constitution, we
recognize that “statutes carry a strong presumption of constitutionality. [Citation.] To
overcome this presumption, the party challenging the statute must clearly establish that it
violates the constitution.” People v. Sharpe, 216 Ill. 2d 481, 487 (2005). “A reviewing court
has ‘a duty to construe a statute in a manner that upholds its validity and constitutionality if it
reasonably can be done.’ ” People v. Hawkins, 409 Ill. App. 3d 564, 567 (2011) (quoting
People v. Graves, 207 Ill. 2d 478, 482 (2003)).
¶ 41 The proportionate penalties clause of the Illinois Constitution “requires the legislature to
set penalties ‘according to the seriousness of the offense.’ ” Sharpe, 216 Ill. 2d at 522 (quoting
Ill. Const. 1970, art. I, § 11). This constitutional provision “mandates that penalties be
proportionate to the offenses committed.” Hawkins, 409 Ill. App. 3d at 567. “[A] defendant
may raise two types of proportionate penalties challenges: (1) a penalty violates the
proportionate penalties clause if it is cruel, degrading, or so wholly disproportionate to the
offense committed as to shock the moral sense of the community; or (2) the proportionate
penalties clause is violated where offenses with identical elements are given different
sentences.” People v. Lauderdale, 2012 IL App (1st) 100939, ¶ 39 (citing Sharpe, 216 Ill. 2d at
521). Our supreme court has explained that applying different penalties for identical elements
violates the proportionate penalties clause because “[i]f the legislature determines that the
exact same elements merit two different penalties, then one of these penalties has not been set
in accordance with the seriousness of the offense.” Sharpe, 216 Ill. 2d at 522.
¶ 42 The defendant asserts that the elements comprising violations of the AUUW statutory
provisions underlying counts II and IV are identical to those supporting a violation of the FOID
Card Act, which provides: “No person may acquire or possess any firearm, stun gun, or taser
within this State without having in his or her possession a Firearm Owner’s Identification Card
previously issued in his or her name by the Department of State Police under the provision of
this Act.” 430 ILCS 65/2(a)(1) (West 2012). The defendant contends that violation of either
statute requires proof of the same two elements: (1) possession of a firearm and (2) lack of a
currently valid FOID Card. The violations of the AUUW statute at issue are Class 4 felonies,
yet a FOID Card Act violation is a Class A misdemeanor pursuant to section 14(b) of the
statute. The defendant thus claims the statutes impose different penalties for the same conduct.
¶ 43 The defendant’s argument is invalid as it relies upon an overly simplistic view of the
elements of each offense. First, the defendant’s assertion that the statutes contain an identical
“possession of a firearm” element is clearly erroneous upon examination of the statutory
language. The misdemeanor FOID Card Act offense is committed when a person “acquire[s]
or possess[es]” a firearm. 430 ILCS 65/2(a)(1) (West 2012). Notably, that subsection does not
elaborate on the manner of acquisition or possession that is required for an individual to be
subject to liability. For instance, the statute does not limit its application to those carrying a
firearm on the person as opposed to other possible forms of “possessing” a firearm. Indeed, the
disjunctive phrase “acquire or possess” indicates that the requirement to carry a FOID card
applies whenever one acquires a firearm, such as through purchase from a vendor, even if an
individual has not taken physical possession of the weapon.
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¶ 44 In contrast, the relevant sections of the AUUW statute require more specific factual
findings regarding the manner in which an individual possesses a firearm. A violation of
section 24-1.6(a)(1), (a)(3)(C), the basis for count II, occurs where one who has not been
issued a valid FOID card “carries” a firearm “on or about his or her person or in any vehicle or
concealed on or about his or her person.” Thus, to prove a violation, the State must establish
that the firearm was carried or concealed on the person of the defendant or in a vehicle. In
contrast, a misdemeanor FOID Card Act violation does not require that a firearm was ever
carried by the defendant or placed in a specific location. Moreover, this section of the AUUW
statute specifies that it does not apply when an individual is “on his or her land and or in his or
her abode or fixed place of business.” In contrast, there is no such limitation under the FOID
Card Act.
¶ 45 Similarly, a violation of section 24-1.6(a)(2), (a)(3)(C), the basis for count IV, requires that
one “[c]arries or possesses” a firearm “on or about his or her person, upon any public street,
alley, or other public lands within the corporate limits of a city, village or incorporated town,
except when an invitee thereon *** or except when on his or her own land or in his or her own
abode or fixed place of business.” 720 ILCS 5/24-1.6(a)(2) (West 2008). Again, this section
differs from the FOID Card Act with respect to the manner of possession as it requires proof
that the defendant carried a firearm “on or about [one’s] person.” Id. No such limitation is
contained in the FOID Card Act. In addition, this section of the AUUW statute applies only
where the firearm was possessed “upon any public street, alley, or other public lands” within a
city, village, or incorporated town. Id. This provision of the AUUW statute also specifies that a
violation does not occur when an individual is on his or her own land, abode, or fixed place of
business. The FOID Card Act contains no such geographical restrictions.
¶ 46 The statutory subsections underlying counts II and IV thus require the State to prove
additional elements regarding both the manner as well as the location of firearm possession
that are simply not required to establish the misdemeanor FOID Card Act violation.3 As the
FOID-related sections of the AUUW statute and the FOID Card Act do not require “identical
elements” to establish criminal liability, they do not violate the proportionate penalties clause
of the Illinois Constitution. The defendant’s challenge to his convictions under counts II and
IV thus fails.
¶ 47 Having concluded that the convictions under counts II and IV were constitutionally valid
and supported by sufficient evidence, we now turn to sentencing. The trial court sentenced the
defendant upon a general guilty verdict regarding all four counts, but only the convictions on
counts II and IV survive in light of Aguilar. As the two remaining convictions were based on
the same conduct, the defendant should be sentenced on the more serious of the two offenses.
See In re Angel P., 2014 IL App (1st) 121749, ¶ 84 (“Under the one-act, one-count doctrine,
the [defendant] should be sentenced on the most serious offense and the less serious offenses
vacated.”). The violations of the AUUW statute underlying counts II and IV are both Class 4
3
Moreover, the statutes also differ with respect to whether the defendant must have physical
possession of the FOID card. The FOID Card Act is violated whenever an individual possesses a
firearm “without having [a FOID card] in his or her possession” (430 ILCS 65/2(a)(1) (West 2012))
whereas a violation of the relevant AUUW statutory provisions occurs when “the person possessing the
firearm has not been issued a currently valid [FOID card].” 720 ILCS 5/24-1.6(a)(3)(C) (West 2008).
This distinction further distinguishes the elements of the offenses.
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felonies and thus implicate the same sentencing range. However, the State urges that the count
IV conviction for carrying a firearm on a public street without a FOID card in violation of
section 24-1.6(a)(2), (a)(3)(C) is the more serious offense because “society has a significant
interest in protecting the general public from individuals who unlawfully carry firearms in
public places.” Moreover, the defendant has stated his agreement with the State’s reasoning
that count IV is the more serious count.
¶ 48 Although we would otherwise remand for resentencing, this is a rare case where the State
and the defendant have not only agreed as to which count is the “most serious,” both have also
requested that we enter judgment on that count instead of remanding to the trial court. The
parties have indicated to this court their agreement that remanding for resentencing could not
have any practical effect in this case and thus would not be an effective use of judicial
resources. Resentencing at this point would not actually benefit the defendant, as he has
already completed the term of probation originally imposed by the trial court after its general
guilty verdict on all four counts. That is, even if we were to remand for resentencing in light of
our order vacating the convictions on counts I and III, any new, lesser sentence imposed by the
trial court would be moot in light of the probation already served. In this situation, we agree
with the State and the defendant that remanding for resentencing is unnecessary and would not
be an effective use of the time and resources of the parties or the court. Accordingly, for the
reasons discussed we enter judgment and sentence on the count IV conviction only. The
sentence imposed by the trial court shall stand.
¶ 49 For the foregoing reasons, we reverse the convictions on counts I and III but affirm the
convictions on counts II and IV and enter judgment and sentence on count IV.
¶ 50 Affirmed in part and reversed in part.
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