2014 IL App (1st) 100174-B
FIRST DIVISION
DECEMBER 15, 2014
No. 1-10-0174
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
) Cook County
Plaintiff-Appellee, )
) No. 09 CR 12104
v. )
)
CHARLES GRANT, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
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' 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
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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
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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 and
that the defendant turned and ran towards 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
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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.
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¶ 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 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
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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
(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
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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 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
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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 (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
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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 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"
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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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'etre 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 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
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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.
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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, whether the *** evidence [in the
record] could reasonably support a finding of guilt beyond a reasonable doubt." Wheeler, 226
Ill. 2d at 117-18.
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¶ 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
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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.
¶ 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
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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"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
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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 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
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(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
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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 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.
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¶ 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 (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
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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
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
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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
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a FOID Card Act violation is a Class A misdemeanor pursuant to section 65/14(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.
¶ 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.
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¶ 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.
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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¶ 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
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
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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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People v. Grant
Court: Appellate Court of Illinois
Date filed: 2014-12-15
Citations: 2014 IL App (1st) 100174-B
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