People v. Ramirez

2023 IL 128123

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 128123)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ANDREW RAMIREZ, Appellant.

Opinion filed May 18, 2023.

CHIEF JUSTICE THEIS delivered the judgment of the court, with opinion.

Justices Neville, Overstreet, Holder White, Cunningham, Rochford, and
O’Brien concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial in the circuit court of Cook County, defendant Andrew
Ramirez was convicted of possession of a defaced firearm (720 ILCS 5/24-5(b)
(West 2018)). On appeal, defendant challenged the sufficiency of the evidence on
the basis that the State failed to prove beyond a reasonable doubt that he knew the
serial number on the firearm was defaced. The appellate court affirmed, holding
 that the State was required to prove only that defendant knowingly possessed the
defaced firearm and not that he knew the firearm was defaced. 2021 IL App (1st)
191392-U, ¶¶ 27-28. For the following reasons, we reverse the judgment of the
appellate court and remand the cause to the circuit court for further proceedings
consistent with this opinion.

¶2 BACKGROUND

¶3 On May 10, 2018, at approximately 10:30 p.m., police executed a search
warrant at a home located at 3234 South Komensky Avenue in Chicago. The police
forcibly entered the residence after nobody answered. Once inside, officers saw
defendant’s mother at the bottom of the stairs and defendant descending from the
second floor. Defendant was detained and subsequently allowed to return upstairs,
where he retrieved his shoes from the foot of a single bed in one of the bedrooms.

¶4 After police searched the house, they recovered a 20-gauge Benelli shotgun, a
Mossberg shotgun, a 9-millimeter handgun, and ammunition. The Benelli shotgun
was recovered from under the mattress of the single bed in the room where
defendant had retrieved his shoes. From the same bedroom, police recovered mail
bearing defendant’s name and the address of the home. At trial, Adolfus Bolanos,
one of the officers who executed the warrant, testified that the serial number on the
Benelli shotgun had been “scratched off.”

¶5 Defendant was taken into custody, provided Miranda warnings (see Miranda v.
Arizona, 384 U.S. 436 (1966)), and made a statement. He told police that he bought
the Benelli shotgun from a coworker for $100 and lunch.

¶6 The State proceeded to trial on a single count, charging defendant with
possession of a 20-gauge Benelli shotgun whose serial number had been “changed,
altered, removed or obliterated” in violation of section 24-5(b) of the Criminal Code
of 2012 (Code) (720 ILCS 5/24-5(b) (West 2018)). The Benelli shotgun recovered
by police was not introduced at trial. The parties stipulated, however, that the serial
number on the shotgun “had been changed, altered, removed, or obliterated.” The
State did not present any direct evidence that defendant knew that the shotgun’s
serial number was defaced. Defendant did not testify or call any witnesses.

-2-
¶7 In finding defendant guilty, the trial court stated:

“I do believe that the State’s evidence proves conclusively and beyond a
reasonable doubt that [defendant] possessed that weapon. The next question is
whether he had to have possessed it knowing that it had *** a defaced serial
number. And pursuant to People v. Lee, [2019 IL App (1st) 162563], the State
does not have to prove that. They only have to prove that he knowingly
possessed the firearm and that the firearm had a defaced or obliterated serial
number. There will be a finding of guilty.”

¶8 The trial court subsequently denied defendant’s posttrial motions and sentenced
him to two years’ probation.

¶9 The appellate court affirmed the conviction and rejected defendant’s contention
that the State failed to prove beyond a reasonable doubt that he knew the serial
number on the firearm was defaced. 2021 IL App (1st) 191392-U, ¶¶ 27-28. Based
upon People v. Stanley, 397 Ill. App. 3d 598 (2009), and its progeny, the court
concluded that the State was required to prove only that defendant knowingly
possessed the defaced firearm and not that he knew that the firearm was defaced.
2021 IL App (1st) 191392-U, ¶ 21. Viewing the evidence presented at trial in the
light most favorable to the State, the court concluded that a reasonable trier of fact
could find that defendant constructively possessed the defaced firearm that was
recovered by police. Id. ¶ 23.

¶ 10 We allowed defendant’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Oct.
1, 2021).

¶ 11 ANALYSIS

¶ 12 Defendant contends that, to secure a conviction under section 24-5(b) of the
Code, the State was required to prove that he knew the firearm was defaced. He
asserts that his conviction must therefore be reversed because the State failed to
prove beyond a reasonable doubt that he knew the serial number on the Benelli
shotgun was defaced.

¶ 13 In addressing defendant’s sufficiency of the evidence argument, this court must
analyze the underlying provision of the Code. Our primary objective when

-3-
 construing a statute is to ascertain the intent of the legislature and give effect to that
intent. People v. Molnar, 222 Ill. 2d 495, 518 (2006). The best evidence of
legislative intent is the statutory language itself, which must be given its plain and
ordinary meaning. People v. Woods, 193 Ill. 2d 483, 487 (2000). Statutes must be
read as a whole, and all relevant parts should be considered. People v. Reed, 177
Ill. 2d 389, 393 (1997). This court may not depart from the language of the statute
by interjecting exceptions, limitations, or conditions tending to contravene the
purpose of the enactment. People v. Martinez, 184 Ill. 2d 547, 550 (1998). Our
review of matters of statutory interpretation is de novo. Id.

¶ 14 Section 24-5 of the Code is titled “Defacing identification marks of firearms.”
720 ILCS 5/24-5 (West 2018). Subsection (a) criminalizes the changing, altering,
removing, or obliterating of the serial numbers placed on any firearm by the
manufacturer or importer as a Class 2 felony. Id. § 24-5(a). The mental state
applicable to subsection (a) is specified as “knowingly or intentionally.” Id.
Defendant was convicted of possession of a defaced firearm in violation of
subsection (b), which provides: “A person who possesses any firearm upon which
any such importer’s or manufacturer’s serial number has been changed, altered,
removed or obliterated commits a Class 3 felony.” Id. § 24-5(b).

¶ 15 This court has not previously addressed whether possession of a defaced firearm
requires proof of a mens rea or whether the element(s) of section 24-5(b) include
both possession and defacement. The parties agree that, in contrast to subsection
(a), subsection (b), as written, contains no specific mens rea requirement. They
further agree that section 24-5(b) does not constitute an absolute liability offense.

¶ 16 Defendant asserts that knowledge of the defacement is, and must be, an element
of the offense. Otherwise, innocent conduct could be criminalized, and a person
who is unaware that a firearm’s identification marks have been defaced could be
convicted of a Class 3 felony. The State, however, relying upon Stanley and cases
that followed it, contends that knowledge of the firearm’s defacement is not an
element of the offense. Instead, the State argues that section 24-5(b) should be
interpreted by this court as requiring proof of “(1) knowing possession of a firearm
and (2) a defaced firearm.”

¶ 17 In Stanley, the defendant argued that the State failed to prove him guilty of
violating section 24-5(b) because there was no proof of his knowledge that the

-4-
 marks had been scratched off the shotgun that he possessed. Stanley, 397 Ill. App.
3d at 603. Alternatively, he argued that if the statute did not require proof of a
mental state, thereby imposing absolute liability, it would be unconstitutional as
tending to criminalize innocent conduct without a showing of a culpable mental
state. Id. After recognizing that the statute made no reference to a mens rea
requirement, the court examined the statutory guidelines in section 4-3 of the
Criminal Code of 1961 (720 ILCS 5/4-3 (West 2006)), which provides the default
rules for a culpable mental state. Stanley, 397 Ill. App. 3d at 605. Noting that the
legislature can create absolute liability for a felony, but only if it clearly indicates
its intent to do so, the appellate court recognized that such intent would not be
inferred from the mere absence of a mens rea requirement in the statute. Id. at 605-
07 (citing 720 ILCS 5/4-9 (West 2006)). The court found that section 24-5(b)
contained no such clear statement of intent. Id. at 607.

¶ 18 To avoid absolute liability, the Stanley court found that a mens rea must be
inferred into section 24-5(b) and concluded that the provision required the
defendant’s knowing possession of the firearm. Id. The court ultimately held the
knowledge requirement of the statute applied only to the possessory component of
the offense. Id. at 608. In reaching this holding, the court stated:

“[W]e discern that the elements of this offense are properly the mens rea and
the possession, that is, the State must prove the knowing possession of the
defaced firearm by defendant. The State, however, need not prove knowledge
of the character of the firearm. Though the defacement unmistakably bears upon
the commission of the offense, it is not an element of the offense.” Id. at 609.

¶ 19 Consequently, under Stanley, a defendant who knowingly possesses a firearm
takes the weapon as he finds it, and if it turns out to be defaced it will constitute a
violation of section 24-5(b), regardless of whether there was knowledge of the
defacement. Our appellate court has reaffirmed Stanley, and its reasoning, in
subsequent cases. See, e.g., People v. Lee, 2019 IL App (1st) 162563; People v.
Falco, 2014 IL App (1st) 111797.

¶ 20 In construing the provision before us, section 4-9 of the Code, “Absolute
Liability” is instructive. This section provides:

-5-
 “A person may be guilty of an offense without having, as to each element
thereof, one of the mental states described in Sections 4-4 through 4-7 if the
offense is a misdemeanor which is not punishable by incarceration or by a fine
exceeding $1,000, or the statute defining the offense clearly indicates a
legislative purpose to impose absolute liability for the conduct described.” 720
ILCS 5/4-9 (West 2018).

¶ 21 This court has instructed that the severity of the potential punishment is a
critical factor in ascertaining whether the legislature intended to create an absolute
liability offense. People v. Sroga, 2022 IL 126978, ¶ 20. That is because “ ‘ “[i]t
would be unthinkable to subject a person to a long term of imprisonment for an
offense he might commit unknowingly.” [Citation.] Therefore, “where the
punishment is great, it is less likely that the legislature intended to create an absolute
liability offense.” [Citations.]’ [Citation.]” Id. As the Stanley court correctly
concluded and the parties agree, there is no clear legislative intent to make a
violation of section 24-5(b), a Class 3 felony, an absolute liability offense, and thus
a mens rea must be inferred into the statute.

¶ 22 Pursuant to the Code, when a statute neither prescribes a particular mental state
nor creates an absolute liability offense, then either intent, knowledge, or
recklessness applies. See 720 ILCS 5/4-3(b), 4-4, 4-5, 4-6 (West 2018). Here,
section 24-5(b) is unmistakably a possessory offense, and this court has previously
held that, when a possessory offense does not prescribe a particular mental state
and is not an absolute liability offense, knowledge is the appropriate mental state.
See People v. Gean, 143 Ill. 2d 281, 288-89 (1991). For this mental state, section
4.5 of the Code provides, in pertinent part, that a person knows or acts knowingly
or with knowledge of:

“(a) The nature or attendant circumstances of his or her conduct, described
by the statute defining the offense, when he or she is consciously aware that his
or her conduct is of that nature or that those circumstances exist. Knowledge of
a material fact includes awareness of the substantial probability that the fact
exists.” 720 ILCS 5/4-5 (West 2018).

¶ 23 Under section 24-5(b), the State must prove defacement in order to secure a
conviction. The fact of the defacement is what makes the possession of the firearm
a crime. We find this essential fact is, and must be, an element of the offense.

-6-
 Section 4-3(b) of the Code provides that if a statute prescribes a mental state with
respect to the offense as a whole, without distinguishing among the elements
thereof, the prescribed mental state applies to each such element. Id. § 4-3(b).
Accordingly, we hold that section 24-5(b)’s implied mens rea of knowledge must
apply to both elements of the offense, possession and defacement.

¶ 24 As Justice Ellis wrote in his special concurrence in Lee, such an interpretation
is necessary to draw a line between lawful and unlawful conduct under the statute.
See Lee, 2019 IL App (1st) 162563, ¶ 87 (Ellis, J., specially concurring). If section
24-5(b) did not require knowledge of defacement, “the defendant’s otherwise
innocent conduct (knowingly possessing a firearm) would be transformed into a
felony by a circumstance (the defacement) of which he was unaware.” Id.
Consequently, to avoid imposing absolute liability, the statute must be construed to
require proof that the defendant knew the firearm was defaced. Id. We therefore
overrule Stanley and its progeny, which erroneously interpreted section 24-5(b) to
require only proof of knowledge of the possession for the State to meet its burden.

¶ 25 Our interpretation of section 24-5(b), requiring proof of knowledge of both
possession and defacement, is consistent with the reasoning we applied in Gean
when interpreting the “chop shop” statute at issue. Gean, 143 Ill. 2d at 287-88.
There, this court construed two different Class 4 felony provisions. Id. at 288. The
first provision prohibited possession “without authority” of certain Illinois Vehicle
Code items (such as certificates of title or salvage certificates (Ill. Rev. Stat. 1987,
ch. 95½, ¶ 4-104(b)(1))). Gean, 143 Ill. 2d at 283. The second provision prohibited
possession of these same items “ ‘without complete assignment.’ ” Id. at 283-84
(quoting Ill. Rev. Stat. 1987, ch. 95½, ¶ 4-104(b)(2)). Neither provision included
an explicit mens rea requirement. Id. at 287. Due to the lack of a clear legislative
intent and the severe penalties applicable to violations of the two sections, we found
that neither were absolute liability offenses and that a mens rea of knowledge would
be inferred. Id. at 288. After inferring a knowledge requirement into each
subsection, we held that the State had to prove that the defendant possessed these
certificates of title and salvage certificates knowing that he did not have authority
or knowing it was without complete assignment. Id. at 289. In other words, similar
to our construction here, the State had to prove that the defendant in Gean knew
that his possession of the certificate was “without authority” under one subsection

-7-
 and that the defendant knew that the certificates he possessed were “without
complete assignment” in the other subsection.

¶ 26 We further find that our construction of section 24-5(b) is necessary to avoid
this provision impermissibly burdening the federal constitutional right to keep and
bear arms. A statute that criminalizes the knowing possession of a firearm, without
more, would run afoul of the second amendment. See New York State Rifle & Pistol
Ass’n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022); McDonald v. City of Chicago,
561 U.S. 742 (2010); District of Columbia v. Heller, 554 U.S. 570 (2008). In Bruen,
the Court instructed, “[w]hen the Second Amendment’s plain text covers an
individual’s conduct, the Constitution presumptively protects that conduct. The
government must then justify its regulation by demonstrating that it is consistent
with the Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at ___,
142 S. Ct. at 2129-30.

¶ 27 It has long been recognized that defaced firearms are uniquely suited for use in
the commission of crimes. See United States v. Marzzarella, 614 F.3d 85, 95 (3d
Cir. 2010). Firearms that have been defaced so that they are untraceable by law
enforcement, thus, are not covered by the plain text of the second amendment
because they are not typically used by law-abiding citizens for lawful purposes.
Heller, 554 U.S. at 625 (“the Second Amendment does not protect those weapons
not typically possessed by law-abiding citizens for lawful purposes, such as short-
barreled shotguns”); see, e.g., United States v. Reyna, No. 3:21-CR-41 RLM-MGG,
2022 WL 17714376 (N.D. Ind. Dec. 15, 2022) (holding that the second amendment
does not extend to firearms with obliterated serial numbers because such firearms
are not typically possessed by law-abiding citizens for lawful purposes). We
conclude that construing section 24-5(b) to include a mens rea requirement that a
defendant know the firearm is defaced also ensures that the provision comports with
the second amendment.

¶ 28 Finally, defendant contends that this court should reverse his conviction
outright because there was no evidence presented at trial that he knew the Benelli
shotgun was defaced. In the alternative, he maintains that his conviction should be
reversed and remanded for a new trial because the trial court misapprehended the
law when it erroneously stated that the prosecution was not required to prove that
he knew the serial number on the firearm was defaced. Defendant argues that this

-8-
 error was not harmless, as the State claims, because the prosecution presented no
evidence of his knowledge of the defacement.

¶ 29 “The double jeopardy clause does not preclude retrial of a defendant whose
conviction is overturned because of an error in the trial proceedings leading to the
conviction.” People v. Casler, 2020 IL 125117, ¶ 57. “[A] second trial is permitted
when a conviction is reversed because of a posttrial change in law. Such a reversal
is analogous to one for procedural error and therefore does not bar retrial.” Id.

¶ 30 At the time of defendant’s trial, binding precedent from the First District
provided that the State did not have to present evidence that a defendant knew a
firearm was defaced. The trial court, in finding defendant guilty, specifically
recognized this precedent and found that the State “only ha[s] to prove that he
knowingly possessed the firearm and that the firearm had a defaced or obliterated
serial number.” The State asserts that, had it known of the need to establish that
defendant knew the shotgun was defaced, it might, inter alia, have introduced
photographs of the shotgun showing that the defacement was so clear that it could
not have escaped defendant’s notice.

¶ 31 Under the circumstances in this case, we find the proper remedy is to remand
for a new trial, where the State would have the opportunity to prove defendant knew
the firearm was defaced as required by this court’s construction of section 24-5(b).

¶ 32 CONCLUSION

¶ 33 For the foregoing reasons, we reverse the judgments of the appellate court and
the circuit court and remand the cause to the circuit court for further proceedings.

¶ 34 Judgments reversed.

¶ 35 Cause remanded.

-9-