People v. Griffis

NOTICE 2023 IL App (4th) 220878-U
This Order was filed under
FILED
Supreme Court Rule 23 and is June 28, 2023
NO. 4-22-0878
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Peoria County
RAVANNAH L. GRIFFIS, ) No. 21CF296
Defendant-Appellant. )
) Honorable
) Katherine S. Gorman,
) Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.
Justices Cavanagh and Lannerd concurred in the judgment.

ORDER

¶1 Held: (1) The trial court did not abuse its discretion in allowing Facebook messages into
evidence, as the State presented sufficient authenticating evidence the messages
were a conversation between defendant and another person. (2) The appellate
court modified the sentencing order to allow an individual with a valid firearm
owner’s identification (FOID) card to retrieve one of two confiscated guns when
trial counsel rendered ineffective assistance in conceding forfeiture of the second
gun, which was not contraband.

¶2 In June 2021, the State charged defendant, Ravannah L. Griffis, with criminal

trespass to residence (720 ILCS 5/19-4(a)(2) (West 2020)), criminal damage to property (720

ILCS 5/21-1(a)(1) (West 2020)), and aggravated battery (720 ILCS 5/12-3.05 (West 2020)). The

charges alleged defendant entered the residence of Tishana Currie without authority, hit Currie

with a gun, and damaged a doorway and car window. During defendant’s arrest, police seized

two guns.
¶3 During the August 16, 2022, bench trial, the trial court allowed an exhibit

consisting of a photo of Facebook messages over defendant’s objection. The court found

defendant guilty. As part of its sentencing order, and with the State’s agreement, the court

allowed the seized guns to be released to an individual with a valid firearm owner’s

identification (FOID) card. The State filed a motion to reconsider the order allowing release of

the guns. Defendant’s counsel conceded the issue, and the court granted the motion.

¶4 On appeal, defendant contends the State failed to properly authenticate the

Facebook messages and trial counsel was ineffective for conceding forfeiture of the second gun

seized by police. We affirm but modify the sentencing order to allow an individual with a valid

FOID card to retrieve the second gun.

¶5 I. BACKGROUND

¶6 The State charged defendant in connection with a May 27, 2021, incident,

alleging defendant forced her way into Currie’s residence, causing damage to a door, struck

Currie with a teal-colored gun, and shattered the windshield of Currie’s car with a potted plant.

¶7 At trial, Currie testified her brother was the father of one of defendant’s children.

On May 27, 2021, she had given her brother a ride earlier in the day. Currie stated defendant and

her brother were “having problems” and indicated Currie’s sister also had a disagreement with

defendant.

¶8 At about 11:30 p.m., Currie heard banging on her front door, and someone rang

the doorbell. Currie could also hear defendant yelling but could not understand what she said.

When Currie opened the door, defendant tried to force her way in, causing damage to the door.

Currie tried to shut the door, but defendant grabbed her and tried to fight with her. Currie said

she tried not to hit defendant because defendant was pregnant. Something hit Currie on the head,

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and she saw a teal gun drop to the floor. Currie identified the State’s exhibit No. 10 as a photo of

the teal gun defendant dropped.

¶9 Curried yelled at defendant to “get out.” Defendant’s sister and brother arrived,

and defendant left the house. Currie went outside and saw the windshield of her car was broken

and a plant “was all over the *** porch and stuff.” After defendant left, Currie called the police.

Currie found a phone in the location where defendant tried to fight with her, and she gave it to

the police.

¶ 10 Currie testified, after the incident, she engaged in a text message conversation

with defendant, who wanted Currie to drop the charges in exchange for repairing Currie’s

windshield. Currie agreed because she needed her car for work and could not drive it with the

windshield broken. However, defendant never paid for the window.

¶ 11 Currie identified the State’s exhibit No. 11 as an image of an undated text

message exchange between herself and defendant. In it, an individual Currie identified as

defendant stated she needed her phone and inquired about the amount to fix the windshield.

Currie replied the police had the phone and indicated her agreement to not press charges if

defendant gave her money for the windshield. Currie also told defendant in the message she did

not hit defendant because defendant was pregnant.

¶ 12 Currie also identified the State’s exhibit No. 12 as screenshots of a message from

a Facebook profile page, from “Vanna N Travon.” Currie identified the Facebook profile as

belonging to defendant and defendant’s son. In the message, defendant apologized for saying

hateful and hurtful things about Currie and for “coming to your house fighting you.” Currie

stated defendant sent her a message on Facebook with the apology.

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¶ 13 Megan Rosenak, a Peoria police officer, responded to the call on May 27, 2021,

about the disturbance at Currie’s home. Currie told Rosenak defendant had dropped a phone.

Rosenak took the phone and saw “there was messaging popping up,” which she could read on

the screen. Rosenak said she knew the messages were in reference to the fight that had occurred

at Currie’s home because she had just talked to Currie and there seemed to be some similarities.

Rosenak could not open the phone to read the messages because the phone was locked, but she

could see the messages on the locked screen. She took a photo of the screen, which was

introduced as the State’s exhibit No. 7.

¶ 14 The photo showed a Facebook message sent 22 minutes prior from “MaRiah

Mason” stating, “It’s not coo to fight sumbody pregnant Fareal no cool points y’all cAn argue all

day.” A message 20 minutes prior stated, “MaRiah Mason reacted [shocked emoji] to your

message: Girl she just blew me I just went to her door and hit her ass.” A notification 19

minutes prior from MaRiah Mason stated, “Vanna [laughing emoji] u kills I just don’t want

nobody putting they hands on u pregnant fareal that blows me.”

¶ 15 Defense counsel objected, arguing, in part, it was not shown the phone belonged

to defendant and it was unknown who was sending the messages or when they were sent. The

State offered to provide additional foundation, and Rosenak testified again that her attention was

drawn to the messages because of similarities between them and what Currie told her. She stated

her familiarity with Facebook Messenger and emojis. Rosenak noted the reaction to a message

sent 20 minutes prior, which stated, “Girl she just blew me I just went to her door and hit her

ass,” and explained that quote was the message to which the other person responded.

¶ 16 Defense counsel again objected and argued the messages were not from defendant

and it was unknown who was sending them. The State responded there was sufficient evidence

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the phone belonged to defendant and included a message sent from defendant that someone

reacted to. The State argued defendant’s concerns went to the weight of the evidence. The trial

court admitted the exhibit.

¶ 17 After the trial court admitted the exhibit, Rosenak testified defendant’s sister later

called and asked to retrieve defendant’s phone. Defendant’s mother also returned to the scene

and asked for the phone. Rosenak did not release the phone to them.

¶ 18 Nehemiah Doyle, another Peoria police officer, went to defendant’s home on May

31, 2021, as part of the investigation of the incident. Doyle recovered a bag with two guns in it,

one of which was the teal-colored gun identified in the State’s exhibit No. 10. The gun had no

blood or hair on it, and no testing was performed on it. Neither gun was admitted into evidence,

and the State never alleged the second gun was involved in the incident.

¶ 19 During initial closing arguments, neither party addressed the messages in exhibit

No. 7. However, the State briefly mentioned the messages in rebuttal to address a defense

argument about how the phone ended up on the floor of Currie’s home. The trial court found

defendant guilty on all charges. The court did not specifically reference exhibit No. 7, but the

court did tell defendant she made a poor decision and told defendant, “[y]ou don’t have to

respond or react to every syllable that is put on Facebook and social media.”

¶ 20 Defendant filed a motion for a judgment of acquittal notwithstanding the trial

court’s findings or a motion for a new trial, alleging in part the court erred in denying objections

made during trial. The court denied the motion.

¶ 21 On September 29, 2022, the trial court sentenced defendant to 24 months’

probation. Defense counsel asked the court to release the seized guns to the father of defendant’s

child, who had a valid FOID card. Counsel noted defendant had a valid FOID card at the time of

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the seizure and stated money from the sale of the guns could be helpful to defendant. The court

noted the firearms were not physically put into evidence and the State replied, “I honestly don’t

know how that works. I suppose we don’t need to hold onto them, they could be released but

they can’t be released to [defendant]. They should be released to somebody *** with a valid

FOID [card].” Defense counsel further noted there were two guns, the teal gun involved in the

incident and “another one [defendant] just handed over to them that they took that had nothing to

do with this.” The State responded, “Yeah, that’s fine,” and defense counsel asked that the

matter be included in the order. In the sentencing order, the court wrote, “the guns may be

released to an individual with a valid FOID card.”

¶ 22 On October 3, 2022, defendant filed a notice of appeal. Also on October 3, 2022,

the State filed a motion to reconsider the release of the guns. The State noted defendant

previously requested the firearms be released to a friend with a valid FOID card. The State then

wrote, “720 ILCS 5/24-6(a), however, requires that ‘[u]pon conviction of an offense in which a

weapon was used or possessed by the offender, any weapon seized shall be confiscated by the

trial court.’ ” On October 6, 2022, the trial court held a hearing, and defense counsel conceded

the issues, stating:

“I have actually reviewed the motion. I looked up and reviewed the statute.

Initially I was going to stand on the argument that the other weapon seized wasn’t

part of this so it shouldn’t be confiscated and destroyed, but after looking at the

statute I believe it states any weapons seized, not just ones that were party to this

incident. So, I will have to concede. I don’t have any lawful argument.”

The court granted the motion and edited the original sentencing order by crossing out the

language allowing the guns to be released and writing “revoked per order on 10/6/22.” The court

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added a file stamp of October 6, 2022, to the bottom of the order. This court allowed

defendant’s motion to file a late notice of appeal from the October 6, 2022, order.

¶ 23 II. ANALYSIS

¶ 24 A. Authentication of Facebook Messages

¶ 25 On appeal, defendant first contends the trial court abused its discretion in

allowing exhibit No. 7 into evidence. Defendant argues the State failed to provide a sufficient

foundation to properly authenticate the Facebook messages shown in the photo of the phone

recovered from Currie’s home. The State argues defendant’s concerns about the messages went

to the weight of the evidence instead of the admissibility of the exhibit.

¶ 26 We treat electronic messages obtained from a phone like any other form of

documentary evidence. See People v. Watts, 2022 IL App (4th) 210590, ¶ 74 (citing People v.

Price, 2021 IL App (4th) 190043, ¶ 115, 193 N.E.3d 320; People v. Ziemba, 2018 IL App (2d)

170048, ¶ 51, 100 N.E.3d 635). A proper foundation is laid for the admission of such evidence

when the document has been identified and authenticated. Watts, 2022 IL App (4th) 210590,

¶ 75. “Authentication of documentary evidence requires the proponent to present evidence the

document is what the proponent claims it to be.” Watts, 2022 IL App (4th) 210590, ¶ 75. “To

do so, ‘[t]he proponent need prove only a rational basis upon which the fact finder can conclude

that the document did in fact belong to or was authored by the party alleged.’ ” Watts, 2022 IL

App (4th) 210590, ¶ 75 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 51). “The trial court’s

finding of authentication is merely a finding there is sufficient evidence to justify presentation of

the offered evidence to the trier of fact and does not preclude the opponent from contesting the

genuineness of the writing after the authentication requirements are satisfied.” Watts, 2022 IL

App (4th) 210590, ¶ 75. “ ‘If the court, after serving its screening function, allows the evidence

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to be admitted, the issue of the document’s authorship is ultimately for the jury to determine.’ ”

Watts, 2022 IL App (4th) 210590, ¶ 75 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 51).

¶ 27 “Documentary evidence may be authenticated by either direct or circumstantial

evidence.” Watts, 2022 IL App (4th) 210590, ¶ 76. Circumstantial evidence of authenticity

includes factors such as appearance, contents, substance, and distinctive characteristics, which

are to be considered with the surrounding circumstances. Watts, 2022 IL App (4th) 210590,

¶ 76. Thus, documentary evidence may be authenticated by its contents if it is shown to contain

information that would be known only by the alleged author of the document or, at the very least,

by a small group of people including the alleged author. Watts, 2022 IL App (4th) 210590, ¶ 76.

We review a trial court’s decision to admit documentary evidence for an abuse of discretion.

Watts, 2022 IL App (4th) 210590, ¶ 76

¶ 28 When determining if a party has made a prima facie showing of authentication of

documentary evidence, the following nonexhaustive list of factors are appropriate for a trial court

to consider:

“ ‘(1) the purported sender admits authorship, (2) the purported sender is seen

composing the communication, (3) business records of an Internet service

provider or cell phone company show that the communication originated from the

purported sender’s personal computer or cell phone under circumstances in which

it is reasonable to believe that only the purported sender would have had access to

the computer or cell phone, (4) the communication contains information that only

the purported sender could be expected to know, (5) the purported sender

responds to an exchange in such a way as to indicate circumstantially that he was

in fact the author of the communication, or (6) other circumstances peculiar to the

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 particular case may suffice to establish a prima facie showing of authenticity.’ ”

Price, 2021 IL App (4th) 190043, ¶ 118 (quoting People v. Kent, 2017 IL App

(2d) 140917, ¶ 118, 81 N.E.3d 578).

See People v. Brand, 2021 IL 125945, ¶ 44, 190 N.E.3d 149.

¶ 29 “[T]he bar for authentication of evidence is not particularly high.” (Internal

quotation marks omitted.) Watts, 2022 IL App (4th) 210590, ¶ 82 (quoting United States v.

Vayner, 769 F.3d 125, 130 (2d Cir. 2014)). The proponent need not rule out all possibilities

inconsistent with authenticity and needs only to adduce sufficient proof so a reasonable juror

could find in favor of authenticity. Watts, 2022 IL App (4th) 210590, ¶ 82. Once an item of

evidence is “authenticated” this merely renders the evidence admissible, leaving the issue of its

ultimate reliability to the jury. Watts, 2022 IL App (4th) 210590, ¶ 82. The opposing party then

remains free to challenge the reliability of the evidence, minimize its importance, or argue

alternative interpretations of its meaning. Watts, 2022 IL App (4th) 210590, ¶ 82. Those

challenges go to the weight of the evidence rather than its initial admissibility. Watts, 2022 IL

App (4th) 210590, ¶ 82.

¶ 30 This court recently addressed the authentication of electronic materials issue in

Watts. There, incriminating memes were found on the defendant’s phone after his arrest. While

the source of the memes was unknown, this court found the material was sufficiently

authenticated when the State was able to establish the phone belonged to the defendant. Watts,

2022 IL App (4th) 210590, ¶ 78. An officer provided evidence the memes were created and

modified on the defendant’s phone in close proximity to a text exchange between the defendant

and his girlfriend, thus providing circumstantial evidence the memes belonged to the defendant.

Watts, 2022 IL App (4th) 210590, ¶ 78. Therefore, the trial court did not abuse its discretion in

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allowing evidence of the memes, as there was direct and circumstantial evidence the memes

were what the State claimed them to be—memes from the defendant’s phone. Watts, 2022 IL

App (4th) 210590, ¶ 78.

¶ 31 Here, the content of the Facebook messages in exhibit No. 7 were properly

authenticated by circumstantial evidence showing defendant was engaged in a conversation

about the incident at Currie’s home and was the author of an admission to another person,

stating, “[g]irl she just blew me I just went to her door and hit her ass.” There was no

meaningful dispute the phone belonged to defendant. The phone was found immediately after

the incident at Currie’s home in the location of the incident. Defendant also later sought to

retrieve her missing phone. The messages appeared on defendant’s phone in close temporal

proximity to the events at issue, and Rosenak testified they contained information similar to facts

Currie told her about the incident. The messages from MaRiah Mason were in response to

“Vanna,” a logical nickname for defendant, whose first name was Ravannah and who had a

Facebook profile with the name “Vanna N Tavon.” Further, the messages contained information

specific to defendant, such as her pregnancy. Rosenak explained how a Facebook reaction

functioned to show that defendant sent the message with the admission. Thus, the State

presented evidence providing a rational basis upon which the trial court could conclude the

evidence was what the proponent claimed it to be—Facebook messages between defendant and

another person about the incident at Currie’s home. At that point, the court did not abuse its

discretion in allowing the evidence, and issues concerning the reliability of the messages went to

the weight of the evidence instead of its admissibility.

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¶ 32 Defendant relies substantially on two cases to argue otherwise, Kent, 2017 IL App

(2d) 140917, and People v. Watkins, 2015 IL App (3d) 120882, 25 N.E.3d 1189. However, those

cases are distinguishable.

¶ 33 In Kent, the defendant was convicted of the first degree murder of a victim who

had been shot in his own driveway. Kent, 2017 IL App (2d) 140917, ¶¶ 3-4. On appeal, the

defendant argued the trial court abused its discretion in admitting into evidence a Facebook

profile under a nickname associated with the defendant entitled “Lorenzo Luckii Santos” that

contained a photograph of a person resembling him. Kent, 2017 IL App (2d) 140917, ¶ 57. The

profile contained a post reading “ ‘its my way or the highway…..leave em dead n his

driveway.’ ” Kent, 2017 IL App (2d) 140917, ¶ 57. The State introduced no direct or

circumstantial proof of authentication, defendant did not admit creating the Facebook profile or

authoring the post, and there was no testimony suggesting defendant was affiliated with the

creation of either. Kent, 2017 IL App (2d) 140917, ¶ 119. Considering the ease of fabricating a

social media account, the Kent court found the Facebook post was improperly admitted, because

the only evidence of authentication was the defendant’s nickname and a photograph allegedly

resembling the defendant. Kent, 2017 IL App (2d) 140917, ¶ 119. In contrast, here, the State did

present circumstantial evidence of authentication, and the evidence strongly suggested defendant

was affiliated with the messages on her phone. Thus, we distinguish Kent on that basis. See

People v. Curry, 2020 IL App (2d) 180148, ¶¶ 54-55, 179 N.E.3d 824 (distinguishing Kent).

¶ 34 In Watkins, the appellate court determined the State failed to lay a proper

foundation for the admission of photographs depicting text messages in a case where the

defendant was charged with unlawful possession of a controlled substance with intent to deliver.

After executing a search warrant inside of a home were the defendant and five other people were

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present, the officers found drugs and multiple cellular phones in an open kitchen drawer.

Watkins, 2015 IL App (3d) 120882, ¶¶ 11-12. One of those phones contained drug-related text

messages that were directed to someone named “Charles,” which happened to be the defendant’s

first name. Watkins, 2015 IL App (3d) 120882, ¶¶ 16-17. Notably, however, there was no

evidence of the phone number associated with the phone, and there was no indication from the

phone itself that the defendant was the owner. Watkins, 2015 IL App (3d) 120882, ¶ 24. Under

those circumstances, the appellate court determined the evidence was insufficient to authenticate

the text messages as having been sent to the defendant. Watkins, 2015 IL App (3d) 120882, ¶ 38.

In so holding, the court emphasized the police officer who identified the photographs of the text

messages at trial “had no personal knowledge of the text messages and had no idea who was the

owner or user of the cell phone.” Watkins, 2015 IL App (3d) 120882, ¶ 38.

¶ 35 Here, unlike Watkins, and as previously discussed, there is no meaningful dispute

the phone belonged to defendant. Further, Rosenak personally witnessed the message

notifications on the phone in close temporal proximity to the incident and recognized similarities

between the messages and information provided by Currie. Thus, Watkins is distinguishable.

See People v. Harper, 2017 IL App (4th) 150045, ¶ 61, 80 N.E.3d 856 (“The present case is

distinguishable from Watkins because the State here had evidence the cell phone in question

belonged to defendant.”). Accordingly, we determine the trial court did not abuse its discretion

in allowing exhibit No. 7 into evidence.

¶ 36 B. Forfeiture of the Guns

¶ 37 Defendant next contends the trial court erred in granting the State’s motion to

reconsider the release of one of the guns. We note the State initially forfeited the issue of the

release of the guns when it agreed at sentencing to the return of them to a qualified individual.

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The State then raised a legal issue concerning confiscation of the guns for the first time in its

motion to reconsider. Normally, an argument raised for the first time in a motion to reconsider

in the trial court is forfeited on appeal. Evanston Insurance Co. v. Riseborough, 2014 IL

114271, ¶ 36, 5 N.E. 3d 158. However, forfeiture can be forfeited. See People v. De La Paz,

204 Ill. 2d 426, 433, 791 N.E.2d 489, 493 (2003). Here, defendant conceded the issue at the

hearing on the motion to reconsider. Defendant recognizes her trial counsel forfeited the issue

by conceding the issue at the hearing on the State’s motion to reconsider, but she argues counsel

was ineffective for doing so.

¶ 38 A defendant’s claim of ineffective assistance of counsel is analyzed under the

two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.

Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant

must show both that counsel’s performance was deficient and that the deficient performance

prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203

(2010). To establish deficient performance, the defendant must show his attorney’s performance

fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808

N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). To satisfy the second prong of

Strickland, “[a] defendant establishes prejudice by showing that, but for counsel’s unprofessional

errors, there is a reasonable probability that the result of the proceeding would have been

different.” People v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). “A defendant must

satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a

finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.

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¶ 39 Under section 24-6 of the Illinois Criminal Code of 2012 (720 ILCS 5/24-6 (West

2020)), the State is given the authority to confiscate and dispose of weapons. Section 24-6

provides, in part:

“(a) Upon conviction of an offense in which a weapon was used or

possessed by the offender, any weapon seized shall be confiscated by the trial

court.

(b) Any stolen weapon so confiscated, when no longer needed for

evidentiary purposes, shall be returned to the person entitled to possession, if

known. After the disposition of a criminal case or in any criminal case where a

final judgment in the case was not entered due to the death of the defendant, and

when a confiscated weapon is no longer needed for evidentiary purposes, and

when in due course no legitimate claim has been made for the weapon, the court

may transfer the weapon to the sheriff of the county who may proceed to destroy

it, or may in its discretion order the weapon preserved as property of the

governmental body whose police agency seized the weapon, or may in its

discretion order the weapon to be transferred to the Illinois State Police for use by

the crime laboratory system, for training purposes, or for any other application as

deemed appropriate by the Department. If, after the disposition of a criminal

case, a need still exists for the use of the confiscated weapon for evidentiary

purposes, the court may transfer the weapon to the custody of the State

Department of Corrections for preservation.” 720 ILCS 5/24-6 (West 2020).

¶ 40 Although partly civil, a forfeiture action is considered quasi-criminal because the

“only objective is to penalize unlawful activity.” People v. Earl, 121 Ill. App. 3d 254, 257, 459

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N.E.2d 342, 345 (1984). As a forfeiture proceeding is quasi-criminal, the burden of proof is on

the State. People v. Braden, 243 Ill. App. 3d 671, 676, 611 N.E.2d 575, 579 (1993) (citing

People v. LeShoure, 143 Ill. App. 3d 839, 844, 493 N.E.2d 687, 690 (1986)). The State is

required to prove its right to seized contraband by a preponderance of the evidence. Braden, 243

Ill. App. 3d at 676, 611 N.E.2d at 579. On appeal of a contraband-forfeiture case, we review

whether the trial court’s order is contrary to the manifest weight of the evidence. Braden, 243

Ill. App. 3d at 676, 611 N.E.2d at 579.

¶ 41 Initially, defendant contends the parties and the trial court misinterpreted the term

“any” in section 24-6 to apply to both guns. Defendant argues under Earl, the term applies only

to contraband, and the second gun found in the bag with the teal gun could not be subject to

forfeiture because it was not per se or derivative contraband.

¶ 42 Our supreme court has identified two categories of contraband. People v. Steskal,

55 Ill. 2d 157, 159, 302 N.E.2d 321, 323 (1973). “Contraband per se is material the mere

possession of which constitutes a crime.” People v. DeLuca, 302 Ill. App. 3d 454, 459, 706

N.E.2d 927, 930 (1998) (citing Steskal, 55 Ill. 2d at 159, 302 N.E.2d at 323). “Derivative

contraband is material that is not inherently illegal, but is used in an illegal manner.” DeLuca,

302 Ill. App. 3d at 459, 706 N.E.2d at 930 (citing Steskal, 55 Ill. 2d at 159, 302 N.E.2d at 323).

“Certain weapons such as sawed[-]off shotguns and switchblades, are contraband per se because

they cannot be legally possessed.” DeLuca, 302 Ill. App. 3d at 459, 706 N.E.2d at 930. “A gun

that may be legally possessed, however, is derivative contraband if it is closely connected to

illegal activity.” DeLuca, 302 Ill. App. 3d at 459, 706 N.E.2d at 930.

¶ 43 This distinction was illustrated in Earl, which also held only per se or derivative

contraband could be forfeited under section 24-6. Earl, 121 Ill. App. 3d at 258, 459 N.E.2d at

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345. There, the defendant was charged with illegal use of a weapon after being arrested while

carrying a loaded handgun on the floor of the passenger compartment of his car. Earl, 121 Ill.

App. 3d at 255, 459 N.E.2d at 343. The police also seized additional weapons from the trunk of

the defendant’s car. Earl, 121 Ill. App. 3d at 255, 459 N.E.2d at 343. The appellate court held

the handgun in the passenger compartment was derivative contraband because, while it was not

unlawful to possess such a weapon in Illinois, the State established the weapon was used or

possessed in connection with illegal activity when it was transported in an illegal manner. Earl,

121 Ill. App. 3d at 255, 459 N.E.2d at 345. However, the weapons confiscated from the trunk of

his vehicle were neither contraband per se nor derivative contraband. Earl, 121 Ill. App. 3d at

255, 459 N.E.2d at 345. The weapons in the trunk were not linked to the illegal activity, as the

charge was not connected to the trunk of the vehicle. Earl, 121 Ill. App. 3d at 255, 459 N.E.2d

at 345.

¶ 44 The Earl court rejected an argument by the State that “any weapon seized” in

section 24-6 allowed forfeiture of “every weapon seized, regardless of whether the weapons were

in any respect related to the commission of an offense.” Earl, 121 Ill. App. 3d at 256, 459

N.E.2d at 344. The court noted forfeitures of property are not favored in the law, and statutes

authorizing forfeitures must be strictly construed. Earl, 121 Ill. App. 3d at 257, 459 N.E.2d at

345. Finding the trial court could confiscate a weapon under section 24-6(b) only when “no

legitimate claim” had been made, the court held the legislature intended to approve confiscation

of contraband per se, or derivative contraband, as no legitimate claim could be made for such

weapons. See Earl, 121 Ill. App. 3d at 258, 459 N.E.2d at 345. In contrast, the court held

“weapons which are neither contraband per se nor derivative contraband are returnable to

persons establishing their possessory rights to them.” Earl, 121 Ill. App. 3d at 258, 459 N.E.2d

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at 345. Thus, the Earl court ordered the weapons found in the trunk returned to the defendant.

Earl, 121 Ill. App. 3d. at 259, 459 N.E.2d 346.

¶ 45 Here, the teal gun was derivative contraband because, while it was not illegal for

defendant to have it, it was used in the aggravated battery offense. However, the State never

established the other gun found in the bag with the teal gun was either per se or derivative

contraband. Nothing in the record suggests defendant illegally possessed the other gun or that it

was used in the commission of the crimes she was convicted of. Thus, the State never met its

burden of showing its authority to forfeit the second gun. Because the State never met its

burden, and the parties appeared to be acting solely under a misapprehension of the meaning of

section 24-6, defense counsel unreasonably conceded the issue. In doing so, counsel rendered

ineffective assistance, and the law would have required the result of the proceeding to be

different had the trial court been presented with the correct law.

¶ 46 Notably, the State does not take issue with the holding of Earl or disagree the

second gun is not subject to forfeiture if it is not per se or derivative contraband. Instead, the

State suggests the factual issue of whether the second gun was contraband is best left to a

postconviction collateral attack. We disagree.

¶ 47 “[I]neffective assistance of counsel claims may sometimes be better suited to

collateral proceedings but only when the record is incomplete or inadequate for resolving the

claim.” People v. Veach, 2017 IL 120649, ¶ 46, 89 N.E.3d 366. Here, the record is sufficient to

determine defendant’s claim. The State speculates for the first time on appeal the second gun

could have been in defendant’s possession at the time of the offenses. However, the State had

the initial burden of proof. In that respect, the State never suggested the second gun was illegally

possessed or involved in the crimes. The forfeiture proceeding was a continuation of the

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prosecution, and the evidence before the court at trial was also before the court in the forfeiture

proceedings. See LeShoure, 143 Ill. App. 3d at 841, 493 N.E.2d at 688. As previously

discussed, nothing suggests the second gun was either per se or derivative contraband. There is

no evidence or logical inference from the record that another gun aside from the teal gun was

used by defendant in committing the offenses.

¶ 48 Instead, at sentencing, when defense counsel noted there were two guns, the teal

gun involved in the incident and “another one [defendant] just handed over to them that they

took that had nothing to do with this,” the State responded, “Yeah, that’s fine.” In its motion to

reconsider, the State did not take issue with any of the facts surrounding the second gun. Instead,

it merely presented a legal argument—contending section 24-6 required that “any” gun seized be

confiscated. Thus, the State also forfeited any argument it had with the underlying facts, as it

never challenged those in its motion to reconsider.

¶ 49 Under these circumstances, where the State forfeited the factual speculation it

now attempts to raise for the first time on appeal, and where there is no support in the record for

such speculation, requiring defendant to initiate a postconviction petition would be burdensome

and unnecessary. See generally, People v. Mudd, 54 Ill. App. 3d 603, 605, 370 N.E.2d 37, 39

(1977) (citing People v. Jackson, 26 Ill. App. 3d 845, 849, 326 N.E.2d 138, 141 (1975)). Thus,

we conclude counsel rendered ineffective assistance by agreeing to the forfeiture of both guns at

the hearing on the State’s motion to reconsider.

¶ 50 Accordingly, we affirm the trial court’s judgment except as to forfeiture of the

second gun. Pursuant to our power under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1,

1994), we modify the court’s judgment to provide that a designee of defendant with a valid

FOID card, who is not prohibited from possessing a firearm, be allowed to retrieve defendant’s

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second seized gun. If the gun has been sold, any proceeds of the sale shall be turned over to

defendant. See LeShoure, 143 Ill. App. 3d at 848, 493 N.E.2d at 692.

¶ 51 III. CONCLUSION

¶ 52 For the reasons stated, we affirm the trial court’s admission of exhibit No. 7 into

evidence but modify the sentencing order as it relates to the second gun.

¶ 53 Affirmed as modified.

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