People v. Hatcher

2024 IL App (1st) 220455
No. 1-22-0455
Opinion filed March 27, 2024
Third Division
______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 19 CR 11210
)
ASHONTIS HATCHER, ) Honorable
) John T. Gallagher,
Defendant-Appellant. ) Judge, presiding.

JUSTICE VAN TINE delivered the judgment of the court, with opinion.
Presiding Justice Reyes and Justice D.B. Walker concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, defendant Ashontis Hatcher was found guilty of four counts of

aggravated unlawful use of a weapon (AUUW) and sentenced to one year in prison. On appeal,

defendant contends that (1) the trial court should have granted his motion to quash his arrest and

suppress evidence, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the

AUUW statute under which he was convicted violate the second amendment to the United States

Constitution, and (4) if we affirm his AUUW convictions, we should vacate all but one pursuant

to the one-act, one-crime rule. For the following reasons, we affirm the denial of defendant’s
No. 1-22-0455

motion to quash his arrest and suppress evidence, the trial court’s acceptance of his jury waiver,

and the facial constitutionality of the subsections of the AUUW statute under which he was

convicted. However, we agree that all but one of defendant’s convictions should be vacated

pursuant to the one-act, one-crime rule, and we remand to the trial court to determine which

conviction should stand and which should be vacated.

¶2 I. BACKGROUND

¶3 The State charged defendant with and proceeded to trial on four counts of AUUW arising

out of his possession of a firearm on July 12, 2019. Count I alleged that defendant knowingly

carried an uncased, loaded, and immediately accessible firearm without a concealed carry license

(CCL) or Firearm Owner’s Identification (FOID) card (720 ILCS 5/24-1.6(a)(1), (a)(3)(A); (a)(1),

(a)(3)(A-5); (a)(1), (a)(3)(C) (West 2018)). Count II alleged that defendant knowingly carried an

uncased, loaded, and immediately accessible firearm without a CCL (id. § 24-1.6(a)(1), (a)(3)(A-

5)). Count III alleged that defendant knowingly carried a firearm without a FOID card (id. § 24-

1.6(a)(1), (a)(3)(C)). Count IV alleged that defendant knowingly carried a firearm when he was

under 21 years of age (id. § 24-1.6(a)(1), (a)(3)(I)).

¶4 A. Motion to Suppress

¶5 Defendant filed a pretrial motion to quash his arrest and suppress certain evidence. His

motion alleged that he was arrested by Orland Park police at approximately 7:50 p.m. on July 12,

2019. Defendant was a passenger in a vehicle when he was arrested. Police recovered a firearm

and “other identifying items” from a bag near defendant’s seat in the rear passenger compartment.

Defendant’s motion argued that the arresting officers did not have an arrest warrant for him, a

search warrant for his property, or probable cause to justify his warrantless arrest.

-2-
No. 1-22-0455

¶6 At the hearing on defendant’s motion to suppress, Orland Park Police Officer David

Staszak testified that he and his partner, Officer Chris Losurdo, were on duty in plain clothes and

driving an unmarked police vehicle on the evening of July 12, 2019. 1 Tinley Park Police Officer

Russ Borrowdale informed Staszak that he saw a Nissan stop at a bank in Tinley Park. Borrowdale

saw the front passenger, who was later identified as Andre Culpepper, exit the Nissan, look at an

automatic teller machine (ATM), and return to the vehicle, which drove off. Borrowdale followed

the Nissan to another bank in Orland Park, and Staszak and Losurdo arrived on scene. The officers

monitored the bank’s entrance and exit. Borrowdale told Staszak that he saw Culpepper enter the

bank’s vestibule, use the ATM, and return to the Nissan. Staszak suspected that Culpepper was

“card tracking,” which is using someone else’s debit card to make deposits into a bank account

and then withdrawing the funds before the bank discovers that the transactions are fraudulent.

Staszak had investigated card tracking previously at that particular Orland Park bank.

¶7 After the Nissan left the second bank, Staszak saw it change lanes without using a turn

signal, so he conducted a traffic stop. Staszak, Losurdo, and Borrowdale approached the Nissan.

Kendrick Morse was driving the Nissan, Culpepper was in the front passenger seat, and defendant,

whom Staszak identified in court, was in the rear passenger seat. 2 Culpepper initially refused

multiple orders to exit the vehicle, but when he did get out, the officers arrested him and recovered

an ATM receipt from his hand. The receipt matched a credit or debit card belonging to someone

named Tyler Hickman, who was not in the vehicle, and it indicated that Culpepper had used

1
The record uses both “officer” and “detective” as titles for the Orland Park Police personnel. For
simplicity, we will refer to both as officers.
2
The record spells the driver’s last name as both “Morse” and “Morris.” We will use “Morse”
because that is how Staszak spelled it at the motion to suppress hearing.

-3-
No. 1-22-0455

Hickman’s card in the ATM transaction at the bank in Orland Park. The officers recovered

Hickman’s card from the front passenger door handle.

¶8 The officers ordered Morse and defendant to exit the Nissan, which they did. Defendant

was not handcuffed, but he was not free to leave. The officers searched the vehicle “for further

evidence of possible bank fraud crimes.” They recovered a debit card belonging to a Kenesha

Allen from the center console and a check for $2007 from the glove box. Orland Park Police

Officer Casey Wall, who arrived during the traffic stop, saw an open backpack on the floorboard

of the rear passenger area where defendant’s feet had been. He could see a handgun magazine

protruding from the backpack’s open zipper. From the backpack, the officers recovered a handgun,

a debit or credit card belonging to defendant, and several credit cards belonging to people who

were not in the Nissan.

¶9 Defendant argued that there was no indication he was involved in criminal activity when

police detained him and searched his backpack. He was not the person police saw approach ATMs

at the two banks, and he complied with the officers’ orders, defendant maintained. The State argued

that the officers had reasonable suspicion to stop the Nissan and probable cause to search it and

arrest its occupants based on suspicion of bank fraud, which was corroborated by the officers’

discovery of bank cards and a check in the vehicle.

¶ 10 The trial court denied defendant’s motion to suppress. The court concluded that the officers

were “conducting a reasonable investigation into a suspicion” of bank fraud, which they

substantiated when they found Hickman’s card near the vehicle’s front passenger door handle. In

addition, the court found that the officers saw the firearm’s magazine “within open sight” because

the backpack was open.

-4-
No. 1-22-0455

¶ 11 B. Trial

¶ 12 Prior to trial, defendant signed a jury waiver form, which stated “I, the undersigned, do

hereby waive jury trial and submit the above entitled cause to the Court for hearing.” In response

to questioning by the trial court, defendant confirmed that he signed the jury waiver form and that

he was “asking for a bench trial, not a jury trial.”

¶ 13 At trial, Losurdo testified consistently with Staszak’s testimony at the motion to suppress

hearing. Losurdo added that Borrowdale initially contacted him and Staszak by phone.

¶ 14 Wall testified that he was on duty in plain clothes on July 12, 2019. Wall learned that

Staszak and Losurdo had conducted a traffic stop on the 15400 block of LaGrange Road and drove

to that location. Wall spoke with defendant, whom he identified in court, while defendant was in

the rear passenger seat of the Nissan. After defendant complied with orders to exit the Nissan,

Wall searched the rear passenger compartment and found a small red backpack on the floorboard.

He saw the magazine of a firearm protruding from an open zipper. Wall searched the backpack

and recovered a loaded firearm and several debit and credit cards, one of which had defendant’s

name on it. The other cards belonged to individuals who were not in the Nissan.

¶ 15 Wall identified photographs of the firearm, the backpack, and defendant’s debit card, which

the State moved into evidence. The first photograph depicts a Smith & Wesson handgun. The

second photograph depicts a red backpack surrounded by a collection of personal items, including

four bank receipts and four credit or debit cards. The third photograph depicts the back of a bank

card belonging to defendant.

¶ 16 The parties stipulated that defendant was born on August 26, 1998, and that he did not

possess a valid FOID card or CCL on July 12, 2019.

-5-
No. 1-22-0455

¶ 17 The trial court found defendant guilty on all counts. The court explained that defendant’s

debit card being inside the backpack supported his constructive possession of the backpack and

the firearm inside it.

¶ 18 Defendant filed a motion for a new trial, which argued, inter alia, that the trial court erred

in denying his motion to suppress. Defendant’s posttrial motion did not address his waiver of his

right to a jury trial, the constitutionality of the AUUW charges, or the one-act, one-crime rule.

¶ 19 The trial court sentenced defendant to one year in prison.

¶ 20 Defendant timely appealed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, defendant argues that (1) the trial court should have granted his motion to

suppress, (2) his waiver of his right to a jury trial was invalid, (3) the subsections of the AUUW

statute under which he was convicted violate the second amendment to the United States

Constitution, and (4) if we affirm his convictions, all but one should be vacated pursuant to the

one-act, one-crime rule.

¶ 23 According to the Illinois Department of Corrections (IDOC) website, defendant has

completed his sentence and is no longer in IDOC custody. 3 Nevertheless, he can still challenge his

convictions. “[T]he completion of a defendant’s sentence renders a challenge to the sentence moot,

but not a challenge to the conviction. [Citation.] Nullification of a conviction may hold important

consequences for a defendant.” In re Christopher K., 217 Ill. 2d 348, 359 (2005).

3
We take judicial notice of information on IDOC’s website. People v. Castillo, 2022 IL 127894,
¶ 40.

-6-
No. 1-22-0455

¶ 24 A. Motion to Suppress

¶ 25 Defendant first contends that the trial court should have granted his motion to suppress the

firearm police recovered from his backpack, along with information about his age and lack of a

FOID card and CCL.

¶ 26 At a motion to suppress hearing, the defendant has the burden to make a prima facie

showing that the evidence in question was obtained by an illegal search or seizure. People v.

Brooks, 2017 IL 121413, ¶ 22. A prima facie showing means the defendant must establish the

factual and legal basis for the motion to suppress. Id. When the defendant alleges evidence was

the product of an unlawful search or seizure, he must establish that there was a search or seizure

and that it was unlawful. Id.; People v. Juarbe, 318 Ill. App. 3d 1040, 1049 (2001). If a defendant

makes a prima facie showing, the burden shifts to the State to present evidence to counter it.

Brooks, 2017 IL 121413, ¶ 22. The ultimate burden of proof remains with the defendant. Id.

¶ 27 We review the denial of a motion to suppress using a two-part standard. Id. ¶ 21. We give

deference to the trial court’s findings of fact, which we reverse only if they are against the manifest

weight of the evidence. Id. We review de novo whether the police had probable cause to conduct

searches or seizures. Id. In reviewing the trial court’s ruling on a motion to suppress, we consider

the evidence adduced at trial as well as at the suppression hearing. People v. Hannah, 2013 IL App

(1st) 111660, ¶ 41.

¶ 28 The fourth amendment to the United States Constitution prohibits unreasonable searches

and seizures. People v. Daniel, 2013 IL App (1st) 111876, ¶ 31 (citing U.S. Const., amend. IV; Ill.

Const. 1970, art. I, § 6; People v. Sorenson, 196 Ill. 2d 425, 432 (2001)). This case involves three

interactions to which the fourth amendment applies: the initial traffic stop of the Nissan,

-7-
No. 1-22-0455

defendant’s arrest, and the search that produced the firearm in defendant’s backpack. Defendant’s

motion to suppress did not challenge the legality of the initial traffic stop, and he does not raise

that issue on appeal. Therefore, we assume that the traffic stop was lawful and proceed to the issue

of defendant’s arrest.

¶ 29 Defendant argues that “police arrested [him] after searching the car where he had been a

passenger and finding a gun in a backpack that was on a rear passenger floorboard.” According to

defendant, his arrest was unjustified because “[p]olice did not observe [him] engage in any

unlawful activity before the arrest or determine whether his possession of a firearm was illegal.”

Defendant also contends that his “illegal arrest led to the seizure of a gun and information about

his age and lack of a FOID card or concealed-carry license.”

¶ 30 We find these arguments somewhat contradictory. On the one hand, defendant claims that

police found the firearm in his backpack first, then arrested him. On the other hand, defendant

claims that police first arrested him unlawfully, then “seiz[ed]” the firearm. Perhaps defendant is

drawing a fine distinction between “finding” the firearm and “seizing” it, but it is not clear what

he contends the order of events was. For its part, the State argues that defendant forfeited the first

argument, i.e., that the officers did not have probable cause to arrest him because they learned only

after his arrest that it was illegal for him to possess the firearm due to his age and his lack of a

FOID card and CCL. According to the State, defendant did not advance that theory of suppression

in the trial court. Ultimately, we do not need to untangle these arguments because our review of

whether the officers violated defendant’s fourth amendment rights is de novo. See Brooks, 2017

IL 121413, ¶ 21. We will apply fourth amendment principles to the evidence that was presented at

the motion to suppress hearing and at trial.

-8-
No. 1-22-0455

¶ 31 As noted above, there is no dispute that police conducted a traffic stop of the Nissan in

which defendant was a passenger. Defendant does not claim that the traffic stop was unlawful.

Following a lawful traffic stop, police may order the driver and passengers out of the vehicle while

the officers complete the investigatory stop. People v. Gonzalez, 184 Ill. 2d 402, 413-14 (1998).

Ordering defendant to exit the Nissan was lawful. See id.

¶ 32 Clearly defendant was arrested at some point after police stopped the Nissan. The question

is when that occurred. “ ‘An arrest occurs when the circumstances are such that a reasonable

person, innocent of any crime, would conclude that he was not free to leave.’ ” People v.

Mrdjenovich, 2023 IL App (1st) 191699, ¶ 63 (quoting People v. Lopez, 229 Ill. 2d 322, 346

(2008)). In determining whether an arrest occurred, we must consider “ ‘all of the circumstances

surrounding the encounter.’ ” Id. (quoting Kaupp v. Texas, 538 U.S. 626, 629 (2003) (per curiam)).

¶ 33 The evidence established the following sequence of events: Police stopped the Nissan and

ordered Culpepper to exit the vehicle; he refused. When Culpepper eventually did exit the Nissan,

the officers arrested him and recovered an ATM receipt that matched a bank card belonging to a

Tyler Hickman, who was not in the vehicle. The officers found Hickman’s card in the front

passenger-side door. Shortly thereafter, the officers ordered defendant and Morse out of the

vehicle, searched it, and found another bank card belonging to a Kenesha Allen, who was not in

the vehicle, as well as a check for $2007. When defendant was outside the Nissan, he was not

handcuffed, and the officers did not have their weapons drawn. However, Staszak testified that

defendant was “not free to leave” at that point. Wall saw the magazine of a firearm protruding

from defendant’s open backpack and recovered the firearm along with several credit and debit

cards. Staszak confirmed that defendant was detained when Wall recovered these items from

-9-
No. 1-22-0455

defendant’s backpack. A reasonable person in defendant’s position would not have thought that

he was free to simply walk away from the Nissan while the officers searched it, particularly

because Culpepper had already been arrested. See id. Therefore, defendant’s arrest occurred

shortly after he exited the Nissan and before Wall searched his backpack and recovered the firearm.

¶ 34 Next, we must determine whether defendant’s arrest was lawful. A warrantless arrest is

reasonable only if it is supported by probable cause. People v. Grant, 2013 IL 112734, ¶ 11.

Probable cause to arrest exists if the facts known to the officer at the time of the arrest are sufficient

to lead a reasonable person to believe that the arrestee has committed a crime. Id. When

determining whether officers had probable cause to arrest, we examine the totality of the

circumstances known to the officers at the time of the arrest. Id. “Whether probable cause exists is

governed by commonsense considerations, and the calculation concerns the probability of criminal

activity, rather than proof beyond a reasonable doubt.” Id.

¶ 35 When the officers arrested defendant, they had observed Culpepper’s suspicious behavior

at two nearby banks, both of which he traveled to in the Nissan. The officers had also recovered

two pieces of evidence of bank fraud from the Nissan: the ATM receipt and Hickman’s bank card.

Given that defendant, Culpepper, and Morse were all in the Nissan together, “ ‘it was reasonable

for the officer[s] to infer a common enterprise among the three men.’ ” See People v. Ortiz, 355

Ill. App. 3d 1056, 1069 (2005) (quoting Maryland v. Pringle, 540 U.S. 366, 373 (2003)); see also

People v. Allen, 268 Ill. App. 3d 279, 284 (1994) (it is “likely a car passenger is a companion to

the driver, and perhaps involved in the driver’s criminal behavior”). In sum, at the time of

defendant’s arrest, police knew that defendant was a passenger in a vehicle they had probable

- 10 -
No. 1-22-0455

cause to believe was being used to commit bank fraud. That was sufficient to provide probable

cause for defendant’s arrest. See Ortiz, 355 Ill. App. 3d at 1073.

¶ 36 Defendant argues that “mere possession of a handgun was not a crime and could not serve

as a basis for arrest.” That may be true, but the evidence established that defendant was arrested

before Officer Wall discovered the firearm in his backpack. Defendant was not arrested based on

his possession of a firearm; he was arrested based on his suspected involvement in bank fraud.

¶ 37 Defendant also contends that the officers saw only Culpepper “engaging in the suspicious

activity at the two ATMs.” That is also true, but, as explained above, police may, in some

circumstances, infer a common criminal enterprise among occupants of the same vehicle. See id.

at 1069. It is unlikely that an innocent, uninvolved person would be invited to ride along with

Culpepper as he committed suspected bank fraud. See id.

¶ 38 Defendant argues that the trial court should have suppressed evidence that he was under 21

and lacked a FOID card and CCL because those pieces of information were the “fruits of an illegal

arrest.” But defendant’s arrest was lawful, so this evidence was not the product of an unlawful

arrest. Moreover, at the motion to suppress hearing, defendant elicited no evidence about when or

how the officers learned that defendant did not have a FOID card or a CCL or that he was under

21. There is no factual basis to support suppressing that information. Accordingly, we affirm the

denial of defendant’s motion to suppress.

¶ 39 B. Jury Waiver

¶ 40 Defendant next argues that the trial court violated his right to a jury trial by accepting his

jury waiver without admonishing him of that right and without ensuring that he waived that right

knowingly and understandingly.

- 11 -
No. 1-22-0455

¶ 41 Defendant’s posttrial motion did not raise his waiver of his right to a jury trial. Generally,

to preserve an issue for appeal, a defendant must object at trial and raise the issue in a posttrial

motion. People v. Galarza, 2023 IL 127678, ¶ 45. Failure to do so results in forfeiture of that issue.

Id. Defendant acknowledges that he did not preserve this issue, but he requests, and we will grant,

plain error review. See People v. West, 2017 IL App (1st) 143632, ¶ 11 (granting plain error review

of validity of jury waiver). The plain error doctrine allows a reviewing court to consider

unpreserved claims of error where (1) “a clear or obvious error occurred and the evidence is so

closely balanced that the error alone threatened to tip the scales of justice against the defendant,

regardless of the seriousness of the error” or (2) “a clear or obvious error occurred and that error

is so serious that it affected the fairness of the defendant’s trial and challenged the integrity of the

judicial process, regardless of the closeness of the evidence.” People v. Belknap, 2014 IL 117094,

¶ 48; see Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967). The violation of a defendant’s right to choose a

bench or a jury trial constitutes second-prong plain error. People v. Jordan, 2019 IL App (1st)

161848, ¶ 18 (citing People v. Bracey, 213 Ill. 2d 265, 270 (2004)). The first step of plain error

review is determining whether an error occurred at all. West, 2017 IL App (1st) 143632, ¶ 11.

¶ 42 Our federal and state constitutions guarantee the right to a jury trial. Bracey, 213 Ill. 2d at

269. However, a defendant may waive his right to a jury trial. Id.; 725 ILCS 5/115-1 (West 2018).

For a jury waiver to be valid, it must be knowingly and understandingly made. Bracey, 213 Ill. 2d

at 269; 725 ILCS 5/103-6 (West 2018). A written jury waiver is one means by which a defendant

may waive his right to a jury, but a written waiver is not automatically valid. Bracey, 213 Ill. 2d

at 269-70. A jury waiver is generally valid when defense counsel waives that right in open court

and the defendant does not object. Id. at 270. A court does not need to give any specific

- 12 -
No. 1-22-0455

admonishments for a waiver to be effective; rather, whether a jury waiver is valid depends upon

the facts and circumstances of each case. Id. at 269-70. There is no precise formula for determining

whether a jury waiver is valid. Id. at 269. “In essence, for a jury waiver to be effective, the trial

court must ensure that the defendant knows that the facts of his case would be determined by a

judge and not a jury and the resulting consequences of that decision.” West, 2017 IL App (1st)

143632, ¶ 10 (citing People v. Bannister, 232 Ill. 2d 52, 69 (2008)). Defendant has the burden of

establishing that his jury waiver was invalid, and we review this issue de novo. Id.

¶ 43 We find no error based on the record before us. There is no dispute that defendant signed

a jury waiver form, which stated, “I, the undersigned, do hereby waive jury trial and submit the

above entitled cause to the Court for hearing.” The court addressed defendant, “I’m holding up a

jury waiver form that says you’re waiving your right to a jury trial. Did you sign that form, sir?”

Defendant responded, “Yes. Yes, sir.” The court then asked, “You are asking for a bench trial, not

a jury trial, sir; is that correct?” Defendant responded, “Correct.” The record suggests no hesitation,

uncertainty, or confusion on defendant’s part. There is no basis in the record for us to find that

defendant’s jury waiver was invalid.

¶ 44 Defendant argues that the trial court did not explain the difference between a bench trial

and a jury trial, did not ask whether defendant understood that he had the right to a jury trial, and

did not ask whether his jury waiver was the product of any threats or promises. The law does not

require these admonishments or questions. See Bracey, 213 Ill. 2d at 270 (“For a waiver to be

effective, the court need not impart to defendant any set admonition or advice.”). Defendant cites

no authority holding that the absence of these admonishments means his jury waiver was invalid.

- 13 -
No. 1-22-0455

¶ 45 Defendant cites People v. Rambo, 123 Ill. App. 2d 299, 303 (1970), for the proposition that

“signing a [pre]printed [jury waiver] form has become such a routine formality that a perfunctory

signing—without proof that the form was read by the defendant and understood by him—cannot

be accepted as a substitute for an express waiver, understandingly made after careful interrogation

by the court.” Rambo suggests that the existence of a signed jury waiver form in the court file, on

its own, does not automatically constitute a valid waiver. That may be true, but it does not apply

to this case. In this case, the court held up defendant’s signed jury waiver form when he was in

court with his attorney, explained what the form meant, confirmed that defendant signed it, and

confirmed that defendant wanted a bench trial and not a jury trial. By contrast, in Rambo, the trial

court did not ask the defendant if he wished to waive his right to a jury trial, did not read the waiver

form to him, did not ask whether he had read the waiver form, and did not ascertain whether the

defendant understood the waiver form. Id. at 302. Rambo is distinguishable and does not compel

reversal.

¶ 46 Defendant also contends that he did not understand his right to a jury trial because he had

never gone to trial in a criminal case before. That may be true as well, but it does not mean that

defendant was a “stranger to the criminal justice system.” See Bannister, 232 Ill. 2d at 71. In fact,

on April 9, 2020, while this case was pending and defendant was out on bond, he was arrested and

charged with possession of a firearm while riding as a passenger in a vehicle. And prior to this

case, in 2018, defendant was convicted of possession of a controlled substance in Iowa. The record

does not support an inference that defendant was so unfamiliar with the criminal justice system

that he did not understand the difference between a jury trial and a bench trial. Accordingly, we

- 14 -
No. 1-22-0455

find that defendant has not established any error, much less plain error, with respect to his jury

waiver.

¶ 47 C. Constitutionality of the AUUW Statute

¶ 48 Defendant next contends that the subsections of the AUUW statute under which he was

convicted are facially unconstitutional pursuant to the United States Supreme Court’s decision in

New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. ___, 142 S. Ct. 2111 (2022). Defendant

did not raise the constitutionality of the AUUW statute in his posttrial motion. However, a

challenge to the constitutionality of a statute may be raised at any time, even if the defendant did

not file a posttrial motion. People v. McCarty, 223 Ill. 2d 109, 122-23 (2006).

¶ 49 We presume statutes to be constitutional. People v. Legoo, 2020 IL 124965, ¶ 29. “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). We must construe the statute in a

manner that upholds its validity and constitutionality if we reasonably can. People v. Graves, 207

Ill. 2d 478, 482 (2003). Defendant makes a facial challenge to the constitutionality of the AUUW

statute, which requires a showing that the statute is unconstitutional under any set of facts, i.e.,

there are no circumstances in which the statute could be validly applied. See People v. Rizzo, 2016

IL 118599, ¶ 24; People v. Davis, 2014 IL 115595, ¶ 25. We review the constitutionality of any

statute de novo. Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 334 (2006).

¶ 50 In Illinois, possession of firearms is governed by both civil and criminal statutes. The

Firearm Owners Identification Card Act (FOID Card Act) provides that “[n]o person may acquire

or possess any firearm *** 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

- 15 -
No. 1-22-0455

the provisions of this Act.” 430 ILCS 65/2(a)(1) (West 2018). The State Police may deny an

application for a FOID card if the applicant is under 21 and does not have the written consent of

his or her parent or guardian. Id. § 8(b). The Firearm Concealed Carry Act requires an individual

to “possess a [CCL] at all times the licensee carries a concealed firearm” in public. 430 ILCS

66/10(g) (West 2018). To obtain a CCL, an applicant must be 21 or older. Id. § 25(1).

¶ 51 Relevant here, the AUUW statute provides that:

“(a) A person commits the offense of aggravated unlawful use of a weapon when

he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealed on

or about his or her person except when on his or her land or in his or her abode,

legal dwelling, or fixed place of business, or on the land or in the legal dwelling of

another person as an invitee with that person’s permission, any pistol, revolver, stun

gun or taser or other firearm; [and]

***

(3) One of the following factors is present:

***

(A-5) the pistol, revolver, or handgun possessed was uncased,

loaded, and immediate accessible at the time of the offense and the person

possessing the pistol, revolver, or handgun has not been issued a currently

valid license under the Firearm Concealed Carry Act; or

***

- 16 -
No. 1-22-0455

(C) the person possessing the firearm has not been issued a currently

valid Firearm Owner’s Identification Card; or

***

(I) the person possessing the weapon was under 21 years of age and

in possession of a handgun, unless the person under 21 is engaged in lawful

activities under the Wildlife Code ***.” 4 720 ILCS 5/24-1.6(a) (West

2018).

Defendant contends that these subsections of the AUUW statute are facially unconstitutional under

Bruen.

¶ 52 In Bruen, the United States Supreme Court announced the following test for the

constitutionality of firearms regulations:

“When 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. Only then may a court conclude that the individual’s conduct falls

outside the Second Amendment’s ‘unqualified command’ ” Bruen, 597 U.S. at ___, 142 S.

Ct. at 2129-30 (quoting Konigsberg v. State Bar of California, 366 U.S. 36, 49 n.10

(1961)).

As the Third District recently explained,

Count I of the indictment cited subsection (a)(3)(A) in addition to subsections (a)(3)(A-5) and
4

(C). We omit subsection (a)(3)(A) because, as best we can tell, it does not apply to defendant. The
evidence established that he possessed a pistol or handgun, but subsection (a)(3)(A) applies to firearms
“other than a pistol, revolver, or handgun.” 725 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2018).

- 17 -
No. 1-22-0455

“[t]his text-and-history standard is a two-part inquiry. The first inquiry is: Does the plain

text of the second amendment cover an individual’s conduct? [Citation.] If not, the

regulation is constitutional because it falls outside the scope of protection. But if it does,

the individual’s conduct is presumptively protected by the second amendment, and we

move to the second inquiry: Is the State’s regulation ‘consistent with the Nation’s historical

tradition of firearm regulation[?]’ [Citation.]” Sinnissippi Rod & Gun Club, Inc. v. Raoul,

2024 IL App (3d) 210073, ¶ 13.

¶ 53 First, we must identify the conduct at issue to determine whether that conduct falls under

the “plain text” of the second amendment. Defendant challenges three subsections of the AUUW

statute, which prohibit possessing a firearm in public (1) without a CCL if the firearm is uncased,

loaded, and immediately accessible; (2) without a FOID card; and (3) while under age 21. See 720

ILCS 5/24-1.6(a)(1), (a)(3)(A-5); (a)(1), (a)(3)(C); (a)(1), (a)(3)(I) (West 2018). Defendant argues

that merely “carrying a handgun in public” is the conduct at issue. We disagree. Possessing a

firearm is only the first part of the AUUW statute, subsection (a)(1). Possessing a firearm in public

becomes the crime of AUUW when one of the factors listed in subsection (a)(3) is present.

Certainly, defendant would not argue that the State could convict him of AUUW simply by proving

that he carried a firearm in public. Accordingly, we find that the conduct at issue is carrying a

firearm outside in public without a CCL if the firearm is uncased, loaded, and immediately

accessible, or without a FOID card, or while being under 21.

¶ 54 Next, we must determine whether these three forms of conduct are protected by the “plain

text” of the second amendment. See Bruen, 597 U.S. at ___, 142 S. Ct. at 2129-30. The plain text

of the second amendment provides that “[a] well regulated Militia, being necessary to the security

- 18 -
No. 1-22-0455

of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const.,

amend. II. However, according to the Supreme Court, “[t]he Second Amendment *** ‘surely

elevates above all other interests the right of law-abiding, responsible citizens to use arms’ for self-

defense.” Bruen, 597 U.S. at ___, 142 S. Ct. at 2131 (quoting District of Columbia v. Heller, 554

U.S. 570, 635 (2008)). The difference between these two quotes is significant. The plain text of

the second amendment connects the right to bear arms with the necessity of a “well regulated

Militia.” U.S. Const., amend. II. By contrast, the Supreme Court’s interpretation does not mention

militias and, in fact, claims that the right to bear arms “does not depend on service in the militia.”

Bruen, 597 U.S. at ___, 142 S. Ct. at 2127 (citing Heller, 554 U.S. at 592). Furthermore, Bruen

limits the second amendment’s scope to (1) citizens who are (2) law-abiding and (3) responsible,

and (4) who use firearms for self-defense. Id. at ___, 142 S. Ct. at 2156 (American government

has not “required law-abiding, responsible citizens to demonstrate a special need for self-

protection distinguishable from that of the general community in order to carry arms in public”

(internal quotation marks omitted)). The plain text of the second amendment contains none of these

terms.

¶ 55 We must decide whether to evaluate Illinois’s AUUW statute based on the actual plain text

of the second amendment or the Supreme Court’s interpretation of the second amendment. The

Illinois Supreme Court has suggested that the United States Supreme Court’s interpretation

controls: “Firearms that have been defaced so that they are untraceable by law enforcement ***

are not covered by the plain text of the second amendment because they are not typically used by

law-abiding citizens for lawful purposes.” (Emphasis added.) People v. Ramirez, 2023 IL 128123,

¶ 27 (citing Heller, 554 U.S. at 625). This court has reached a similar conclusion. In People v.

- 19 -
No. 1-22-0455

Baker, 2023 IL App (1st) 220328, this court explained that “[t]he Bruen Court could not have been

more clear that its newly announced test applied only to laws that attempted to regulate the gun

possession of ‘law-abiding citizens.’ ” Id. ¶ 37 (citing Bruen, 597 U.S. at ___, 142 S. Ct. at 2156).

Baker noted that Bruen repeats the phrase “law-abiding” 18 times between Justice Thomas’s

majority opinion and the concurrences. Id. Indeed, Bruen’s concluding paragraph states that New

York’s firearms regulatory scheme “violates the Fourteenth Amendment in that it prevents law-

abiding citizens with ordinary self-defense needs from exercising their right to keep and bear

arms.” (Emphasis added.) Bruen, 597 U.S. at ___, 142 S. Ct. at 2156. In People v. Mobley, 2023

IL App (1st) 221264, ¶ 27, this court maintained Baker’s conclusion that the Bruen test applies

only to “laws that attempt[ ] to regulate the gun possession of law-abiding citizens.” (Internal

quotation marks omitted.) The district court for the Northern District of Illinois has also “held,

post-Bruen, that the plain text of the Second Amendment does not cover the possession of firearms

by individuals who are not law-abiding.” 5 United States v. Price, 656 F. Supp. 3d 772, 776 (N.D.

Ill. 2023); see United States v. Seiwert, No. 20 CR 443, 2022 WL 4534605, at *2 (N.D. Ill. Sept.

28, 2022) (unlawful users of controlled substances fall outside the second amendment’s protection

as they are not law-abiding).

¶ 56 One panel of this court has suggested that “possession of a firearm is ‘presumptively

constitutional’ ” regardless of whether one is “law-abiding.” See People v. Brooks, 2023 IL App

(1st) 200435, ¶¶ 88-89 (citing Bruen, 597 U.S. at ___, 142 S. Ct. at 2126). Similarly, Justice Alito’s

concurrence claims that Bruen “decides nothing about who may lawfully possess a firearm.”

5
The decisions of federal district courts are not binding on us, but we may consider them as
persuasive authority. Home Star Bank & Financial Services v. Emergency Care & Health Organization,
Ltd., 2012 IL App (1st) 112321, ¶ 37 n.3.

- 20 -
No. 1-22-0455

Bruen, 597 at U.S. at ___, 142 S. Ct. at 2157 (Alito, J., concurring). But we cannot square these

claims with the fact that Bruen expressly and repeatedly limits the second amendment’s scope to

law-abiding citizens. Indeed, the first paragraph of the opinion states that “the Second and

Fourteenth Amendments protect the right of an ordinary, law-abiding citizen to possess a handgun

in the home for self-defense” and “a similar right to carry handguns publicly for their self-defense.”

Id. at ___, 142 S. Ct. at 2122 (majority opinion).

¶ 57 Subsections (a)(3)(A-5) and (a)(3)(C) of the AUUW statute apply exclusively to non-law-

abiding conduct. Possessing a concealed firearm outside the home without a CCL violates section

10(g)(1) of the Firearm Concealed Carry Act. 430 ILCS 66/10(g)(1) (West 2018). Possessing a

firearm without a FOID card violates section 2(a)(1) of the FOID Card Act. 430 ILCS 65/2(a)(1)

(West 2018). Violating the Firearm Concealed Carry Act or the FOID Card Act is not “law-

abiding” conduct so, according to Bruen, the second amendment does not apply to that conduct.

See Baker, 2023 IL App (1st) 220328, ¶ 37 (“Bruen just does not apply” to those who are not law-

abiding). Enforcing subsections of the AUUW statute that simply criminalize what are already

violations of civil laws does not implicate the second amendment. Our analysis of the

constitutionality of subsections (a)(3)(A-5) and (a)(3)(C) ends at the first step of the Bruen test.

¶ 58 Subsection (a)(3)(I) prohibits a person who is under 21 from being “in possession of a

handgun, unless the person under 21 is engaged in lawful activities under the Wildlife Code.” 720

ILCS 5/24-1.6(a)(3)(I) (West 2018). Our supreme court has held that “the public carrying of

firearms by those persons under 21 years of age is conduct that falls outside the scope of the second

amendment” (In re Jordan G., 2015 IL 116834, ¶ 25), so “neither subsection (a)(3)(C)[ ] nor

(a)(3)(I) violates the second amendment rights of *** 18-to-20-year-old persons.” People v.

- 21 -
No. 1-22-0455

Mosley, 2015 IL 115872, ¶ 38. Although Jordan G. and Mosley predate Bruen, their reasoning is

consistent with the “plain text” and historical analysis that Bruen requires. Jordan G. and Mosley

also did not conduct the “means-end” analysis that Bruen prohibits. Bruen, 597 U.S. at ___, 142

S. Ct. at 2127. We do not see how Bruen changes the holdings of Jordan G. or Mosley. Defendant

insists that “Mosley’s historical analysis is incorrect,” but he does not explain how. Regardless,

this court lacks authority to overrule the decisions of the Illinois Supreme Court. People v. Artis,

232 Ill. 2d 156, 164 (2009). Our supreme court has already concluded that subsection (a)(3)(I) of

the AUUW statute is not unconstitutional because it does not implicate the second amendment.

Jordan G., 2015 IL 116834, ¶ 25; Mosley, 2015 IL 115872, ¶¶ 36-38. We follow those holdings.

¶ 59 Defendant argues that the second amendment protects possession of firearms by “all

Americans” without limitation. He does not acknowledge that Bruen limits the second

amendment’s protections to law-abiding citizens, even though Bruen repeats that limitation more

than a dozen times. Similarly, defendant does not acknowledge that multiple Illinois courts have

interpreted Bruen as placing such a limitation on the second amendment. Defendant’s approach to

the “plain text” step of the Bruen test disregards Bruen’s own interpretation of whom the second

amendment protects: law-abiding citizens who possess firearms outside the home for purposes of

self-defense.

¶ 60 Defendant devotes much of his briefs to arguing that Illinois’s civil firearms regulation

regime, rather than the AUUW statute, is unconstitutional. For example, defendant complains that

obtaining a FOID card and a CCL “impose[ ] burdens” like completing a form, submitting a

photograph with the application, and completing 16 hours of firearms training. Defendant also

objects to Illinois requiring a parent or guardian’s permission for an 18-to-20-year-old to obtain a

- 22 -
No. 1-22-0455

FOID card. According to defendant, the fact that a teenager needs parental consent to own a firearm

is “an affront to *** deep constitutional tradition.” 6 That contention is meritless.

¶ 61 In any event, Bruen does not hold or even suggest that Illinois’s FOID Card or Firearm

Concealed Carry Acts are unconstitutional. It suggests the opposite. Bruen held that New York’s

firearm regulation regime was unconstitutional because it allowed state officials to deny a license

to carry a firearm in public based on an applicant’s failure to demonstrate “cause” or “need.” See

Bruen, 597 U.S. at ___, ___, 142 S. Ct. at 2123-24, 2156. That is not how Illinois’s firearm

regulation regime operates. Rather, Illinois is what Bruen calls a “shall-issue” state because the

Illinois State Police shall issue a FOID card and a CCL to any applicant who meets the respective

statutory criteria. People v. Gunn, 2023 IL App (1st) 221032, ¶¶ 16, 22. Bruen states that “nothing

in our analysis should be interpreted to suggest the unconstitutionality of *** ‘shall-issue’

licensing regimes.” Bruen, 597 U.S. at ___ n.9, 142 S. Ct. at 2138 n.9. This court has held that,

under Bruen, Illinois’s FOID Card Act and Firearm Concealed Carry Act are not facially

unconstitutional. Gunn, 2023 IL App (1st) 221032, ¶¶ 19, 29. We see no reason to revisit that

holding. Accordingly, we hold that subsections (a)(3)(A-5), (a)(3)(C), and (a)(3)(I) of the AUUW

statute are not facially unconstitutional under Bruen.

¶ 62 D. One-Act, One-Crime

6
The Office of the State Appellate Defender’s (OSAD) apparent position that 18-to-20-year-olds
are adults who are fully entitled to unrestricted ownership of firearms is difficult to square with OSAD’s
position that, for purposes of sentencing, defendants as old as 22 or 23 are effectively juveniles because
their brains have not finished developing. See, e.g., People v. Buford, 2023 IL App (1st) 201176, ¶ 45.

- 23 -
No. 1-22-0455

¶ 63 Finally, defendant argues that, if we affirm his convictions, we should vacate all but one

of them pursuant to the one-act, one-crime rule because each of the four counts of AUUW involved

the same act of possessing one firearm. The State agrees.

¶ 64 Defendant did not preserve this issue because he did not raise it in his posttrial motion. See

People v. Hagler, 402 Ill. App. 3d 149, 152 (2010). However, he requests review under the second

prong of the plain error rule. One-act, one-crime violations fall under the second prong of the plain

error rule. People v. McWilliams, 2015 IL App (1st) 130913, ¶ 15.

¶ 65 The one-act, one-crime rule prohibits multiple convictions based on the same physical act.

People v. Akins, 2014 IL App (1st) 093418-B, ¶ 17. An “act” is “ ‘any overt or outward

manifestation which will support a different offense.’ ” (Internal quotation marks omitted.) People

v. Quinones, 362 Ill. App. 3d 385, 397 (2005) (quoting People v. Rodriguez, 169 Ill. 2d 183, 188

(1996)). Illinois courts have generally held that possession of one firearm is a single physical act

that can only support one conviction. See, e.g., id.; West, 2017 IL App (1st) 143632, ¶ 25 (finding

a one-act, one-crime violation where the defendant’s AUUW and armed habitual criminal

convictions were based on the possession of one firearm). We follow that authority and conclude

that defendant can only be convicted of one count of AUUW due to his possession of one firearm.

¶ 66 However, that does not undermine our conclusion that, for purposes of constitutionality

under the Bruen test, the “conduct” that the AUUW statute prohibits is possessing a firearm under

subsection (a)(1) plus one of the factors in subsection (a)(3). Defendant’s constitutional argument

and his one-act, one-crime argument involve different “halves” of the AUUW statute. The

constitutional argument addresses the nonphysical factors in subsection (a)(3) that make physical

possession of a firearm a crime. By contrast, the one-act, one-crime argument addresses physical

- 24 -
No. 1-22-0455

possession of a firearm under subsection (a)(1). In other words, the one-act, one-crime analysis

asks how many firearms defendant possessed and how many convictions can be entered. The

constitutional analysis asks whether a state can criminalize the possession of a firearm based on

age and noncompliance with civil firearms regulations.

¶ 67 When multiple convictions violate the one-act, one-crime rule, we must vacate the less

serious convictions. Artis, 232 Ill. 2d at 170. To determine which offense is less serious, we first

examine the potential punishment for each offense. In re Samantha V., 234 Ill. 2d 359, 379 (2009).

All four counts of AUUW in this case are Class 4 felonies that carry the same punishment. 720

ILCS 5/24-1.6(d) (West 2018). We must next examine which offense has the more culpable mental

state. Samantha V., 234 Ill. 2d at 379. All four counts have the same mental state, which is

“knowingly.” 720 ILCS 5/24-1.6(a) (West 2018). We cannot determine which of the counts is the

most serious, so we remand to the trial court for that determination. People v. Jackson, 2016 IL

App (1st) 133823, ¶ 68.

¶ 68 III. CONCLUSION

¶ 69 For the foregoing reasons, we affirm the denial of defendant’s motion to quash arrest and

suppress evidence, the trial court’s acceptance of his jury waiver, and the constitutionality of his

convictions for AUUW. However, we find that defendant’s four AUUW convictions for one act

of possessing a firearm violate the one-act, one-crime rule, and we remand to the trial court to

determine which counts should be vacated and which one should stand.

¶ 70 For the foregoing reasons, we affirm and remand.

¶ 71 Affirmed and remanded.

- 25 -
No. 1-22-0455

People v. Hatcher, 2024 IL App (1st) 220455

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 19-CR-
11210; the Hon. John T. Gallagher, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Matthew M. Daniels, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Jessica R. Ball, and James J. Stumpf, Assistant State’s
Appellee: Attorneys, of counsel), for the People.

- 26 -