2025 IL App (4th) 241451-U
NO. 4-24-1451 NOTICE FILED This Order was filed under IN THE APPELLATE COURT October 15, 2025 Supreme Court Rule 23 and is Carla Bender not precedent except in the 4th District Appellate OF ILLINOIS limited circumstances allowed Court, IL under Rule 23(e)(1). FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County MESSIAH CARPENTER, ) No. 23CF509 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Paul P. Gilfillan, Judges Presiding.
JUSTICE CAVANAGH delivered the judgment of the court. Justices Zenoff and Doherty concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, finding (1) the trial court did not err when denying defendant’s motion to suppress evidence, (2) the court did not err when imposing defendant’s sentence, (3) the aggravated unlawful use of a weapon statute was not facially unconstitutional, and (4) defendant’s as-applied challenge was premature.
¶2 In August 2024, following a stipulated bench trial, the trial court convicted
defendant, Messiah Carpenter, of aggravated unlawful use of a weapon (AUUW) (720 ILCS
5/24-1.6(a)(1) (West 2022)). On appeal, defendant argues (1) the court erred when denying his
motion to suppress, (2) the court erred when imposing sentence, and (3) the AUUW statute
violates the second amendment (U.S. Const., amend. II) both on its face and as applied to him
pursuant to the United States Supreme Court’s decision in New York State Rifle & Pistol Ass’n v.
Bruen, 597 U.S. 1 (2022). We disagree and affirm.
¶3 I. BACKGROUND ¶4 In July 2023, defendant was charged by indictment with AUUW for knowingly
possessing a handgun on his person in public while not possessing the requisite firearm owners
identification card or concealed carry permit.
¶5 In May 2024, defendant filed a motion to suppress evidence arguing the police
lacked probable cause to search, detain, arrest, and subsequently seize the handgun found on his
person. A hearing on his motion occurred on August 7, 2024.
¶6 At the hearing, police officer Joseph Smiles testified he was working on the
evening of July 3, 2023, when he observed defendant walking near the intersection of Arcadia
Street and Delaware Street in Peoria, Illinois. Smiles stated he had known defendant for “[q]uite
a while,” clarifying, “at least a year, maybe two.” Smiles recalled observing defendant in the
passenger seat of a stolen vehicle through the Flock system (an automated video surveillance
technology). Smiles was alerted to an image matching the criteria of a stolen vehicle by the
Flock system approximately half an hour prior to encountering defendant. Smiles described the
Flock system image as showing defendant in the passenger seat and a “black male with black
glasses[ and a] black hoodie” in the driver’s seat. He could not identify the driver. When asked
how he was able to identify defendant in the image, Smiles stated “[he] looked at his face on the
photo when [he] received it.” Counsel for defendant drew Smiles’s attention to a printed version
of the image and stated, “You can’t see [defendant’s] face.” Smiles conceded the printed image
was the same photograph but noted the electronic version was a better-quality photograph and
reiterated his belief the image showed defendant.
¶7 Smiles denied sending the image to another police agency for facial recognition.
He stated the police report, which indicated the image would be sent for further facial
recognition, was written by a different officer. He also identified a photograph of a “hoodie”
-2- defendant was wearing at the time of his arrest. Smiles believed defendant was wearing the same
hoodie in the Flock system image. He noted the hoodie had an emblem on the “chest area on the
left side” and half of the emblem was “cut off by the A-pillar of the vehicle.” Smiles stated a
portion of the emblem from the hoodie was observable on the Flock system image. On cross-
examination, Smiles was shown an electronic version of the Flock system image, and he stated it
was much clearer.
¶8 Police officer Andrew Redpath testified he was also working on July 3, 2023, and
had known defendant approximately two years. He stated he first saw defendant on July 3, when
he recognized him on the Flock system image. When he observed defendant again half an hour
later walking down the street, he initiated contact with him. He asked defendant to speak with
him and then asked him if he had anything “illegal on him.” Redpath said defendant denied
having anything illegal on his person. Redpath then said he arrested defendant. When asked what
he knew at the time he placed defendant in custody, Redpath said he knew defendant “was in a
stolen vehicle which was photographed by the Flock system.” Redpath stated the digital Flock
system image was “better quality” than the printed image used at the hearing. He said he was not
familiar with the driver, but he recognized the passenger. He also recognized the hoodie
defendant was wearing at the time of his arrest as consistent with the hoodie of the passenger in
the Flock system image.
¶9 The trial court noted the digital version of the Flock system image was
discernably clearer. The court stated both officers were “acquainted with” defendant and both
had identified him. The court said, “[I]f they’re already acquainted with [defendant], they’re
going to know him. I can see [defendant’s] face, and the State’s arguments are well taken.” The
court denied defendant’s motion.
-3- ¶ 10 On August 19, 2024, defendant waived his right to a jury trial, and the matter
proceeded to a stipulated bench trial. The State proffered that on July 3, 2023, Peoria police
officers were investigating an unrelated incident and wanted to speak with defendant about that
incident. Officers observed defendant on a public roadway and initiated contact with him. He
was handcuffed and, prior to being transported, was patted down for safety purposes. Officers
discovered a Glock handgun in defendant’s waistband. The gun was “uncased, loaded and
accessible to [defendant].” At the time of defendant’s arrest, he had not been issued a valid
firearm owners identification card or concealed carry license.
¶ 11 Counsel for defendant stipulated the facts proffered by the State were accurate
and stated, “We’re doing this for the record preserving our right to appeal the suppression
hearing which was held a couple of weeks ago and the Court found in that hearing that my client
was properly detained and searched when he was taken into custody.” Both parties waived
argument. The trial court found the State had proven defendant guilty of AUUW beyond a
reasonable doubt.
¶ 12 In September 2024, defendant filed a motion for a new trial or, alternatively, for a
judgment notwithstanding the verdict. The motion argued the trial court erred when finding the
Flock system image was sufficient to permit officers to identify defendant for the purposes of
probable cause to detain him on July 3, 2023. The court stated it would not overturn the ruling of
the judge who presided over the motion to suppress hearing and denied defendant’s motion. The
matter immediately proceeded to sentencing.
¶ 13 A presentence investigation report (PSI) was admitted into evidence, along with
two supplements. The PSI showed defendant, who was 20 years old at the time of sentencing,
had no prior criminal or juvenile record and was unemployed due to his current incarceration in
-4- the Peoria County jail. The PSI also showed defendant was indicted in May 2024 for first degree
murder. According to the report, defendant had graduated high school one year early, with a
cumulative grade point average of 1.66. Defendant recalled being suspended from school for
“ ‘petty things.’ ” School disciplinary records revealed defendant had been suspended or received
detention “numerous times.” The PSI stated defendant’s disciplinary record dated back to 2010,
when he was six years’ old. Defendant had been disciplined “over 70 times for physically
fighting/choking/attacking other students, making threats to hurt or kill students and/or teachers,
vandalizing property of others, stealing property of others, and even running from Peoria Police
after being detained at school.”
¶ 14 Defendant gave a statement in allocution wherein he admitted to possessing a
firearm at the time of his arrest. However, he contended officers “were out to get” him and that
he was not in the photograph taken by the Flock system. He contended officers lied in order to
arrest him. He stated it was a nonviolent crime, and he possessed the gun for personal protection.
¶ 15 The trial court began by noting it had considered the PSI, the evidence, arguments
of the parties, defendant’s statement in allocution, the statutory factors in aggravation and
mitigation, and defendant’s history and character. The court stated the “most significant finding”
was defendant’s lack of a criminal history. The court found defendant’s gun possession did not
threaten serious harm to another person but stated, “[W]e all know that it’s just one short step
away from having a gun right at your disposal to using it.” The court found a sentence was
necessary to deter others from committing gun crimes, stating, “The message continues to, needs
to be sent to people. Guns are a scourge on our society.” Although defendant lacked a criminal
history, the court stated defendant’s school disciplinary records were “amongst the longest” it
had received—75 pages, with each page containing “a summary of multiple transgressions.” The
-5- court said defendant was not being sentenced based on the school disciplinary records, but they
were a factor as to whether he would likely comply with probation. The court noted that because
of defendant’s other pending matter, he “might not be out of jail in any event if probation was
ever awarded.” However, the court found probation would be inconsistent with the ends of
justice and stated, “[A]ny gun crime sentence to prison would be justified by the very nature of
the dangerousness of guns notwithstanding the cost to incarcerate.” The court sentenced
defendant to one year and nine months in prison.
¶ 16 In November 2024, defendant filed a motion to reconsider his sentence, arguing
(1) the trial court failed to consider numerous mitigating factors, (2) officers lacked probable
cause for his initial arrest, (3) there was a statutory presumption for the imposition of a term of
probation, and (4) the court was unfairly made aware of his other pending charges.
¶ 17 When considering defendant’s motion, the trial court stated, even though they
were included in the PSI, defendant’s pending charges and school disciplinary record were not
factors in its sentencing determination. The court stated defendant received a “medium range”
sentence, which was “deserved under [the] circumstances of this case.” The court denied
defendant’s motion.
¶ 18 This appeal followed.
¶ 19 II. ANALYSIS
¶ 20 On appeal, defendant argues (1) the trial court erred by denying his motion to
suppress, (2) the court erred when imposing his sentence, and (3) the AUUW statute violates the
second amendment both on its face and as applied pursuant to the United States Supreme Court’s
decision in Bruen. We address each argument in turn.
¶ 21 A. Motion to Suppress Claim
-6- ¶ 22 Defendant first argues the trial court erred when denying his motion to suppress.
He contends, pursuant to Neil v. Biggers, 409 U.S. 188 (1972), the Flock system image provided
an insufficient opportunity for the officers to view the subject, therefore making the officers’
identification of defendant unreliable.
¶ 23 The State initially contends defendant forfeited portions of his argument by
failing to raise them before the trial court. Specifically, the State contends defendant has forfeited
his statistical and scientific research claims. Therefore, we must first determine whether
defendant has forfeited any of his arguments.
¶ 24 “It is well settled in Illinois that an appellant who fails to raise an issue before the
trial court forfeits the issue and may not raise it for the first time on appeal.” Williams v.
Bruscato, 2019 IL App (2d) 170779, ¶ 24. To avoid forfeiture, a party must preserve an issue on
appeal, but they are not required to preserve an argument on appeal. See Brunton v. Kruger,
2015 IL 117663, ¶ 76 (“We require parties to preserve issues or claims for appeal; we do not
require them to limit their arguments [on appeal] to the same arguments that were made
below.”). It is clear from the record defendant has consistently intended on preserving the issue
of the trial court’s denial of his motion to suppress based on whether the Flock system image
provided the officers with a sufficient opportunity to identify him. Therefore, we find defendant
has not forfeited this issue and his related arguments on appeal.
¶ 25 1. Standard of Review and Applicable Law
¶ 26 “In determining whether a trial court has properly ruled on a motion to suppress,
findings of fact and credibility determinations made by the trial court are accorded great
deference and will be reversed only if they are against the manifest weight of the evidence.”
People v. Slater, 228 Ill. 2d 137, 149 (2008). We review de novo the trial court’s decision
-7- whether to deny a motion to suppress. People v. Drain, 2023 IL App (4th) 210355, ¶ 24.
¶ 27 When assessing the reliability of identification testimony, reviewing courts have
relied upon the factors set forth in Biggers, which include:
“(1) the opportunity of the witness to view the criminal at the time of the crime,
(2) the witness’ degree of attention, (3) the accuracy of the witness’ prior
description of the criminal, (4) the level of certainty demonstrated by the witness
at the confrontation, and (5) the length of time between the crime and the
confrontation.” People v. Piatkowski, 225 Ill. 2d 551, 567 (2007) (citing Biggers,
409 U.S. at 199-200).
No single factor is dispositive, and the reliability of the identification is based on the totality of
the circumstances. Biggers, 409 U.S. at 199.
¶ 28 2. Opportunity to View
¶ 29 Regarding the first factor, defendant argues the image cast the passenger of the
vehicle in a shadow while partially obstructing his facial features. He cites In re O.F., 2020 IL
App (1st) 190662, in support.
¶ 30 In O.F., the appellate court noted the officer had the opportunity to view a
juvenile during the daytime, but it was raining and “not a bright, clear day.” Id. ¶ 37.
Additionally, the court noted the officer’s vantage point made it such that it was “devoid of
physical attributes such as the individual’s clothing, height, and weight upon which the viewer
can seize to aid an identification.” Id. ¶ 38. Lastly, the court noted the officer identified “no
distinguishing characteristics.” Id.
¶ 31 We find O.F. distinguishable from the instant case. First, the image at issue here
was taken on a bright, clear day where both the driver and passenger of the vehicle were readily
-8- observable. Both officers testified to observing the hooded sweatshirt the passenger was wearing
as consistent with what defendant was wearing at the time of his arrest half an hour later. Lastly,
both officers testified to their familiarity with defendant. Accordingly, we find the opportunity to
view the subject in the image does not weigh in favor of defendant.
¶ 32 3. Degree of Attention
¶ 33 Defendant argues there was no testimony concerning the amount of attention or
time officers devoted to viewing the Flock image. He concedes that because it was an image, it
would have provided the officers with an opportunity to pay closer attention than an instance of a
fleeting in-person encounter. However, he maintains the lack of testimony on this issue weighs in
his favor because the State bears the burden of establishing eyewitness reliability.
¶ 34 We are reviewing the trial court’s determination for error de novo and any factual
determinations made by the court under the manifest weight of the evidence standard. Defendant
carries the burden of persuasion as to his claims of error on appeal. Insurance Benefit Group,
Inc. v. Guarantee Trust Life Insurance Co., 2017 IL App (1st) 162808, ¶ 44. He cannot show
error by merely relying on a dearth of evidence he himself failed to elicit or explore at the motion
hearing. While there was no specific testimony as to the officers’ degree of attention to the Flock
image, there is nothing in this record to suggest either officer was inattentive to its content.
Accordingly, we find this factor does not weigh in defendant’s favor.
¶ 35 4. Accuracy of Prior Description
¶ 36 Defendant next notes both officers testified he was wearing a similar hooded
sweatshirt in the image as when he was subsequently arrested. A photograph of the hooded
sweatshirt shows a white circular emblem on the left chest, which officers noted was partially
visible in the Flock image. Defendant argues neither officer noted anything “particular” about the
-9- hooded sweatshirt, but the photograph exhibit of the sweatshirt shows it is “ ‘bedazzled’ ” with
rhinestones along the exterior of the hood. Defendant notes the passenger in the Flock image has
the hood pulled up over his head, making the hood visible, but no rhinestones are observable.
After noting these distinctions, defendant contends the officers’ generic description of his hoodie
is representative of clothing bias. He cites People v. McCoy, 2025 IL App (1st) 240198-U, ¶ 6,
where a defendant in a successive postconviction proceeding presented the testimony of an
expert on eyewitness identification to contend a lineup was inadequately performed.
¶ 37 Regarding defendant’s contentions of clothing bias, we are unpersuaded. The
defendant in McCoy presented the testimony of an expert witness to advance a theory of clothing
bias regarding the performance of an identification lineup. Id. The circumstances in this case are
substantially different, and no expert testimony was offered at the motion hearing. Defendant
cannot simply ride the coattails of expert testimony presented for the specific facts of one case
and apply said testimony to the specific facts of this unrelated case.
¶ 38 Defendant, however, is correct that neither officer testified to having observed the
rhinestones on the hood of the sweatshirt of the passenger in the Flock image. Our review of the
photograph of the sweatshirt clearly shows numerous rhinestones emblazoned on the outside of
the hood. However, when we review the Flock image, it shows a majority of the passenger’s face
absent the right cheek area and only the top portion of the external part of the hood is visible. It
is not clear from our review that any rhinestones can be observed on the visible outer portions of
the passenger’s hood. However, the white emblem on the left chest of the passenger’s sweatshirt
does correspond sufficiently with the sweatshirt photograph as testified to by both officers.
Accordingly, we find this factor weighs in neither party’s favor.
¶ 39 5. Degree of Certainty
- 10 - ¶ 40 Defendant argues this factor is neutral because social science research has
discredited the notion of confidence regarding eyewitness identification. He cites various cases
standing for this or a related proposition.
¶ 41 Regardless of whether defendant is correct about the body of scientific research
on this issue, it does not change the testimony of the officers at the motion hearing that both were
familiar with defendant from prior contacts. When the officers viewed the Flock image, they
both recognized defendant as the passenger. There is no evidence before us contradicting their
testimonies. Accordingly, we find this factor does not weigh in defendant’s favor.
¶ 42 6. Elapsed Time
¶ 43 Lastly, defendant argues the time elapsed between officers viewing the Flock
image and subsequently making an in-person visual identification of him is a neutral factor. He
concedes the 30-minute interval is a short period of time but argues the officers rested their
identification on their familiarity with him. He contends the officers’ familiarity with him should
not be viewed as a proxy for reliability given the basis for their recognition, the Flock image
itself, is so unclear.
¶ 44 The evidence from the hearing showed the officers were alerted to the Flock
image approximately half an hour prior to making visual contact with defendant. Both officers
recalled recognizing defendant from the image. When they observed him walking down the
street, they initiated contact regarding an allegedly stolen vehicle. There is nothing from the
hearing evidence to suggest the elapsed time between officers viewing the Flock image and
defendant’s subsequent arrest that would make the identification of defendant unreliable.
Accordingly, this factor does not weigh in defendant’s favor.
¶ 45 Having reviewed both the printed image that was utilized by defendant at the
- 11 - motion hearing and the digital version, it is undoubtedly clear the digital version of the Flock
image is higher quality. For all the deficiencies the Flock image may have, there are two
individuals that can be observed in the image: (1) a Black male driver who is wearing sunglasses,
a black hooded sweatshirt, and what appears to be a white undershirt and (2) a Black male
passenger who is wearing a black hooded sweatshirt with a portion of a white emblem on the left
chest. The driver’s face is obscured somewhat by his sunglasses, while the right quarter of the
passenger’s face is obscured by the A pillar of the vehicle itself. Given the relative clarity of the
faces of the vehicle’s occupants, we find it reasonable that a person who was familiar with its
occupants would be able to recognize said individuals. Therefore, given the totality of the
circumstances, we find the trial court did not err when denying defendant’s motion to suppress.
¶ 46 B. Sentencing Error Claims
¶ 47 Defendant next argues the trial court erred by relying on improper factors when
imposing sentence. Specifically, he argues the court (1) relied on unproven pending charges
without any evidentiary support and (2) applied a de facto policy of imprisonment for gun
offenses rather than exercising individual discretion. We address each claim in turn.
¶ 48 First, defendant claims the trial court improperly considered his pending criminal
charges when fashioning the sentence. He bases his claim on the State’s multiple references to
those charges, coupled with the court’s refusal to consider probation and departing from the
presumption.
¶ 49 “There is a strong presumption that the trial court based its sentencing
determination on proper legal reasoning, and a court of review should consider the record as a
whole, rather than focusing on a few words or statements by the trial court.” People v.
Canizalez-Cardena, 2012 IL App (4th) 110720, ¶ 22. The defendant bears the burden to
- 12 - affirmatively establish the sentence imposed was based on an improper factor. People v.
Sturgeon, 2019 IL App (4th) 170035, ¶ 103. A sentence will not be reversed unless it is evident
the trial court relied upon an improper factor. Id. “Whether the trial court relied upon an
improper factor at sentencing is a question of law reviewed de novo.” Id.
¶ 50 As defendant notes in his brief, he raised this issue in his motion to reconsider
sentence. The trial court never referenced defendant’s pending charges as a basis for its
sentencing consideration and, in fact, stated at the hearing on the motion to reconsider that it had
not based its sentencing decision on defendant’s pending criminal charges. The fact that
defendant did not have a criminal history was a significant mitigating factor. However, the mere
presence of mitigating factors does not require a minimum sentence. People v. Jones, 2014 IL
App (1st) 120927, ¶ 55. The fact defendant did not receive probation or even the minimum
sentence of imprisonment does not mean the court improperly considered his pending criminal
charges. The court clearly articulated the factors it had considered, none of which included what
defendant complains of here. Accordingly, we find defendant has not affirmatively shown his
sentence was based on an improper consideration of his pending criminal charges.
¶ 51 Next, defendant argues the trial court abused its discretion when it applied a
categorical sentencing policy for gun offenses rather than exercising individual discretion. He
again notes the statutory presumption of probation. See 730 ILCS 5/5-6-1(a) (West 2024). He
contends the court’s comments, “The message continues to, needs to be sent to people. Guns are
a scourge on our society,” and later, “[A]ny gun crime sentence to prison would be justified by
the very nature of the dangerousness of guns notwithstanding the cost to incarcerate” show the
court imposed an improper categorical policy of automatic imprisonment for gun offenses.
¶ 52 “The legislature sets forth by statute the range of permissible sentences for each
- 13 - class of criminal offense.” People v. Fern, 189 Ill. 2d 48, 53 (1999). A reviewing court affords
great deference to a trial court’s sentencing judgment because, “having observed the defendant
and the proceedings, [it] is in a far better position to consider such factors as the defendant’s
credibility, demeanor, general moral character, mentality, social environment, and habits than a
reviewing court, which must rely on a ‘cold’ record.” People v. Little, 2011 IL App (4th)
090787, ¶ 24. A sentence that falls within the applicable statutory limits is reviewed for an abuse
of discretion. People v. Price, 2011 IL App (4th) 100311, ¶ 36. “A sentence within statutory
limits will not be deemed excessive and an abuse of the court’s discretion unless it is ‘greatly at
variance with the spirit and purpose of the law or manifestly disproportionate to the nature of the
offense.’ ” People v. Pina, 2019 IL App (4th) 170614, ¶ 20 (quoting Fern, 189 Ill. 2d at 54).
¶ 53 Here, defendant was found guilty of AUUW, a Class 4 felony. 720 ILCS
5/24-1.6(d) (West 2022). A Class 4 felony carries a potential term of imprisonment of not less
than one year and not more than three years. 730 ILCS 5/5-4.5-45(a) (West 2024); see 720 ILCS
5/24-1.6(d)(2) (West 2022). Because defendant’s sentence was within the permissible range, we
begin with the presumption the sentence was proper. People v. Knox, 2014 IL App (1st) 120349,
¶ 46.
¶ 54 The abuse of discretion standard is deferential to sentencing courts. People v.
Fisher, 407 Ill. App. 3d 585, 589 (2011). In this case, the trial court noted, as mitigating factors,
defendant’s lack of criminal history and that his unlawful possession of a firearm did not threaten
serious harm. As we stated earlier, the mere presence of mitigating factors does not require a
minimum sentence. Additionally, a sentencing court is not required to afford greater weight to
mitigating factors than to the severity of the offense. People v. Alexander, 239 Ill. 2d 205, 214
(2010); see People v. Quintana, 332 Ill. App. 3d 96, 109 (2002) (noting the seriousness of the
- 14 - offense is the most important sentencing factor). The court considered defendant’s voluminous
school disciplinary record when determining he was unlikely to comply with conditions of
probation. The court found imprisonment was necessary to deter others and probation would be
inconsistent with the ends of justice. Ultimately, the court was in a better position to observe
defendant’s conduct and to weigh the need for a sentence beyond the minimum statutory
requirement. “[A]n abuse of discretion occurs where the trial court’s decision is arbitrary,
fanciful, or unreasonable to the degree that no reasonable person would agree with it.” People v.
McDonald, 2016 IL 118882, ¶ 32. Nothing from this record suggests the court’s sentencing
determination was arbitrary, fanciful, or unreasonable. Accordingly, we find no reason to
conclude the court’s sentence was disproportionate to the nature of the offense.
¶ 55 C. Constitutional Claims
¶ 56 Lastly, defendant argues the AUUW statute is unconstitutional both on its face
and as applied to him under the second amendment. He claims there is no analogous history and
tradition to justify Illinois’s requirement a person acquire a firearm owners identification card
pursuant to section 2(a)(1) of the Firearm Owners Identification Card Act (FOID Card Act) (430
ILCS 65/2(a)(1) (West 2022) and/or a concealed carry license pursuant to section 10 of the
Firearm Concealed Carry Act (Concealed Carry Act) (430 ILCS 66/10 (West 2022)) to exercise
his constitutional right to bear arms.
¶ 57 1. Second Amendment Facial Constitutional Challenge
¶ 58 We begin by noting the issue of the constitutionality of the AUUW statute and its
relationship to the FOID Card Act and Concealed Carry Act was recently addressed by our
supreme court in People v. Thompson, 2025 IL 129965. Our supreme court stated clearly, “For
the reasons expressed in Bruen itself, Illinois’s shall-issue regime is not facially unconstitutional
- 15 - under the second amendment.” Id. ¶ 53. Aside from arguing Thompson was wrongly decided for
failing to conduct a historical inquiry, defendant offers no reason for this court to reject the
holding in Thompson. Because this issue has been squarely decided by Thompson, we decline
defendant’s invitation to reject Thompson and find no basis to conclude the AUUW statute is
facially unconstitutional, as argued by defendant.
¶ 59 2. Second Amendment As-Applied Challenge
¶ 60 In response to defendant’s as-applied challenge, the State argues it is premature
because he failed to establish he attempted to legally possess a firearm and was thwarted by the
statute he is challenging. Defendant contends his as-applied challenge is appropriate for review
for the first time on direct appeal where the record is sufficiently developed.
¶ 61 We stated in People v. Ivy, 2023 IL App (4th) 220646-U, ¶ 14:
“ ‘The distinction between facial and as-applied constitutional challenges
is critical.’ People v. Harris, 2018 IL 121932, ¶ 38. An as-applied constitutional
challenge requires a defendant show a ‘statute is unconstitutional as it applies to
the specific facts and circumstances’ of that defendant. Id. Because an as-applied
constitutional challenge depends on the specific facts and circumstances of that
defendant, it is vital the record be sufficiently developed on the defendant’s
specific facts and circumstances for appellate review. Id. ¶ 39. ‘A court is not
capable of making an “as applied” determination of unconstitutionality when
there has been no evidentiary hearing and no findings of fact. [Citation.] Without
an evidentiary record, any finding that a statute is unconstitutional “as applied” is
premature.’ (Internal quotation marks omitted.) Id.”
¶ 62 We agree with the State. There is no basis in this record to conclude defendant’s
- 16 - as-applied challenge is ripe for review. See People v. House, 2021 IL 125124, ¶ 31 (holding the
appellate court erred when addressing an as-applied constitutional challenge pursuant to the
proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) without a
developed evidentiary record or factual findings). Accordingly, we find defendant’s as-applied
challenge is premature.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we affirm the trial court’s judgment.
¶ 65 Affirmed.
- 17 -