People v. Grant

2014 IL App (1st) 100174-B, 24 N.E.3d 80

• Court: Appellate Court of Illinois
• Decided: December 15, 2014
• Docket: 1-10-0174
• Status: Unpublished

Opinion

2014 IL App (1st) 100174-B

FIRST DIVISION DECEMBER 15, 2014

No. 1-10-0174

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of ) Cook County Plaintiff-Appellee, ) ) No. 09 CR 12104 v. ) ) CHARLES GRANT, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Justices Hoffman and Rochford concurred in the judgment and opinion.

OPINION

¶1 The defendant-appellant Charles Grant was arrested in June 2009 on the front porch of

his residence at 10920 South Wabash Avenue, Chicago, Illinois (the Grant residence), after

police found him carrying a loaded handgun. The defendant was charged with four counts of

violating Illinois' aggravated unlawful use of a weapon (AUUW) statute. 720 ILCS 5/24-

1.6(a)(1)-(2), (a)(3)(A), (a)(3)(C) (West 2008). Two of those counts related to the prohibition in

section 24-1.6(a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(3)(A) (West 2008))

against carrying an "uncased, loaded and immediately accessible" firearm. Specifically, count I

charged the defendant with carrying such a weapon "at a time when he was not on his own land,

abode or fixed place of business" pursuant to section 24-1.6(a)(1), (a)(3)(A), and count III

charged the defendant with carrying such a weapon while on a public street in violation of

section 24-1.6(a)(2), (a)(3)(A). The remaining two counts against the defendant concerned 1-10-0174

separate provisions of the AUUW statute which prohibit the carrying of a firearm by one who

"has not been issued a currently valid Firearm Owner's Identification Card [FOID card]." Count

II alleged that the defendant lacked a valid FOID card while carrying a firearm while not on his

own land, abode, or place of business in violation of section 24-1.6(a)(1), (a)(3)(C), and count IV

alleged that the defendant had carried a firearm on a public street without a FOID card in

violation of section 24-1.6(a)(2), (a)(3)(C).

¶2 The circuit court of Cook County conducted a bench trial on September 23, 2009. Dan

Kasper, the Chicago police officer who arrested the defendant, testified that he and his partner,

Officer Mohammad, were on patrol in an unmarked police car on June 19, 2009 when they

received a report of "shots fired" in the vicinity of the Grant residence at 10:20 p.m. The officers

proceeded to "check[] out the neighborhood" of the reported gunfire. As the police car neared

the Grant residence, Officer Kasper observed the defendant standing on the sidewalk in front of

the residence. When the defendant saw the police car, he turned and ran toward the residence.

Officer Kasper saw a handgun in the defendant's hand and exited the police car in pursuit of the

defendant. Officer Kasper testified that the defendant ran up the front stairs of the house onto the

porch and tried to enter the house. However, Officer Kasper was able to apprehend the

defendant on the front porch, where four or five other men were sitting. Officer Kasper

recovered a loaded .38-caliber revolver from the defendant's right hand.

¶3 The defendant was placed into custody and spoke with the officers after he was read his

Miranda rights. According to Officer Kasper, the defendant stated he had a handgun for

protection because there had been a lot of shooting in the area. The defendant told the officers

that he bought the handgun for $75 from a "crack head" about three months earlier. Officer

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Kasper also testified that he asked the defendant if he had a current valid FOID card, and the

defendant responded that he did not. At no point did the defendant present a valid FOID card.

¶4 Officer Mohammad's testimony corroborated Officer Kasper's recollection of events.

Officer Mohammad testified that he and Officer Kasper responded to a radio call of "shots fired"

in the vicinity of the Grant residence. Officer Mohammad testified that he observed the

defendant standing on the sidewalk in front of the residence with a handgun in his right hand and

that the defendant turned and ran towards the residence. Officer Mohammad corroborated that

Officer Kasper exited the police car, apprehended the defendant on the front porch of the

residence, and recovered a handgun from the defendant. The parties stipulated that police

recovered a loaded .38-caliber handgun from the defendant.

¶5 Junior Grant (Junior), the defendant's younger brother, testified that at 10 p.m. on the

night of the defendant's arrest, he, their brother Edward, and two other friends were sitting on the

porch of the Grant residence drinking with the defendant. Contrary to the arresting officers'

testimony, Junior stated that the defendant was on the porch the whole time and did not go to the

sidewalk. According to Junior, the defendant had a cell phone in one hand and a drink in the

other. Junior testified that a police officer approached the porch with his gun drawn, searched

the defendant, and found a weapon.

¶6 The defendant testified that on the evening of his arrest he was on the porch of the Grant

residence with his brothers celebrating his brother Edward's birthday. Around 10:20 p.m., the

group heard gunshots in the area. The defendant testified that 5 or 10 minutes later, he was

talking on his cellular phone when the police "rushed [the] porch." The defendant stated that he

was holding his cellular phone in one hand and a beverage in his other hand. The defendant

testified that he asked the police if he could go inside the house to get his "ID." The defendant

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stated that a police officer threw him against a wall, searched him, and found a handgun that he

was carrying in his pocket.

¶7 The defendant acknowledged in his testimony that he told the police that he purchased

the handgun for his own protection because there had been shooting incidents in the

neighborhood. The defendant testified that he bought the handgun from a "crack head" for $75.

The defendant stated that on the night of his arrest he remained on the porch, was not on the

sidewalk, and denied that he had run from the police.

¶8 After hearing closing argument from defense counsel, the trial court made a general

finding that the defendant was guilty of violating the AUUW statute. On December 21, 2009,

the trial judge sentenced the defendant to 18 months of probation, in addition to statutory fines

and costs.

¶9 On January 6, 2010, the defendant filed a timely notice of appeal in this court. In that

appeal, the defendant argued that the AUUW statute's prohibition against carrying an "uncased,

loaded and immediately accessible" firearm outside one's home or place of business was

unconstitutional both on its face and as applied to the defendant. The defendant argued that this

portion of the statute violated the second amendment right to bear arms in light of the United

States Supreme Court's decisions in District of Columbia v. Heller, 554 U.S. 570 (2008), and

McDonald v. City of Chicago, 561 U.S. 742 (2010), which recognized that the second

amendment of the United States Constitution protects the right of citizens to bear arms for self-

defense. The defendant's appeal also asked us to reexamine our supreme court's holding in

Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483 (1984), which held that a village

ordinance prohibiting the possession of handguns did not violate the Illinois Constitution.

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¶ 10 In a decision entered May 20, 2013, we affirmed the judgment of the circuit court that

entered a general guilty verdict with respect to all four charged AUUW counts. People v. Grant,

2013 IL App (1st) 100174-U. With respect to the defendant's argument that the AUUW statute

was unconstitutional as applied to him, we held that this challenge was not subject to our review

as the defendant had not raised the issue before the trial court. With respect to the defendant's

facial challenge to the statutory provision on carrying "uncased, loaded and immediately

accessible" firearms, we noted that a facial constitutional challenge must establish that no set of

circumstances exists under which the statute would be valid. We concluded that the defendant

had not met this standard, since the statutory provision at issue had only restricted the manner in

which firearms could be carried rather than prohibiting them altogether. Moreover, we noted

that our court had repeatedly held that the AUUW statute was constitutional. We also declined

to reexamine the Illinois Supreme Court's decision in Kalodimos, recognizing that we lacked the

authority to overrule decisions of our supreme court.

¶ 11 The defendant subsequently petitioned for rehearing. Pending that petition, the Illinois

Supreme Court issued its decision in People v. Aguilar, 2013 IL 112116. In Aguilar, the court

determined that section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute, in prohibiting possession of

an "uncased, loaded and immediately accessible" firearm outside the home, violated the second

amendment of the United States Constitution as construed by the United States Supreme Court's

decisions in Heller and McDonald. Our supreme court agreed with the reasoning of the Seventh

Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), in "concluding that the second

amendment protects the right to possess and use a firearm for self-defense outside the home."

Aguilar, 2013 IL 112116, ¶ 21. Since section 24-1.6(a)(1), (a)(3)(A) "categorically prohibit[ed]

the possession and use of an operable firearm for self-defense outside the home," our supreme

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court concluded that it "amount[ed] to a wholesale statutory ban on the exercise of a personal

right that is specifically named in and guaranteed by the United States Constitution, as construed

by the United States Supreme Court." Id. Thus, the Aguilar decision held that the section of the

AUUW statute underlying count I against the defendant was unconstitutional. However, the

supreme court emphasized that its holding was "specifically limited to the Class 4 form of

AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d)" but made no finding "with respect to

the constitutionality or unconstitutionality of any other section or subsection of the AUUW

statute." Id. ¶ 22 n.3.

¶ 12 On January 29, 2014, our supreme court issued a supervisory order vacating this court's

May 20, 2013 judgment on the defendant's appeal and instructing us to "reconsider the matter in

light of" Aguilar "to determine if another outcome is warranted." People v. Grant, No. 116216

(Jan. 29, 2014) (supervisory order). We subsequently permitted the parties to file supplemental

briefing.

¶ 13 In his supplemental brief, the defendant argues that the reasoning of Aguilar invalidates

all sections of the AUUW statute of which he was convicted, "as each is centered upon

possession of an uncased, loaded, and immediately accessible firearm while not on one's own

land, abode or fixed place of business." The defendant argues that "the essential reasoning of

Aguilar is that the Second Amendment right extends outside the home, and that reasoning thus

invalidates all the Class 4 charges in this case." Thus, although Aguilar explicitly reversed only

that portion of the AUUW statute underlying count I, the defendant contends that all of the

sections under which he was charged have been rendered unconstitutional.

¶ 14 The defendant further argues that, apart from count I's unconstitutionality under Aguilar,

there was insufficient evidence to convict him on the three remaining alleged violations of the

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AUUW statute. Specifically, the defendant argues the State did not present sufficient evidence

that he had not been issued a valid FOID card to support counts II and IV. Although conceding

he did not have a FOID card on his person when he was arrested, the defendant contends there

was no proof that he had not been issued a card as required to prove a violation of section 24-

1.6(a)(1),(a)(3)(C) or (a)(2),(a)(3)(C) of the AUUW statute. Moreover, the defendant argues that

his admission to not having a FOID card is insufficient to convict, relying on the principle that

there must be corroborating evidence independent of a defendant's confession to establish the

commission, or "corpus delicti," of the offense. Separately, the defendant argues there was

insufficient evidence that he carried a firearm on a "public street" as required under section 24-

1.6(a)(2) to support his conviction on count III.

¶ 15 Finally, apart from his second amendment and insufficient evidence arguments, the

defendant contends that the convictions under counts II and IV relating to the FOID card

requirement violate the "proportionate penalties" clause of the Illinois Constitution. Specifically,

he contends that, after the Aguilar holding, the elements comprising a violation of the AUUW

statute's FOID-related provisions are now identical to the elements of a violation of the Firearm

Owners Identification Card Act (FOID Card Act) (430 ILCS 65/2 (West 2012)). The defendant

claims that these crimes now consist of the same two elements, yet have different penalties, as

the AUUW conviction is a felony while a FOID Card Act violation is a misdemeanor. The

defendant thus argues that counts II and IV fail the "identical elements" test and violate the

Illinois Constitution.

¶ 16 In its supplemental brief, the State concedes that the Aguilar holding invalidates the

defendant's convictions under counts I and III, as both relied on the prohibition against carrying

"uncased, loaded, and immediately accessible" firearms in section 24-1.6(a)(3)(A) that was held

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unconstitutional. However, the State maintains that Aguilar does not affect the validity of the

portion of the AUUW statute prohibiting the carrying of a firearm without a valid FOID card,

section 24-1.6(a)(3)(C), which supports counts II and IV. The State also argues there was more

than sufficient evidence to establish that the defendant had not been issued a valid FOID card

and that he carried a firearm on a "public street" without such a card. With respect to the

"proportionate penalties" challenge, the State contends that we do not have jurisdiction to

consider this argument because it is outside the scope of the supreme court's supervisory order.

The State alternatively argues there is no proportionate penalties violation because a conviction

under the AUUW statute's FOID-related provisions requires proof of different elements than

those required by the FOID Card Act. Thus, the State contends that we should affirm the

defendant's convictions on both counts II and IV. The State urges that the defendant should be

sentenced with respect to count IV, arguing that it is the more serious of the two offenses.

¶ 17 ANALYSIS

¶ 18 We first note that we have jurisdiction pursuant to the supervisory order of our supreme

court issued on January 29, 2014, directing us to vacate our May 20, 2013 judgment on the

defendant's initial appeal and directing us "to reconsider the matter in light of" the Aguilar

decision "to determine if another outcome is warranted." People v. Grant, No. 116216 (Jan. 29,

2014) (supervisory order). We have now reconsidered the defendant's appeal in light of Aguilar

as well as the parties' supplemental briefing.

¶ 19 We hold, as conceded by the State, that the Aguilar decision applies to invalidate the

defendant's convictions under counts I and III for possessing a weapon that was "uncased, loaded

and immediately accessible" in violation of sections 24-1.6(a)(1), (a)(3)(A) and 24-1.6(a)(2),

(a)(3)(A) of the AUUW statute. In Aguilar, our supreme court reversed a conviction under

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section 24-1.6(a)(1), (a)(3)(A), the same provision underlying count I against the defendant in

this case. That provision made it a felony for an individual to possess an "uncased, loaded and

immediately accessible" firearm "except when on his or her land or in his or her abode or fixed

place of business." 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2008). The supreme court relied

upon the Seventh Circuit Court of Appeals' holding in Moore v. Madigan, 702 F.3d 933 (7th Cir.

2012), that this portion of the statute was "effectively 'a flat ban on carrying ready-to-use guns

outside the home' [citation] and that, as such it violates the second amendment right to keep and

bear arms." Aguilar, 2013 IL 112116, ¶ 19 (quoting Moore, 702 F.3d at 940). Our supreme

court adopted Moore's holding that "the [second] amendment confers a right to bear arms for

self-defense, which is as important outside the home as inside" and thus "Illinois' flat ban on

carrying ready-to-use guns outside the home, as embodied in the Class 4 form of section 24-

1.6(a)(1), (a)(3)(A), (d), is unconstitutional on its face." (Internal quotation marks omitted.)

Aguilar, 2013 IL 112116, ¶ 19. 1

¶ 20 Aguilar thus expressly invalidated the specific portion of the AUUW statute that is the

basis of count I against the defendant, section 24-1.6(a)(1), (a)(3)(A). We also hold, as

acknowledged by the State, that count III for violation of section 24-1.6(a)(2), (a)(3)(A) is

likewise invalidated by Aguilar. Count III, like count I, implicates the statutory language in

subsection (a)(3)(A) barring possession of an "uncased, loaded and immediately accessible"

1 Notably, our supreme court emphasized that "in concluding that the second amendment protects the right to possess and use a firearm for self-defense outside the home, we are in no way saying that such a right is unlimited or is not subject to meaningful regulation." Id. ¶ 21. Indeed, our supreme court noted the United States Supreme Court's statement in Heller that the recognition of a second amendment right to self-defense did not " 'cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places *** or laws imposing conditions and qualifications on the commercial sale of arms.' " Id. ¶ 26 (quoting Heller, 554 U.S. at 626-27).

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firearm. The only difference between count I and count III is that whereas the first count

concerns possession "on or about [one's] person or in any vehicle," the latter count applied to the

carrying of firearms "upon any public street, alley, or other public lands." Thus, the statutory

provision raised in count III, like the provision raised in count I, similarly amounts to a "flat ban

on carrying ready-to-use guns outside the home" and thus violates the second amendment.

(Internal quotation marks omitted.) Aguilar, 2013 IL 112116, ¶ 19. Under Aguilar, the AUUW

statutory provisions underlying both counts I and III amount to an unconstitutional ban on

firearms outside the home. Thus, we reverse the defendant's convictions on counts I and III.

¶ 21 We turn to the remaining two counts, II and IV, both of which concern the defendant's

alleged lack of a valid FOID card at the time of his arrest. Count II alleged that the defendant

violated section 24-1.6(a)(1), (a)(3)(C) of the AUUW statute, which makes it a crime for a

person to carry a firearm outside of one's own land, abode, or fixed place of business if "the

person possessing the firearm has not been issued a currently valid [FOID] card." Count IV

alleges that the defendant violated section 24-1.6(a)(2), (a)(3)(C) of the AUUW statute by

carrying or possessing a firearm "upon any public street, alley, or other public lands" without

having been issued a valid FOID card.

¶ 22 First, we address the defendant's contention that these FOID-related provisions were

invalidated by Aguilar. The defendant argues that "the reasoning of Aguilar should apply to

each of the [AUUW statute's] subsections at issue in this case," including the AUUW statute's

FOID provisions, as "the raison d'etre for each is to criminalize the possession of an uncased,

loaded, and immediately accessible firearm while not on one's own land, abode, or fixed place of

business, i.e. outside of the home." This contention is simply incorrect. Only counts I and III

involve the prohibition in section 24-1.6(a)(3)(A) on carrying an "uncased, loaded and

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immediately accessible" firearm that was found unconstitutional in Aguilar. Counts II and IV do

not rely whatsoever on this invalidated provision; rather, they concern section 24-1.6(a)(3)(C)'s

independent provisions regarding firearm possession by persons who have not been issued a

valid FOID card. Indeed, as recognized in the defendant's reply brief, this court has already held

that the FOID requirement in section 24-1.6(a)(3)(C) of the AUUW statute is severable from the

Aguilar holding. People v. Henderson, 2013 IL App (1st) 113294, ¶ 22 ("we find that the

invalidity of subsection (a)(3)(A) by Aguilar is not fatal to the balance of the statute, particularly

the FOID card requirement in subsection (a)(3)(C)"). In another post-Aguilar decision, this court

also held that subsection (a)(3)(C) does not violate the second amendment because the FOID

card requirement is a reasonable restriction on firearm possession. See People v. Taylor, 2013 IL

App (1st) 110166, ¶ 32 ("Because the restriction in section 24-1.6(a)(1), (a)(3)(C) is limited to

those lacking a FOID card and is not a flat ban, we decline to extend the holding of Aguilar to

this section of the AUUW statute."). Indeed, the FOID card requirement is consistent with

Aguilar's recognition that the second amendment right to possess firearms is still "subject to

meaningful regulation." Aguilar, 2013 IL 112116, ¶ 21. We concur with the reasoning of our

decisions in Henderson and Taylor and reject the defendant's contention that Aguilar invalidates

his conviction with respect to counts II and IV.

¶ 23 Alternatively, the defendant argues that there was insufficient evidence to support the

trial court's guilty findings with respect to counts II and IV. First, he contends that there was not

sufficient evidence establishing that he had not been issued a currently valid FOID card at the

time of his arrest. The defendant emphasizes our supreme court's holding that section 24-

1.6(a)(3)(C) of the AUUW statute does not require the physical carrying of a FOID card, but

only requires that a valid card has been "issued" to an individual possessing firearms. People v.

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Holmes, 241 Ill. 2d 509, 522 (2011) ("The language of the unlawful use of weapons statute only

contemplates that a FOID card has been issued to that individual. There is no requirement in the

unlawful use of weapons statute that an individual have his or her FOID card or other similar

permit in his or her possession."). The defendant acknowledges Officer Kasper's testimony that

the defendant admitted that he did not have a FOID card, but he asserts this is insufficient proof

that one had not been issued to him.

¶ 24 The applicable standard of review is well settled. "When considering a challenge to a

criminal conviction based on the sufficiency of the evidence, the relevant question on appeal is

whether, after reviewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt."

People v. Jackson, 2012 IL App (1st) 092833, ¶ 22 (citing People v. Hall, 194 Ill. 2d 305, 329-30

(2000)). The evidence "must be considered in the light most favorable to the prosecution,"

which means "the reviewing court must allow all reasonable inferences from the record in favor

of the prosecution." (Internal quotation marks omitted.) People v. Wheeler, 226 Ill. 2d 92, 116-

17 (2007). "Circumstantial evidence is sufficient to sustain a criminal conviction, provided that

such evidence satisfies proof beyond a reasonable doubt of the elements of the crime charged."

People v. Hall, 194 Ill. 2d 305, 330 (2000). A reviewing court "is not required to search out all

possible explanations consistent with innocence or be satisfied beyond a reasonable doubt as to

each link in the chain of circumstances. On the contrary, we must ask, after considering all of

the evidence in the light most favorable to the prosecution, whether the *** evidence [in the

record] could reasonably support a finding of guilt beyond a reasonable doubt." Wheeler, 226

Ill. 2d at 117-18.

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¶ 25 Here, the only evidence at trial referring to whether the defendant had a FOID card was

the following testimony of Officer Kasper on direct examination:

"Q. Officer, did you ask the defendant if he had a current

valid FOID card?

A. Yes.

Q. Did he state he had one?

A. He said he did not.

Q. Did he ever at any point in time present you with a

current valid firearms owner identification card?

A. No."

The defendant's attorney did not cross-examine Officer Kasper on this point.

¶ 26 The defendant acknowledges Officer Kasper's testimony but argues that "at most, this

testimony shows that the defendant did not have a FOID card on his person, not that one had not

been issued to him." (Emphases added.) We disagree with the defendant's narrow interpretation

of the trial testimony. The officer's question to the defendant was clearly not limited to inquiring

if the defendant literally had a FOID card on his person. Rather, the testimony was that Officer

Kasper asked the defendant "if he had a current valid FOID card," and the defendant responded

that "he did not." While the scope of this question would certainly include whether the defendant

was literally carrying a FOID card, the inquiry whether the defendant "had a valid FOID card"

can also be reasonably interpreted as asking whether the defendant owned or had been issued a

valid FOID card, regardless of whether or not he was carrying it on his person at the time.

Indeed, had the defendant in fact been issued a valid FOID card that was not on his person at that

moment, it would be reasonable to infer that he would have attempted to explain this rather than

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simply responding that "he did not" have a valid FOID card, as Officer Kasper testified. 2 It

defies common sense to accept the defendant's argument as it would suggest that he inexplicably

passed up an opportunity to explain that he did in fact have a valid FOID card. This explanation

made in response to Officer Kasper's question would have allowed him to extricate himself from

what was, clearly, serious trouble for him. Viewing the evidence in the light most favorable to

the prosecution, the trial court could reasonably interpret this testimony as evidence that the

defendant had not been issued and did not possess a valid FOID card either on his person or

anywhere else at the time of his arrest.

¶ 27 The defendant also argues that Officer Kasper's testimony is insufficient under the

principle that a defendant may not be convicted of a crime based solely on his confession. The

defendant argues that because the State failed to present evidence independent of his statements

to police, the State could not have proved the commission, or corpus delicti, of the offense, i.e.,

that the defendant had not been issued a valid FOID card at the time of his arrest.

¶ 28 Our supreme court has explained that "proof of an offense requires proof of two distinct

propositions or facts beyond a reasonable doubt: (1) that a crime occurred, i.e., the corpus delicti;

and (2) that the crime was committed by the person charged." People v. Sargent, 239 Ill. 2d 166,

183 (2010). "[P]roof of the corpus delicti may not rest exclusively on a defendant's extrajudicial

confession, admission, or other statement. [Citation.] Where a defendant's confession is part of

the proof of the corpus delicti, the prosecution must also adduce corroborating evidence

independent of the defendant's own statement." Id. Although there must be some evidence

2 Although the defendant testified that during the arrest he asked the police if he could "go in the house to get my ID," there was no clarification at trial as to what type of "ID" the defendant allegedly referred to. In any case, the trial court as finder of fact could certainly find that Officer Kasper's testimony that the defendant admitted to not having a valid FOID card was more credible than the defendant's interpretation.

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"independent of the confession, tending to show the crime did occur, that evidence need not, by

itself, prove the existence of the crime beyond a reasonable doubt." Id. Rather, "the

corroborating evidence may be considered together with the confession to determine whether the

crime *** ha[s] been proven beyond a reasonable doubt." Id.

¶ 29 Here, the defendant contends that "[the defendant's] statement to the police was the only

evidence relating to a FOID" card and thus "there is insufficient proof of corpus delicti" for

counts II and IV. We disagree and find that there was corroborating evidence apart from the

defendant's admission. We note that, independent of any statement by the defendant, Officer

Kasper testified that no FOID card was found on defendant's person and the defendant never

presented one, even when the officer inquired whether he possessed one. Indeed, at trial the

defendant did not dispute Officer Kasper's testimony that he never produced a valid FOID card,

and at no time during Officer Kasper's questioning of defendant, did he ever suggest that a FOID

card had in fact been issued to him. Nor did he request, as one would reasonably expect, an

opportunity to retrieve and produce the card, if he in fact had one somewhere other than on his

person.

¶ 30 The defendant's supplemental brief suggests that the State was required to introduce

affirmative evidence that no valid FOID card had been issued despite his admission and Officer

Kasper's unrebutted testimony that the defendant produced no card and none was found. The

law in Illinois does not require the State to prove a negative and we decline to do so in this case.

See Henderson, 2013 IL App (1st) 113294, ¶ 36 ("Because the trial court also found defendant

guilty *** under section 24-1.6(a)(2), (a)(3)(C) *** and defendant acknowledged that he did not

have a FOID card on his person at the time of the offense [citation], we remand the cause to the

trial court for imposition of sentence on that count."). Considering that we are obligated to

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review the evidence in the light most favorable to the prosecution, the undisputed testimony that

the defendant in this case failed to produce a FOID card was sufficient evidence corroborating

the defendant's explicit admission that he did not have a valid FOID card. Given this evidence, a

rational trier of fact could conclude beyond a reasonable doubt that the defendant had not been

issued and did not have a valid FOID card at the time of his arrest.

¶ 31 Moreover, although not necessary to affirm the conviction on counts II and IV, we agree

with the State that there was additional circumstantial evidence corroborating the defendant's

statement to police that he did not have a current valid FOID card. Specifically, the State cites

Officer Kasper's testimony that the defendant told him that he had purchased the handgun for

$75 from a "crack head" three months prior to the arrest, and that the defendant confirmed this in

his own courtroom testimony. The State also cites the arresting officers' testimony that the

defendant turned and ran from the police as circumstantial evidence of guilt.

¶ 32 Considering that all reasonable inferences in the record must be made in the prosecution's

favor, we agree with the State that the defendant's admission that he purchased the handgun from

a "crack head" rather than from a licensed firearms dealer could lead to a reasonable inference

that it was unlikely that the defendant had been issued a valid FOID card, as would be necessary

to complete a legitimate purchase. The illegal origin of the gun certainly could be regarded by

the trier of fact as evidence corroborating the defendant's statement that he did not possess a

valid FOID card when he was arrested after buying the gun from the "crack head."

¶ 33 Similarly, although the defendant disputed the police officers' recollection of events, it

can be inferred that the trial court credited the testimony of Officers Kasper and Mohammad that

the defendant fled when they approached. "A trier of fact may infer consciousness of guilt from

evidence of a defendant's flight [from] the police." People v. Williams, 266 Ill. App. 3d 752, 760

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(1994) (citing People v. Nightengale, 168 Ill. App. 3d 968, 972 (1988)); see also People v. Hart,

214 Ill. 2d 490, 519 (2005) ("[W]e believe defendant's flight and resistance upon apprehension

constitute circumstances from which the trier of fact could infer consciousness of guilt."). The

defendant's flight thus supported an inference that the defendant knew that he possessed the

handgun illegally. A finder of fact could likewise infer that someone with a valid FOID card

would not have reason to flee from police while carrying a handgun. Thus, we conclude there

was ample evidence corroborating the defendant's out-of-court statement and reject the

defendant's argument that the State could not establish the corpus delicti of the offense

underlying counts II and IV. We likewise find that the trial court, as a rational trier of fact, could

conclude beyond a reasonable doubt that the defendant had not been issued a FOID card and did

not have one at the time of his arrest.

¶ 34 We briefly address the defendant's independent argument that there was insufficient

evidence that he possessed the firearm on "a public street" as required to support his conviction

under count IV for violating section 24-1.6(a)(2), (a)(3)(C) of the AUUW statute. At trial, the

defendant testified that he was on the porch of his residence at all relevant times. However,

Officer Kasper and Officer Mohammad both testified that they had observed the defendant on

the sidewalk in front of the residence. The defendant emphasizes that count IV charged him with

possessing a firearm "upon a public street, to wit: South Wabash" without a valid FOID card.

The defendant thus contends that, even assuming the truth of the police officers' testimony, the

State proved only that the defendant stood on a sidewalk, not a street.

¶ 35 We find this argument meritless, as the relevant language in section 24-1.6(a)(2) of the

AUUW statute specifies that a violation occurs when one "[c]arries or possesses on or about his

or her person, upon any public street, alley, or other public lands within the corporate limits of a

17 1-10-0174

city, village or incorporated town *** any pistol, revolver, stun gun or taser or other firearm."

(Emphasis added.) 720 ILCS 5/24-1.6(a)(2) (West 2008). The plain language of the statute

encompasses not only possession upon a "street," but on any "other public lands within the

corporate limits" of a city. Officer Kasper testified he saw the defendant "standing on the public

sidewalk in front of 10920 South Wabash" immediately prior to the arrest, and Officer

Mohammad corroborated that testimony. As a public sidewalk certainly constitutes "public

land," there was sufficient evidence for the trial court to conclude that the defendant possessed

the firearm on "public lands" without a FOID card. Thus, we need not independently address

whether the defendant's presence on the sidewalk also falls within the statutory term "public

street." In any event, we agree with the State that it would be "absurd for the FOID requirement

to be applied when one possesses a firearm on a thoroughfare and in an alley but not the

sidewalks," and we will not presume the legislature intended such an illogical result.

¶ 36 We turn to the defendant's argument that a conviction under count II or IV for failure to

have a valid FOID card under section 24-1.6(a)(1), (a)(3)(C) or section 24-1.6(a)(2), (a)(3)(C) of

the AUUW statute would violate the proportionate penalties clause of the Illinois Constitution.

The defendant argues that in light of the Aguilar decision, the elements constituting violations of

these subsections are now identical to the elements of a violation of the FOID Card Act, which

prohibits a person from "acquir[ing] or possess[ing]" any firearm "without having in his or her

possession a Firearm Owner's Identification Card." 430 ILCS 65/2 (West 2012). The defendant

argues that the same two elements comprise a violation under either statute: "(1) possession of a

firearm, and (2) lack of a currently valid FOID card." As a violation of the AUUW statute is a

Class 4 felony and a violation of the FOID Card Act is a Class A misdemeanor, the defendant

contends that the statutes impermissibly impose different penalties for identical conduct.

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¶ 37 In response, the State first contends that we cannot consider the defendant's proportionate

penalties argument because it is outside the scope of our supreme court's mandate in its

supervisory order instructing us to reconsider the defendant's appeal in light of Aguilar. The

State further argues that, assuming we can review the question, the elements underlying the

AUUW violations under counts II and IV are distinguishable from those supporting a violation

of the FOID Card Act.

¶ 38 First, we address whether we can consider the defendant's proportionate penalties

argument, which the defendant admits he did not raise prior to the supreme court's supervisory

order. That order, after directing us to vacate our original judgment on the defendant's appeal,

states: "The appellate court is further directed to reconsider the matter in light of this Court's

decision in People v. Aguilar, 2013 IL 112116, to determine if another outcome is warranted."

People v. Grant, No. 116216 (Jan. 29, 2014) (supervisory order). The State argues that this order

limits our review to the second amendment issues addressed in Aguilar and precludes us from

considering a proportionate penalties argument. The defendant contends that this argument is

subject to our review because it arises from the Aguilar holding. Specifically, the defendant

contends that Aguilar effected a "substantive change" in the elements required to be proven

under the FOID-related subsections of the AUUW statute. The defendant's argument is that

possession of a firearm outside the home was prohibited by the AUUW statute until Aguilar, and

thus "[p]re-Aguilar violations of [subsections (a)(1), (a)(3)(C) and (a)(2), (a)(3)(C)] required, in

short, that a person possess a firearm: (1) while not in his abode; and (2) while not having been

issued a currently valid FOID card." The defendant argues that by establishing the right to

possess firearms outside the home, Aguilar effectively removed the "while not in his abode"

element of the relevant sections of the AUUW statute and thus "the effect of the Aguilar decision

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is to eliminate as irrelevant all but two elements of the offense of AUUW: (1) possession of a

firearm, and (2) lack of a currently valid FOID card." The defendant asserts that the FOID-

related provisions of the AUUW statute now have "the same elements as the FOID Card Act."

¶ 39 The State argues that we lack jurisdiction to consider the defendant's argument because

the supervisory order here was a "specific and unambiguous directive" to consider second

amendment issues raised by Aguilar, but "did not open the door for defendant to raise other

constitutional claims." Thus, the State avers that "[a] ruling on [the defendant's] proportionate

penalties claim would be outside the scope of [our] authority and void for lack of jurisdiction."

We acknowledge that our review of a case as a result of a supervisory order is limited by any

instructions issued by our supreme court pursuant to the order. However, we do not find the

supervisory order in this case to be as narrow as urged by the State. The order directs us to

reconsider our prior ruling "in light of" Aguilar and to "determine if another outcome is

warranted," but does not limit the scope of our review to second amendment issues raised in

Aguilar or otherwise limit the issues we may consider. Moreover, the defendant contends that

his proportionate penalties challenge under the Illinois Constitution arises from the Aguilar

decision. Thus, we conclude that we have jurisdiction to consider the defendant's proportionate

penalties challenge to his convictions under counts II and IV. Nevertheless, for the reasons set

forth below, we find that the defendant's argument lacks merit.

¶ 40 In assessing the merits of the defendant's challenge under the Illinois Constitution, we

recognize that "statutes carry a strong presumption of constitutionality. [Citation.] To overcome

this presumption, the party challenging the statute must clearly establish that it violates the

constitution." People v. Sharpe, 216 Ill. 2d 481, 487 (2005). "A reviewing court has 'a duty to

construe a statute in a manner that upholds its validity and constitutionality if it reasonably can

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be done.' " People v. Hawkins, 409 Ill. App. 3d 564, 567 (2011) (quoting People v. Graves, 207

Ill. 2d 478, 482 (2003)).

¶ 41 The proportionate penalties clause of the Illinois Constitution "requires the legislature to

set penalties 'according to the seriousness of the offense.' " Sharpe, 216 Ill. 2d at 522 (quoting

Ill. Const. 1970, art. I, § 11). This constitutional provision "mandates that penalties be

proportionate to the offenses committed." Hawkins, 409 Ill. App. 3d at 567. "[A] defendant may

raise two types of proportionate penalties challenges: (1) a penalty violates the proportionate

penalties clause if it is cruel, degrading, or so wholly disproportionate to the offense committed

as to shock the moral sense of the community; or (2) the proportionate penalties clause is

violated where offenses with identical elements are given different sentences." People v.

Lauderdale, 2012 IL App (1st) 100939, ¶ 39 (citing Sharpe, 216 Ill. 2d at 521). Our supreme

court has explained that applying different penalties for identical elements violates the

proportionate penalties clause because "[i]f the legislature determines that the exact same

elements merit two different penalties, then one of these penalties has not been set in accordance

with the seriousness of the offense." Sharpe, 216 Ill. 2d at 522.

¶ 42 The defendant asserts that the elements comprising violations of the AUUW statutory

provisions underlying counts II and IV are identical to those supporting a violation of the FOID

Card Act, which provides: "No person may acquire or possess any firearm, stun gun, or taser

within this State without having in his or her possession a Firearm Owner's Identification Card

previously issued in his or her name by the Department of State Police under the provision of

this Act." 430 ILCS 65/2(a)(1) (West 2012). The defendant contends that violation of either

statute requires proof of the same two elements: (1) possession of a firearm and (2) lack of a

currently valid FOID Card. The violations of the AUUW statute at issue are Class 4 felonies, yet

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a FOID Card Act violation is a Class A misdemeanor pursuant to section 65/14(b) of the statute.

The defendant thus claims the statutes impose different penalties for the same conduct.

¶ 43 The defendant's argument is invalid as it relies upon an overly simplistic view of the

elements of each offense. First, the defendant's assertion that the statutes contain an identical

"possession of a firearm" element is clearly erroneous upon examination of the statutory

language. The misdemeanor FOID Card Act offense is committed when a person "acquire[s] or

possess[es]" a firearm. 430 ILCS 65/2(a)(1) (West 2012). Notably, that subsection does not

elaborate on the manner of acquisition or possession that is required for an individual to be

subject to liability. For instance, the statute does not limit its application to those carrying a

firearm on the person as opposed to other possible forms of "possessing" a firearm. Indeed, the

disjunctive phrase "acquire or possess" indicates that the requirement to carry a FOID card

applies whenever one acquires a firearm, such as through purchase from a vendor, even if an

individual has not taken physical possession of the weapon.

¶ 44 In contrast, the relevant sections of the AUUW statute require more specific factual

findings regarding the manner in which an individual possesses a firearm. A violation of section

24-1.6(a)(1), (a)(3)(C), the basis for count II, occurs where one who has not been issued a valid

FOID card "carries" a firearm "on or about his or her person or in any vehicle or concealed on or

about his or her person." Thus, to prove a violation, the State must establish that the firearm was

carried or concealed on the person of the defendant or in a vehicle. In contrast, a misdemeanor

FOID Card Act violation does not require that a firearm was ever carried by the defendant or

placed in a specific location. Moreover, this section of the AUUW statute specifies that it does

not apply when an individual is "on his or her land and or in his or her abode or fixed place of

business." In contrast, there is no such limitation under the FOID Card Act.

22 1-10-0174

¶ 45 Similarly, a violation of section 24-1.6(a)(2), (a)(3)(C), the basis for count IV, requires

that one "[c]arries or possesses" a firearm "on or about his or her person, upon any public street,

alley, or other public lands within the corporate limits of a city, village or incorporated town,

except when an invitee thereon *** or except when on his or her own land or in his or her own

abode or fixed place of business." 720 ILCS 5/24-1.6(a)(2) (West 2008). Again, this section

differs from the FOID Card Act with respect to the manner of possession as it requires proof that

the defendant carried a firearm "on or about [one's] person." Id. No such limitation is contained

in the FOID Card Act. In addition, this section of the AUUW statute applies only where the

firearm was possessed "upon any public street, alley, or other public lands" within a city, village,

or incorporated town. Id. This provision of the AUUW statute also specifies that a violation

does not occur when an individual is on his or her own land, abode, or fixed place of business.

The FOID Card Act contains no such geographical restrictions.

¶ 46 The statutory subsections underlying counts II and IV thus require the State to prove

additional elements regarding both the manner as well as the location of firearm possession that

are simply not required to establish the misdemeanor FOID Card Act violation. 3 As the FOID-

related sections of the AUUW statute and the FOID Card Act do not require "identical elements"

to establish criminal liability, they do not violate the proportionate penalties clause of the Illinois

Constitution. The defendant's challenge to his convictions under counts II and IV thus fails.

3 Moreover, the statutes also differ with respect to whether the defendant must have physical possession of the FOID card. The FOID Card Act is violated whenever an individual possesses a firearm "without having [a FOID card] in his or her possession," (430 ILCS 65/2(a)(1) (West 2012)) whereas a violation of the relevant AUUW statutory provisions occurs when "the person possessing the firearm has not been issued a currently valid FOID card." 720 ILCS 5/24-1.6(a)(3)(C) (West 2008). This distinction further distinguishes the elements of the offenses.

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¶ 47 Having concluded that the convictions under counts II and IV were constitutionally valid

and supported by sufficient evidence, we now turn to sentencing. The trial court sentenced the

defendant upon a general guilty verdict regarding all four counts, but only the convictions on

counts II and IV survive in light of Aguilar. As the two remaining convictions were based on the

same conduct, the defendant should be sentenced on the more serious of the two offenses. See In

re Angel P., 2014 IL App (1st) 121749, ¶ 84 ("Under the one-act, one-count doctrine, the

[defendant] should be sentenced on the most serious offense and the less serious offenses

vacated."). The violations of the AUUW statute underlying counts II and IV are both Class 4

felonies and thus implicate the same sentencing range. However, the State urges that the count

IV conviction for carrying a firearm on a public street without a FOID card in violation of

section 24-1.6(a)(2), (a)(3)(C) is the more serious offense because "society has a significant

interest in protecting the general public from individuals who unlawfully carry firearms in public

places." Moreover, the defendant has stated his agreement with the State's reasoning that count

IV is the more serious count.

¶ 48 Although we would otherwise remand for resentencing, this is a rare case where the State

and the defendant have not only agreed as to which count is the "most serious," both have also

requested that we enter judgment on that count instead of remanding to the trial court. The

parties have indicated to this court their agreement that remanding for resentencing could not

have any practical effect in this case and thus would not be an effective use of judicial resources.

Resentencing at this point would not actually benefit the defendant, as he has already completed

the term of probation originally imposed by the trial court after its general guilty verdict on all

four counts. That is, even if we were to remand for resentencing in light of our order vacating

the convictions on counts I and III, any new, lesser sentence imposed by the trial court would be

24 1-10-0174

moot in light of the probation already served. In this situation, we agree with the State and the

defendant that remanding for resentencing is unnecessary and would not be an effective use of

the time and resources of the parties or the court. Accordingly, for the reasons discussed we

enter judgment and sentence on the count IV conviction only. The sentence imposed by the trial

court shall stand.

¶ 49 For the foregoing reasons, we reverse the convictions on counts I and III but affirm the

convictions on counts II and IV and enter judgment and sentence on count IV.

¶ 50 Affirmed in part and reversed in part.