NOTICE 2023 IL App (4th) 220878-U This Order was filed under FILED Supreme Court Rule 23 and is June 28, 2023 NO. 4-22-0878 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County RAVANNAH L. GRIFFIS, ) No. 21CF296 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Cavanagh and Lannerd concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not abuse its discretion in allowing Facebook messages into evidence, as the State presented sufficient authenticating evidence the messages were a conversation between defendant and another person. (2) The appellate court modified the sentencing order to allow an individual with a valid firearm owner’s identification (FOID) card to retrieve one of two confiscated guns when trial counsel rendered ineffective assistance in conceding forfeiture of the second gun, which was not contraband.
¶2 In June 2021, the State charged defendant, Ravannah L. Griffis, with criminal
trespass to residence (720 ILCS 5/19-4(a)(2) (West 2020)), criminal damage to property (720
ILCS 5/21-1(a)(1) (West 2020)), and aggravated battery (720 ILCS 5/12-3.05 (West 2020)). The
charges alleged defendant entered the residence of Tishana Currie without authority, hit Currie
with a gun, and damaged a doorway and car window. During defendant’s arrest, police seized
two guns. ¶3 During the August 16, 2022, bench trial, the trial court allowed an exhibit
consisting of a photo of Facebook messages over defendant’s objection. The court found
defendant guilty. As part of its sentencing order, and with the State’s agreement, the court
allowed the seized guns to be released to an individual with a valid firearm owner’s
identification (FOID) card. The State filed a motion to reconsider the order allowing release of
the guns. Defendant’s counsel conceded the issue, and the court granted the motion.
¶4 On appeal, defendant contends the State failed to properly authenticate the
Facebook messages and trial counsel was ineffective for conceding forfeiture of the second gun
seized by police. We affirm but modify the sentencing order to allow an individual with a valid
FOID card to retrieve the second gun.
¶5 I. BACKGROUND
¶6 The State charged defendant in connection with a May 27, 2021, incident,
alleging defendant forced her way into Currie’s residence, causing damage to a door, struck
Currie with a teal-colored gun, and shattered the windshield of Currie’s car with a potted plant.
¶7 At trial, Currie testified her brother was the father of one of defendant’s children.
On May 27, 2021, she had given her brother a ride earlier in the day. Currie stated defendant and
her brother were “having problems” and indicated Currie’s sister also had a disagreement with
defendant.
¶8 At about 11:30 p.m., Currie heard banging on her front door, and someone rang
the doorbell. Currie could also hear defendant yelling but could not understand what she said.
When Currie opened the door, defendant tried to force her way in, causing damage to the door.
Currie tried to shut the door, but defendant grabbed her and tried to fight with her. Currie said
she tried not to hit defendant because defendant was pregnant. Something hit Currie on the head,
-2- and she saw a teal gun drop to the floor. Currie identified the State’s exhibit No. 10 as a photo of
the teal gun defendant dropped.
¶9 Curried yelled at defendant to “get out.” Defendant’s sister and brother arrived,
and defendant left the house. Currie went outside and saw the windshield of her car was broken
and a plant “was all over the *** porch and stuff.” After defendant left, Currie called the police.
Currie found a phone in the location where defendant tried to fight with her, and she gave it to
the police.
¶ 10 Currie testified, after the incident, she engaged in a text message conversation
with defendant, who wanted Currie to drop the charges in exchange for repairing Currie’s
windshield. Currie agreed because she needed her car for work and could not drive it with the
windshield broken. However, defendant never paid for the window.
¶ 11 Currie identified the State’s exhibit No. 11 as an image of an undated text
message exchange between herself and defendant. In it, an individual Currie identified as
defendant stated she needed her phone and inquired about the amount to fix the windshield.
Currie replied the police had the phone and indicated her agreement to not press charges if
defendant gave her money for the windshield. Currie also told defendant in the message she did
not hit defendant because defendant was pregnant.
¶ 12 Currie also identified the State’s exhibit No. 12 as screenshots of a message from
a Facebook profile page, from “Vanna N Travon.” Currie identified the Facebook profile as
belonging to defendant and defendant’s son. In the message, defendant apologized for saying
hateful and hurtful things about Currie and for “coming to your house fighting you.” Currie
stated defendant sent her a message on Facebook with the apology.
-3- ¶ 13 Megan Rosenak, a Peoria police officer, responded to the call on May 27, 2021,
about the disturbance at Currie’s home. Currie told Rosenak defendant had dropped a phone.
Rosenak took the phone and saw “there was messaging popping up,” which she could read on
the screen. Rosenak said she knew the messages were in reference to the fight that had occurred
at Currie’s home because she had just talked to Currie and there seemed to be some similarities.
Rosenak could not open the phone to read the messages because the phone was locked, but she
could see the messages on the locked screen. She took a photo of the screen, which was
introduced as the State’s exhibit No. 7.
¶ 14 The photo showed a Facebook message sent 22 minutes prior from “MaRiah
Mason” stating, “It’s not coo to fight sumbody pregnant Fareal no cool points y’all cAn argue all
day.” A message 20 minutes prior stated, “MaRiah Mason reacted [shocked emoji] to your
message: Girl she just blew me I just went to her door and hit her ass.” A notification 19
minutes prior from MaRiah Mason stated, “Vanna [laughing emoji] u kills I just don’t want
nobody putting they hands on u pregnant fareal that blows me.”
¶ 15 Defense counsel objected, arguing, in part, it was not shown the phone belonged
to defendant and it was unknown who was sending the messages or when they were sent. The
State offered to provide additional foundation, and Rosenak testified again that her attention was
drawn to the messages because of similarities between them and what Currie told her. She stated
her familiarity with Facebook Messenger and emojis. Rosenak noted the reaction to a message
sent 20 minutes prior, which stated, “Girl she just blew me I just went to her door and hit her
ass,” and explained that quote was the message to which the other person responded.
¶ 16 Defense counsel again objected and argued the messages were not from defendant
and it was unknown who was sending them. The State responded there was sufficient evidence
-4- the phone belonged to defendant and included a message sent from defendant that someone
reacted to. The State argued defendant’s concerns went to the weight of the evidence. The trial
court admitted the exhibit.
¶ 17 After the trial court admitted the exhibit, Rosenak testified defendant’s sister later
called and asked to retrieve defendant’s phone. Defendant’s mother also returned to the scene
and asked for the phone. Rosenak did not release the phone to them.
¶ 18 Nehemiah Doyle, another Peoria police officer, went to defendant’s home on May
31, 2021, as part of the investigation of the incident. Doyle recovered a bag with two guns in it,
one of which was the teal-colored gun identified in the State’s exhibit No. 10. The gun had no
blood or hair on it, and no testing was performed on it. Neither gun was admitted into evidence,
and the State never alleged the second gun was involved in the incident.
¶ 19 During initial closing arguments, neither party addressed the messages in exhibit
No. 7. However, the State briefly mentioned the messages in rebuttal to address a defense
argument about how the phone ended up on the floor of Currie’s home. The trial court found
defendant guilty on all charges. The court did not specifically reference exhibit No. 7, but the
court did tell defendant she made a poor decision and told defendant, “[y]ou don’t have to
respond or react to every syllable that is put on Facebook and social media.”
¶ 20 Defendant filed a motion for a judgment of acquittal notwithstanding the trial
court’s findings or a motion for a new trial, alleging in part the court erred in denying objections
made during trial. The court denied the motion.
¶ 21 On September 29, 2022, the trial court sentenced defendant to 24 months’
probation. Defense counsel asked the court to release the seized guns to the father of defendant’s
child, who had a valid FOID card. Counsel noted defendant had a valid FOID card at the time of
-5- the seizure and stated money from the sale of the guns could be helpful to defendant. The court
noted the firearms were not physically put into evidence and the State replied, “I honestly don’t
know how that works. I suppose we don’t need to hold onto them, they could be released but
they can’t be released to [defendant]. They should be released to somebody *** with a valid
FOID [card].” Defense counsel further noted there were two guns, the teal gun involved in the
incident and “another one [defendant] just handed over to them that they took that had nothing to
do with this.” The State responded, “Yeah, that’s fine,” and defense counsel asked that the
matter be included in the order. In the sentencing order, the court wrote, “the guns may be
released to an individual with a valid FOID card.”
¶ 22 On October 3, 2022, defendant filed a notice of appeal. Also on October 3, 2022,
the State filed a motion to reconsider the release of the guns. The State noted defendant
previously requested the firearms be released to a friend with a valid FOID card. The State then
wrote, “720 ILCS 5/24-6(a), however, requires that ‘[u]pon conviction of an offense in which a
weapon was used or possessed by the offender, any weapon seized shall be confiscated by the
trial court.’ ” On October 6, 2022, the trial court held a hearing, and defense counsel conceded
the issues, stating:
“I have actually reviewed the motion. I looked up and reviewed the statute.
Initially I was going to stand on the argument that the other weapon seized wasn’t
part of this so it shouldn’t be confiscated and destroyed, but after looking at the
statute I believe it states any weapons seized, not just ones that were party to this
incident. So, I will have to concede. I don’t have any lawful argument.”
The court granted the motion and edited the original sentencing order by crossing out the
language allowing the guns to be released and writing “revoked per order on 10/6/22.” The court
-6- added a file stamp of October 6, 2022, to the bottom of the order. This court allowed
defendant’s motion to file a late notice of appeal from the October 6, 2022, order.
¶ 23 II. ANALYSIS
¶ 24 A. Authentication of Facebook Messages
¶ 25 On appeal, defendant first contends the trial court abused its discretion in
allowing exhibit No. 7 into evidence. Defendant argues the State failed to provide a sufficient
foundation to properly authenticate the Facebook messages shown in the photo of the phone
recovered from Currie’s home. The State argues defendant’s concerns about the messages went
to the weight of the evidence instead of the admissibility of the exhibit.
¶ 26 We treat electronic messages obtained from a phone like any other form of
documentary evidence. See People v. Watts, 2022 IL App (4th) 210590, ¶ 74 (citing People v.
Price, 2021 IL App (4th) 190043, ¶ 115, 193 N.E.3d 320; People v. Ziemba, 2018 IL App (2d)
170048, ¶ 51, 100 N.E.3d 635). A proper foundation is laid for the admission of such evidence
when the document has been identified and authenticated. Watts, 2022 IL App (4th) 210590,
¶ 75. “Authentication of documentary evidence requires the proponent to present evidence the
document is what the proponent claims it to be.” Watts, 2022 IL App (4th) 210590, ¶ 75. “To
do so, ‘[t]he proponent need prove only a rational basis upon which the fact finder can conclude
that the document did in fact belong to or was authored by the party alleged.’ ” Watts, 2022 IL
App (4th) 210590, ¶ 75 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 51). “The trial court’s
finding of authentication is merely a finding there is sufficient evidence to justify presentation of
the offered evidence to the trier of fact and does not preclude the opponent from contesting the
genuineness of the writing after the authentication requirements are satisfied.” Watts, 2022 IL
App (4th) 210590, ¶ 75. “ ‘If the court, after serving its screening function, allows the evidence
-7- to be admitted, the issue of the document’s authorship is ultimately for the jury to determine.’ ”
Watts, 2022 IL App (4th) 210590, ¶ 75 (quoting Ziemba, 2018 IL App (2d) 170048, ¶ 51).
¶ 27 “Documentary evidence may be authenticated by either direct or circumstantial
evidence.” Watts, 2022 IL App (4th) 210590, ¶ 76. Circumstantial evidence of authenticity
includes factors such as appearance, contents, substance, and distinctive characteristics, which
are to be considered with the surrounding circumstances. Watts, 2022 IL App (4th) 210590,
¶ 76. Thus, documentary evidence may be authenticated by its contents if it is shown to contain
information that would be known only by the alleged author of the document or, at the very least,
by a small group of people including the alleged author. Watts, 2022 IL App (4th) 210590, ¶ 76.
We review a trial court’s decision to admit documentary evidence for an abuse of discretion.
Watts, 2022 IL App (4th) 210590, ¶ 76
¶ 28 When determining if a party has made a prima facie showing of authentication of
documentary evidence, the following nonexhaustive list of factors are appropriate for a trial court
to consider:
“ ‘(1) the purported sender admits authorship, (2) the purported sender is seen
composing the communication, (3) business records of an Internet service
provider or cell phone company show that the communication originated from the
purported sender’s personal computer or cell phone under circumstances in which
it is reasonable to believe that only the purported sender would have had access to
the computer or cell phone, (4) the communication contains information that only
the purported sender could be expected to know, (5) the purported sender
responds to an exchange in such a way as to indicate circumstantially that he was
in fact the author of the communication, or (6) other circumstances peculiar to the
-8- particular case may suffice to establish a prima facie showing of authenticity.’ ”
Price, 2021 IL App (4th) 190043, ¶ 118 (quoting People v. Kent, 2017 IL App
(2d) 140917, ¶ 118, 81 N.E.3d 578).
See People v. Brand, 2021 IL 125945, ¶ 44, 190 N.E.3d 149.
¶ 29 “[T]he bar for authentication of evidence is not particularly high.” (Internal
quotation marks omitted.) Watts, 2022 IL App (4th) 210590, ¶ 82 (quoting United States v.
Vayner, 769 F.3d 125, 130 (2d Cir. 2014)). The proponent need not rule out all possibilities
inconsistent with authenticity and needs only to adduce sufficient proof so a reasonable juror
could find in favor of authenticity. Watts, 2022 IL App (4th) 210590, ¶ 82. Once an item of
evidence is “authenticated” this merely renders the evidence admissible, leaving the issue of its
ultimate reliability to the jury. Watts, 2022 IL App (4th) 210590, ¶ 82. The opposing party then
remains free to challenge the reliability of the evidence, minimize its importance, or argue
alternative interpretations of its meaning. Watts, 2022 IL App (4th) 210590, ¶ 82. Those
challenges go to the weight of the evidence rather than its initial admissibility. Watts, 2022 IL
App (4th) 210590, ¶ 82.
¶ 30 This court recently addressed the authentication of electronic materials issue in
Watts. There, incriminating memes were found on the defendant’s phone after his arrest. While
the source of the memes was unknown, this court found the material was sufficiently
authenticated when the State was able to establish the phone belonged to the defendant. Watts,
2022 IL App (4th) 210590, ¶ 78. An officer provided evidence the memes were created and
modified on the defendant’s phone in close proximity to a text exchange between the defendant
and his girlfriend, thus providing circumstantial evidence the memes belonged to the defendant.
Watts, 2022 IL App (4th) 210590, ¶ 78. Therefore, the trial court did not abuse its discretion in
-9- allowing evidence of the memes, as there was direct and circumstantial evidence the memes
were what the State claimed them to be—memes from the defendant’s phone. Watts, 2022 IL
App (4th) 210590, ¶ 78.
¶ 31 Here, the content of the Facebook messages in exhibit No. 7 were properly
authenticated by circumstantial evidence showing defendant was engaged in a conversation
about the incident at Currie’s home and was the author of an admission to another person,
stating, “[g]irl she just blew me I just went to her door and hit her ass.” There was no
meaningful dispute the phone belonged to defendant. The phone was found immediately after
the incident at Currie’s home in the location of the incident. Defendant also later sought to
retrieve her missing phone. The messages appeared on defendant’s phone in close temporal
proximity to the events at issue, and Rosenak testified they contained information similar to facts
Currie told her about the incident. The messages from MaRiah Mason were in response to
“Vanna,” a logical nickname for defendant, whose first name was Ravannah and who had a
Facebook profile with the name “Vanna N Tavon.” Further, the messages contained information
specific to defendant, such as her pregnancy. Rosenak explained how a Facebook reaction
functioned to show that defendant sent the message with the admission. Thus, the State
presented evidence providing a rational basis upon which the trial court could conclude the
evidence was what the proponent claimed it to be—Facebook messages between defendant and
another person about the incident at Currie’s home. At that point, the court did not abuse its
discretion in allowing the evidence, and issues concerning the reliability of the messages went to
the weight of the evidence instead of its admissibility.
- 10 - ¶ 32 Defendant relies substantially on two cases to argue otherwise, Kent, 2017 IL App
(2d) 140917, and People v. Watkins, 2015 IL App (3d) 120882, 25 N.E.3d 1189. However, those
cases are distinguishable.
¶ 33 In Kent, the defendant was convicted of the first degree murder of a victim who
had been shot in his own driveway. Kent, 2017 IL App (2d) 140917, ¶¶ 3-4. On appeal, the
defendant argued the trial court abused its discretion in admitting into evidence a Facebook
profile under a nickname associated with the defendant entitled “Lorenzo Luckii Santos” that
contained a photograph of a person resembling him. Kent, 2017 IL App (2d) 140917, ¶ 57. The
profile contained a post reading “ ‘its my way or the highway…..leave em dead n his
driveway.’ ” Kent, 2017 IL App (2d) 140917, ¶ 57. The State introduced no direct or
circumstantial proof of authentication, defendant did not admit creating the Facebook profile or
authoring the post, and there was no testimony suggesting defendant was affiliated with the
creation of either. Kent, 2017 IL App (2d) 140917, ¶ 119. Considering the ease of fabricating a
social media account, the Kent court found the Facebook post was improperly admitted, because
the only evidence of authentication was the defendant’s nickname and a photograph allegedly
resembling the defendant. Kent, 2017 IL App (2d) 140917, ¶ 119. In contrast, here, the State did
present circumstantial evidence of authentication, and the evidence strongly suggested defendant
was affiliated with the messages on her phone. Thus, we distinguish Kent on that basis. See
People v. Curry, 2020 IL App (2d) 180148, ¶¶ 54-55, 179 N.E.3d 824 (distinguishing Kent).
¶ 34 In Watkins, the appellate court determined the State failed to lay a proper
foundation for the admission of photographs depicting text messages in a case where the
defendant was charged with unlawful possession of a controlled substance with intent to deliver.
After executing a search warrant inside of a home were the defendant and five other people were
- 11 - present, the officers found drugs and multiple cellular phones in an open kitchen drawer.
Watkins, 2015 IL App (3d) 120882, ¶¶ 11-12. One of those phones contained drug-related text
messages that were directed to someone named “Charles,” which happened to be the defendant’s
first name. Watkins, 2015 IL App (3d) 120882, ¶¶ 16-17. Notably, however, there was no
evidence of the phone number associated with the phone, and there was no indication from the
phone itself that the defendant was the owner. Watkins, 2015 IL App (3d) 120882, ¶ 24. Under
those circumstances, the appellate court determined the evidence was insufficient to authenticate
the text messages as having been sent to the defendant. Watkins, 2015 IL App (3d) 120882, ¶ 38.
In so holding, the court emphasized the police officer who identified the photographs of the text
messages at trial “had no personal knowledge of the text messages and had no idea who was the
owner or user of the cell phone.” Watkins, 2015 IL App (3d) 120882, ¶ 38.
¶ 35 Here, unlike Watkins, and as previously discussed, there is no meaningful dispute
the phone belonged to defendant. Further, Rosenak personally witnessed the message
notifications on the phone in close temporal proximity to the incident and recognized similarities
between the messages and information provided by Currie. Thus, Watkins is distinguishable.
See People v. Harper, 2017 IL App (4th) 150045, ¶ 61, 80 N.E.3d 856 (“The present case is
distinguishable from Watkins because the State here had evidence the cell phone in question
belonged to defendant.”). Accordingly, we determine the trial court did not abuse its discretion
in allowing exhibit No. 7 into evidence.
¶ 36 B. Forfeiture of the Guns
¶ 37 Defendant next contends the trial court erred in granting the State’s motion to
reconsider the release of one of the guns. We note the State initially forfeited the issue of the
release of the guns when it agreed at sentencing to the return of them to a qualified individual.
- 12 - The State then raised a legal issue concerning confiscation of the guns for the first time in its
motion to reconsider. Normally, an argument raised for the first time in a motion to reconsider
in the trial court is forfeited on appeal. Evanston Insurance Co. v. Riseborough, 2014 IL
114271, ¶ 36, 5 N.E. 3d 158. However, forfeiture can be forfeited. See People v. De La Paz,
204 Ill. 2d 426, 433, 791 N.E.2d 489, 493 (2003). Here, defendant conceded the issue at the
hearing on the motion to reconsider. Defendant recognizes her trial counsel forfeited the issue
by conceding the issue at the hearing on the State’s motion to reconsider, but she argues counsel
was ineffective for doing so.
¶ 38 A defendant’s claim of ineffective assistance of counsel is analyzed under the
two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v.
Henderson, 2013 IL 114040, ¶ 11, 989 N.E.2d 192. To prevail on such a claim, “a defendant
must show both that counsel’s performance was deficient and that the deficient performance
prejudiced the defendant.” People v. Petrenko, 237 Ill. 2d 490, 496, 931 N.E.2d 1198, 1203
(2010). To establish deficient performance, the defendant must show his attorney’s performance
fell below an objective standard of reasonableness. People v. Evans, 209 Ill. 2d 194, 219, 808
N.E.2d 939, 953 (2004) (citing Strickland, 466 U.S. at 687). To satisfy the second prong of
Strickland, “[a] defendant establishes prejudice by showing that, but for counsel’s unprofessional
errors, there is a reasonable probability that the result of the proceeding would have been
different.” People v. Houston, 229 Ill. 2d 1, 4, 890 N.E.2d 424, 426 (2008). “A defendant must
satisfy both prongs of the Strickland test and a failure to satisfy any one of the prongs precludes a
finding of ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
- 13 - ¶ 39 Under section 24-6 of the Illinois Criminal Code of 2012 (720 ILCS 5/24-6 (West
2020)), the State is given the authority to confiscate and dispose of weapons. Section 24-6
provides, in part:
“(a) Upon conviction of an offense in which a weapon was used or
possessed by the offender, any weapon seized shall be confiscated by the trial
court.
(b) Any stolen weapon so confiscated, when no longer needed for
evidentiary purposes, shall be returned to the person entitled to possession, if
known. After the disposition of a criminal case or in any criminal case where a
final judgment in the case was not entered due to the death of the defendant, and
when a confiscated weapon is no longer needed for evidentiary purposes, and
when in due course no legitimate claim has been made for the weapon, the court
may transfer the weapon to the sheriff of the county who may proceed to destroy
it, or may in its discretion order the weapon preserved as property of the
governmental body whose police agency seized the weapon, or may in its
discretion order the weapon to be transferred to the Illinois State Police for use by
the crime laboratory system, for training purposes, or for any other application as
deemed appropriate by the Department. If, after the disposition of a criminal
case, a need still exists for the use of the confiscated weapon for evidentiary
purposes, the court may transfer the weapon to the custody of the State
Department of Corrections for preservation.” 720 ILCS 5/24-6 (West 2020).
¶ 40 Although partly civil, a forfeiture action is considered quasi-criminal because the
“only objective is to penalize unlawful activity.” People v. Earl, 121 Ill. App. 3d 254, 257, 459
- 14 - N.E.2d 342, 345 (1984). As a forfeiture proceeding is quasi-criminal, the burden of proof is on
the State. People v. Braden, 243 Ill. App. 3d 671, 676, 611 N.E.2d 575, 579 (1993) (citing
People v. LeShoure, 143 Ill. App. 3d 839, 844, 493 N.E.2d 687, 690 (1986)). The State is
required to prove its right to seized contraband by a preponderance of the evidence. Braden, 243
Ill. App. 3d at 676, 611 N.E.2d at 579. On appeal of a contraband-forfeiture case, we review
whether the trial court’s order is contrary to the manifest weight of the evidence. Braden, 243
Ill. App. 3d at 676, 611 N.E.2d at 579.
¶ 41 Initially, defendant contends the parties and the trial court misinterpreted the term
“any” in section 24-6 to apply to both guns. Defendant argues under Earl, the term applies only
to contraband, and the second gun found in the bag with the teal gun could not be subject to
forfeiture because it was not per se or derivative contraband.
¶ 42 Our supreme court has identified two categories of contraband. People v. Steskal,
55 Ill. 2d 157, 159, 302 N.E.2d 321, 323 (1973). “Contraband per se is material the mere
possession of which constitutes a crime.” People v. DeLuca, 302 Ill. App. 3d 454, 459, 706
N.E.2d 927, 930 (1998) (citing Steskal, 55 Ill. 2d at 159, 302 N.E.2d at 323). “Derivative
contraband is material that is not inherently illegal, but is used in an illegal manner.” DeLuca,
302 Ill. App. 3d at 459, 706 N.E.2d at 930 (citing Steskal, 55 Ill. 2d at 159, 302 N.E.2d at 323).
“Certain weapons such as sawed[-]off shotguns and switchblades, are contraband per se because
they cannot be legally possessed.” DeLuca, 302 Ill. App. 3d at 459, 706 N.E.2d at 930. “A gun
that may be legally possessed, however, is derivative contraband if it is closely connected to
illegal activity.” DeLuca, 302 Ill. App. 3d at 459, 706 N.E.2d at 930.
¶ 43 This distinction was illustrated in Earl, which also held only per se or derivative
contraband could be forfeited under section 24-6. Earl, 121 Ill. App. 3d at 258, 459 N.E.2d at
- 15 - 345. There, the defendant was charged with illegal use of a weapon after being arrested while
carrying a loaded handgun on the floor of the passenger compartment of his car. Earl, 121 Ill.
App. 3d at 255, 459 N.E.2d at 343. The police also seized additional weapons from the trunk of
the defendant’s car. Earl, 121 Ill. App. 3d at 255, 459 N.E.2d at 343. The appellate court held
the handgun in the passenger compartment was derivative contraband because, while it was not
unlawful to possess such a weapon in Illinois, the State established the weapon was used or
possessed in connection with illegal activity when it was transported in an illegal manner. Earl,
121 Ill. App. 3d at 255, 459 N.E.2d at 345. However, the weapons confiscated from the trunk of
his vehicle were neither contraband per se nor derivative contraband. Earl, 121 Ill. App. 3d at
255, 459 N.E.2d at 345. The weapons in the trunk were not linked to the illegal activity, as the
charge was not connected to the trunk of the vehicle. Earl, 121 Ill. App. 3d at 255, 459 N.E.2d
at 345.
¶ 44 The Earl court rejected an argument by the State that “any weapon seized” in
section 24-6 allowed forfeiture of “every weapon seized, regardless of whether the weapons were
in any respect related to the commission of an offense.” Earl, 121 Ill. App. 3d at 256, 459
N.E.2d at 344. The court noted forfeitures of property are not favored in the law, and statutes
authorizing forfeitures must be strictly construed. Earl, 121 Ill. App. 3d at 257, 459 N.E.2d at
345. Finding the trial court could confiscate a weapon under section 24-6(b) only when “no
legitimate claim” had been made, the court held the legislature intended to approve confiscation
of contraband per se, or derivative contraband, as no legitimate claim could be made for such
weapons. See Earl, 121 Ill. App. 3d at 258, 459 N.E.2d at 345. In contrast, the court held
“weapons which are neither contraband per se nor derivative contraband are returnable to
persons establishing their possessory rights to them.” Earl, 121 Ill. App. 3d at 258, 459 N.E.2d
- 16 - at 345. Thus, the Earl court ordered the weapons found in the trunk returned to the defendant.
Earl, 121 Ill. App. 3d. at 259, 459 N.E.2d 346.
¶ 45 Here, the teal gun was derivative contraband because, while it was not illegal for
defendant to have it, it was used in the aggravated battery offense. However, the State never
established the other gun found in the bag with the teal gun was either per se or derivative
contraband. Nothing in the record suggests defendant illegally possessed the other gun or that it
was used in the commission of the crimes she was convicted of. Thus, the State never met its
burden of showing its authority to forfeit the second gun. Because the State never met its
burden, and the parties appeared to be acting solely under a misapprehension of the meaning of
section 24-6, defense counsel unreasonably conceded the issue. In doing so, counsel rendered
ineffective assistance, and the law would have required the result of the proceeding to be
different had the trial court been presented with the correct law.
¶ 46 Notably, the State does not take issue with the holding of Earl or disagree the
second gun is not subject to forfeiture if it is not per se or derivative contraband. Instead, the
State suggests the factual issue of whether the second gun was contraband is best left to a
postconviction collateral attack. We disagree.
¶ 47 “[I]neffective assistance of counsel claims may sometimes be better suited to
collateral proceedings but only when the record is incomplete or inadequate for resolving the
claim.” People v. Veach, 2017 IL 120649, ¶ 46, 89 N.E.3d 366. Here, the record is sufficient to
determine defendant’s claim. The State speculates for the first time on appeal the second gun
could have been in defendant’s possession at the time of the offenses. However, the State had
the initial burden of proof. In that respect, the State never suggested the second gun was illegally
possessed or involved in the crimes. The forfeiture proceeding was a continuation of the
- 17 - prosecution, and the evidence before the court at trial was also before the court in the forfeiture
proceedings. See LeShoure, 143 Ill. App. 3d at 841, 493 N.E.2d at 688. As previously
discussed, nothing suggests the second gun was either per se or derivative contraband. There is
no evidence or logical inference from the record that another gun aside from the teal gun was
used by defendant in committing the offenses.
¶ 48 Instead, at sentencing, when defense counsel noted there were two guns, the teal
gun involved in the incident and “another one [defendant] just handed over to them that they
took that had nothing to do with this,” the State responded, “Yeah, that’s fine.” In its motion to
reconsider, the State did not take issue with any of the facts surrounding the second gun. Instead,
it merely presented a legal argument—contending section 24-6 required that “any” gun seized be
confiscated. Thus, the State also forfeited any argument it had with the underlying facts, as it
never challenged those in its motion to reconsider.
¶ 49 Under these circumstances, where the State forfeited the factual speculation it
now attempts to raise for the first time on appeal, and where there is no support in the record for
such speculation, requiring defendant to initiate a postconviction petition would be burdensome
and unnecessary. See generally, People v. Mudd, 54 Ill. App. 3d 603, 605, 370 N.E.2d 37, 39
(1977) (citing People v. Jackson, 26 Ill. App. 3d 845, 849, 326 N.E.2d 138, 141 (1975)). Thus,
we conclude counsel rendered ineffective assistance by agreeing to the forfeiture of both guns at
the hearing on the State’s motion to reconsider.
¶ 50 Accordingly, we affirm the trial court’s judgment except as to forfeiture of the
second gun. Pursuant to our power under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1,
1994), we modify the court’s judgment to provide that a designee of defendant with a valid
FOID card, who is not prohibited from possessing a firearm, be allowed to retrieve defendant’s
- 18 - second seized gun. If the gun has been sold, any proceeds of the sale shall be turned over to
defendant. See LeShoure, 143 Ill. App. 3d at 848, 493 N.E.2d at 692.
¶ 51 III. CONCLUSION
¶ 52 For the reasons stated, we affirm the trial court’s admission of exhibit No. 7 into
evidence but modify the sentencing order as it relates to the second gun.
¶ 53 Affirmed as modified.
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