People v. Higgins

2021 IL App (1st) 181214-U

• Court: Appellate Court of Illinois
• Decided: February 4, 2021
• Docket: 1-18-1214
• Status: Unpublished

Opinion

2021 IL App (1st) 181214-U No. 1-18-1214 Order filed February 4, 2021 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 14423 ) BERNARD HIGGINS, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for unlawful use or possession of a weapon by a felon is affirmed over his contention the State failed to prove beyond a reasonable doubt that he possessed a firearm.

¶2 Following a bench trial, defendant Bernard Higgins was found guilty of unlawful use or

possession of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2016)) and sentenced to No. 1-18-1214

28 months in prison.1 On appeal, defendant contends that he was not proven guilty beyond a

reasonable doubt when the evidence at trial failed to establish that he possessed a “firearm” as

defined by section 1.1 of the Firearm Owners Identification Card (FOID) Act (see 430 ILCS 65/1.1

(West 2016)). We affirm.

¶3 Following his arrest, defendant was charged by information with one count of UUWF and

one count of aggravated unlawful restraint.

¶4 At trial, Chaquita Gooden testified that she and defendant were previously in a relationship

and shared children. Around 3 a.m. on September 9, 2017, defendant came to Gooden’s home. She

let him in because they did not live together, and he did not have keys to the house. Gooden then

went to sleep. She was awakened by defendant shaking her. Defendant was on the phone with a

man Gooden previously dated. Defendant was mad, said his “words,” and left after 30 to 40

minutes. When Gooden’s son returned home around 6 a.m., defendant reentered the house with a

“set look” on his face. Gooden left her bedroom so that defendant could not “corner” her there.

Defendant followed her into the living room, closed the door, and drew a small black firearm.

Gooden jumped back and attempted to leave. However, defendant began “ranting and raving” that

he “should have killed *** [or] pistol whipped” her. Gooden cried and pleaded with defendant to

leave, but he refused. At one point, defendant tried to give her the firearm and apologized, but she

“threw [her] hands back.”

¶5 She left the house around 1 a.m. the next day to pick up her daughter from a cousin’s home.

Gooden explained that she could not leave earlier because defendant took her keys and phone and

1 In the record, defendant’s last name is spelled as both Higgins and Heggins. In this order, we adopt the spelling from defendant’s notice of appeal.

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did not allow her to leave the house. She did not contact the police because her sons were in the

house with defendant. When Gooden returned, defendant was standing in the doorway. She entered

the house and sat on the couch. Defendant wanted her to lie down with him and Gooden complied

because she was scared and did not want any harm to come to her or the children. Once defendant

fell asleep, Gooden dressed, left the house, drove around the corner, and phoned the police. When

the police arrived, she let them into the house using her daughter’s keys. The police woke

defendant, arrested him, and recovered a firearm that she identified as the one defendant held and

pointed at her. Gooden did not possess a firearm.

¶6 During cross-examination, Gooden testified that she and defendant argued because Gooden

was dating someone. Although she and defendant had not been in a relationship “for years,” they

were previously “on and off” for many years and she acknowledged having been upset in the past

when defendant dated someone. Gooden acknowledged that defendant did not draw the firearm

until he reentered the house. After defendant drew the firearm, Gooden was upset and cried. She

denied watching television with defendant or ordering pizza; rather, defendant ordered pizza. She

slept on the left side of the bed, in the same bed with defendant. Defendant took her house keys

off the key ring, but not the automobile keys. As the police arrested defendant, she overheard them

ask if defendant had anything that he should not have, and defendant reply he had cannabis.

¶7 During redirect examination, Gooden testified that officers showed her the recovered

firearm and that it was the same firearm that defendant “pulled” on her. She believed that after

defendant initially drew the firearm, he put it in his pocket.

¶8 Chicago police officer Joseph Tuman testified that after he and other officers were allowed

into the house by Gooden, they proceeded to the bedroom where defendant was asleep in the

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middle of the bed. The officers woke defendant and told him to exit the bedroom. As Tuman

walked to the right side of the bed, he noticed the butt of a firearm protruding from underneath the

mattress. Tuman observed two inches of the firearm, which he recovered and described as a blue

steel .38-caliber Smith and Wesson. The firearm had a two-inch barrel and contained five rounds

of ammunition. Defendant was about three feet from the firearm, which was located at the middle

of the bed rather than at the head or foot. When Tuman showed the firearm to Gooden, she

identified it as the one that was “displayed.” Gooden appeared “shooken up.”

¶9 During cross-examination, Tuman testified that he was one of three officers present. He

did not recover narcotics from defendant and did not know if other officers did.

¶ 10 The State stipulated that defendant was previously convicted of “the felony amount of

scheduled substances one and two” in case number 13 CR 2249001.

¶ 11 The defense then recalled Gooden, who testified that she observed the police enter the

bedroom, but was not in the room when the firearm was recovered and did not know where it was

located. Gooden testified that she did not have company at her home and did not have a boyfriend,

but had “contact” with “Jeff,” who sometimes slept at her home. Since this incident, defendant had

not slept at her home, and she had not slept at defendant’s home or engaged in sexual intercourse

with defendant. She denied engaging in sexual intercourse with defendant the day before trial.

¶ 12 Defendant testified that he and Gooden lived together for 10 years. After they broke up, he

still was in contact with her because they shared three children. When he went to Gooden’s home

on September 9, 2017, they argued when he “first came in” because he observed a text on her

phone indicating she was “messing” with another man. However, he did not have a firearm, did

not threaten her, and did not say he wanted her keys. After sleeping, defendant went to the store

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and then returned. Later in the day, the family had pizza. Gooden left and then returned. Defendant

and Gooden then slept in the same bed although they did not engage in sexual intercourse. He

woke to the police “in [his] face.” He did not observe the police recover a firearm and there was

no firearm on his side of the bed. Defendant told the police that he had marijuana in his pocket.

¶ 13 Since this incident, defendant was in contact with Gooden on a weekly basis when she

picked up money for their children. They had engaged in sexual intercourse since this incident,

including the day before trial began.

¶ 14 During cross-examination, defendant testified that he went through Gooden’s phone when

he arrived at her home, found “Jeff’s” number, and called Jeff. Defendant denied that the call to

Jeff started the argument; rather, it began when defendant went through Gooden’s phone and

observed a text in which Gooden stated she was “messing with Terrell.” Although there was an

argument, defendant denied being angry.

¶ 15 The trial court found defendant guilty of UUWF and not guilty of aggravated unlawful

restraint. Defendant filed a motion for a new trial, which the court denied. Following a hearing,

the court sentenced defendant to 28 months in prison.

¶ 16 On appeal, defendant contends that he was not proven guilty of UUWF when the State

failed to prove that he possessed a “firearm” as defined by Illinois law.

¶ 17 When reviewing a challenge to the sufficiency of the evidence, “the question is ‘whether,

after viewing 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.’ ” (Emphasis in

original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307,

319 (1979)). The trier of fact is responsible for resolving conflicts in the testimony, weighing the

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evidence, and drawing reasonable inferences from the facts presented at trial. McLaurin, 2020 IL

124563, ¶ 22. “In reviewing the evidence, this court will not retry the defendant, nor will we

substitute our judgment for that of the trier of fact.” McLaurin, 2020 IL 124563, ¶ 22. A

defendant’s conviction will be reversed only when the evidence is so unreasonable, improbable,

or unsatisfactory that it created a reasonable doubt of his guilt. People v. Newton, 2018 IL 122958,

¶ 24.

¶ 18 Here, in order to sustain a conviction for UUWF, the State was required to prove defendant

knowingly possessed a firearm after having previously been convicted of a felony. 720 ILCS 5/24-

1.1(a) (West 2016); see also People v. Gonzalez, 151 Ill. 2d 79, 85 (1992) (determining the

“essential elements” of the offense of UUWF are the knowing possession of a firearm and a prior

felony conviction). Section 1.1 of the FOID Act defines a “firearm” as, in pertinent part, “any

device, by whatever name known, which is designed to expel a projectile or projectiles by the

action of an explosion, expansion of gas or escape of gas.” 430 ILCS 65/1.1 (West 2016); see also

720 ILCS 5/2-7.5 (West 2016) (stating that except as otherwise provided in a specific section, the

term “firearm” has the meaning ascribed to it in section 1.1 of the FOID Act). In the case at bar,

defendant does not challenge the evidence demonstrating his prior qualifying conviction; rather,

he solely argues the State failed to prove that he knowingly possessed a firearm within the meaning

of the statute.

¶ 19 Here, a rational trier of fact could have found that defendant possessed a firearm when

Gooden testified that defendant drew a small black firearm, Tuman described the item recovered

from the bedroom where defendant slept as a blue steel .38-caliber Smith and Wesson with a two-

inch barrel that contained five rounds, and Gooden identified the firearm recovered by officers as

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the same one that defendant possessed. Although the object in question was not entered into

evidence at trial, we have previously held that the State is not required to “prove the gun is a

firearm by direct or physical evidence, [because the] unequivocal testimony of a witness that the

defendant held a gun is circumstantial evidence sufficient to establish that a defendant is armed”

with a firearm. People v. Fields, 2017 IL App (1st) 110311-B, ¶ 36. Here, Gooden testified that

defendant threatened her with a firearm and she then identified the firearm once it was recovered

by police. Taking the evidence in the light most favorable to the State, we cannot say that no

rational trier of fact could have found that defendant possessed a firearm. McLaurin, 2020 IL

124563, ¶ 22.

¶ 20 Defendant, however, relies in part on the decision of another panel of this court in People

v. McLaurin, 2018 IL App (1st) 170258, to argue that Gooden’s and Tuman’s testimony was

insufficient to support the inference that the object at issue was a “firearm” as defined by statute.

However, as noted by the State, that case was recently reversed by our supreme court. See

McLaurin, 2020 IL 124563, ¶ 1.

¶ 21 In McLaurin, our supreme court considered whether the State presented sufficient evidence

that the defendant possessed a firearm, as defined by the FOID Act, to sustain his armed habitual

criminal conviction. See McLaurin, 2020 IL 124563, ¶¶ 21-38.

¶ 22 In that case, a police officer testified that she observed the defendant exit an apartment

building “ ‘carrying a silver handgun’ ” and enter a van. McLaurin, 2020 IL 124563, ¶ 4. The

officer was approximately 50 feet away and her view was not obstructed. McLaurin, 2020 IL

124563, ¶ 4. The van was subsequently curbed by other officers. McLaurin, 2020 IL 124563, ¶ 4.

The defendant and two other men exited, and a firearm was recovered. McLaurin, 2020 IL 124563,

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¶ 5. Shortly thereafter, the officer was asked to identify the firearm at a police station. McLaurin,

2020 IL 124563, ¶¶ 5-6. She identified the recovered firearm as “ ‘the same color [and] size’ ” as

the firearm she observed in the defendant’s hand. McLaurin, 2020 IL 124563, ¶ 5. The officer

further testified that during her 12 years as a police officer, she had worked with firearms and was

familiar with them. McLaurin, 2020 IL 124563, ¶ 5. A second officer testified that a “9-millimeter

chrome handgun” was recovered from underneath the van. McLaurin, 2020 IL 124563, ¶ 8. The

firearm itself was not offered into evidence. McLaurin, 2020 IL 124563, ¶ 8. The defendant was

found guilty of being an armed habitual criminal and sentenced to seven years in prison. McLaurin,

2020 IL 124563, ¶ 16.

¶ 23 The appellate court reversed, determining that the officer’s testimony that she observed the

defendant with an object she believed was a firearm was insufficient to sustain the conviction.

People v. McLaurin, 2018 IL App (1st) 170258, ¶¶ 27-28. The court explained that in a firearm

possession case, “the item possessed cannot be inferred from circumstantial evidence but must be

proven beyond a reasonable doubt to be a firearm as defined by the statute.” People v. McLaurin,

2018 IL App (1st) 170258, ¶ 24. The supreme court granted the State’s petition for leave to appeal.

¶ 24 In analyzing the issue, our supreme court relied on its prior holdings in People v.

Washington, 2012 IL 107993, and People v. Wright, 2017 IL 119561. In Washington, our supreme

court considered whether the State presented sufficient evidence of a “dangerous weapon” to prove

the defendant guilty of armed robbery, aggravated kidnaping, and aggravated vehicular hijacking

when the weapon was not recovered and no testimony detailed the size, weight, or metallic nature

of the weapon. Washington, 2012 IL 107993, ¶¶ 1, 24, 29. In affirming the defendant’s convictions,

our supreme court relied upon the victim’s testimony that the defendant pointed a firearm at him,

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forced him into a truck, held the firearm to his head, and again pointed the firearm at him while

forcing him into the cargo area of a truck. Washington, 2012 IL 107993, ¶ 35. The court noted that

the victim, who had an unobstructed view of the weapon for several minutes, testified that it was

a firearm and rejected the argument that “it could not be known for sure whether the gun was real

or a toy because no gun was ever recovered.” Washington, 2012 IL 107993, ¶¶ 35-36. As such,

considering the victim’s “unequivocal testimony and the circumstances under which he was able

to view the gun, the jury could have reasonably inferred that defendant possessed a real gun.”

Washington, 2012 IL 107993, ¶ 36.

¶ 25 Similarly, in Wright, our supreme court considered whether there was sufficient evidence

that a codefendant was armed with a “firearm,” as defined in the FOID Act, so as to support the

defendant’s armed robbery conviction. Wright, 2017 IL 119561, ¶¶ 69-77. At trial, the victim

testified that the codefendant said “ ‘ “[t]his is a robbery” ’ ” and lifted a hoodie to reveal what

“ ‘looked like a black automatic, black gun.’ ” Wright, 2017 IL 119561, ¶ 9. The victim further

testified that he thought the firearm was semiautomatic, had experience firing such weapons, and

that during the incident he “ ‘felt something sharp in [his] back,’ ” which he thought was a firearm.

Wright, 2017 IL 119561, ¶¶ 9-10. The victim was “ ‘100% sure’ ” the item displayed was an “

‘actual firearm.’ ” Wright, 2017 IL 119561, ¶ 29. A second witness testified she saw the handle of

a firearm in the codefendant’s waistband and a third witness testified not only that he saw the

handle of the codefendant’s firearm, but that he had seen firearms before and believed that the

firearm was a “ ‘9[-]millimeter pistol.’ ” Wright, 2017 IL 119561, ¶ 12. In finding that the evidence

was sufficient to prove that the codefendant was armed with a firearm during the robbery, the court

stated that its decision was controlled by the rationale expressed in Washington, where it “relied

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on the testimony of a single witness and concluded that a rational trier of fact could infer from the

testimony that the defendant possessed a ‘real gun.’ ” Wright, 2017 IL 119561, ¶ 76.

¶ 26 In McLaurin, the supreme court relied on both Washington and Wright to find that although

the evidence was “not overwhelming” and no firearm was introduced into evidence, “a rational

trier of fact could infer from the testimony presented in this case that [the] defendant possessed a

firearm as defined by the FOID Act.” McLaurin, 2020 IL 124563, ¶¶ 32-35. The court noted that

the officer testified she observed the defendant “ ‘carrying a silver handgun,’ ” was familiar with

handguns, and identified the firearm recovered as being the same size and color as the firearm she

observed in the defendant’s hand. McLaurin, 2020 IL 124563, ¶¶ 33-34. The court rejected the

defendant’s argument that the evidence was insufficient because it “simply consisted of [the

officer’s] testimony that she thought she saw a chrome item in defendant’s hand that seemed to be

a firearm” and did not provide details “including whether it was a semiautomatic or revolver.”

McLaurin, 2020 IL 124563, ¶ 35.

¶ 27 Here, as in McLaurin, although no firearm was offered into evidence at trial, there was

sufficient evidence that defendant possessed a firearm when Gooden testified that defendant had a

small black firearm, Tuman testified that he recovered a firearm, which he described in detail, from

the bedroom where defendant was sleeping, and Gooden testified that the firearm recovered by

officers was the same one possessed by defendant. Viewing this evidence in the light most

favorable to the State, it was not so unreasonable, improbable, or unsatisfactory that no rational

factfinder could have found beyond a reasonable doubt that defendant possessed a firearm as

defined by the FOID Act. See McLaurin, 2020 IL 124563, ¶ 38. Accordingly, we affirm

defendant’s conviction for UUWF.

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¶ 28 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 29 Affirmed.

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