People v. Whitehead

2024 IL App (1st) 231008-U

• Court: Appellate Court of Illinois
• Decided: September 10, 2024
• Docket: 1-23-1008
• Status: Unpublished

Opinion

2024 IL App (1st) 231008-U SECOND DIVISION September 10, 2024

No. 1-23-1008

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 22 CR 02900 ) SHAQUILLE WHITEHEAD, ) Honorable ) Angela Munari Petrone, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

JUSTICE HOWSE delivered the judgment of the court. Justices McBride and Cobbs concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court of Cook County convicting defendant of armed habitual criminal (AHC); the trial court did not consider facts not in evidence or abandon its role as neutral arbiter to deny defendant a fair trial; the evidence was sufficient to prove defendant’s guilt beyond a reasonable doubt; and the AHC statute is constitutional under the United States and Illinois constitutions.

¶2 The State charged defendant, Shaquille Whitehead, with armed habitual criminal (AHC),

unlawful use of a weapon by a felon, and three counts of aggravated unlawful use of a weapon.

Following a bench trial, the circuit court of Cook County found defendant guilty of AHC and

UUWF. The court merged the conviction for UUWF into the conviction for AHC and sentenced

defendant to six years’ imprisonment for AHC. Defendant appeals the conviction on the grounds

(1) the trial court denied defendant a fair trial by considering facts not in evidence and

abandoning its role as neutral arbiter of the facts and adopting the role of prosecutor, (2) the State 1-23-1008

failed to prove him guilty of every element of the offense of AHC beyond a reasonable doubt,

and (3) the AHC statute is unconstitutional on its face and as applied to defendant under both the

United States Constitution and Illinois Constitution.

¶3 For the following reasons, we affirm.

¶4 BACKGROUND

¶5 The charges against defendant arose from a traffic stop of a vehicle defendant was

driving with one passenger. The State called one of the officers who stopped defendant’s vehicle

as its only live witness at defendant’s bench trial. The State also submitted into evidence footage

from the testifying officer’s body worn camera and the footage from the body worn camera of

one of the other officers involved in the traffic stop, but the second officer did not testify.

¶6 Officer Axel Gallardo of the Chicago Police Department testified that on February 9,

2022, he and his partner, Officer Rojas Yesenia, conducted a traffic stop. Officer Gallardo

approached the passenger side of the vehicle and his partner approached the driver’s side of the

vehicle. Officer Gallardo observed two people in the vehicle. He identified defendant as the

driver. Defendant did not have a valid driver’s license and the officers decided to tow the

vehicle. At that time, defendant was already out of the vehicle. Officer Gallardo asked the

passenger to exit the vehicle but the passenger did not immediately exit the vehicle. Officer

Yesenia recovered a loaded handgun from the pocket of a jacket the passenger was wearing.

Officers eventually removed the passenger from the vehicle and placed him into custody.

¶7 Officer Gallardo testified that after police placed the passenger into custody they

conducted an inventory search of the vehicle. During the inventory search, police found a firearm

“In the middle of the backseat on top of a child’s car seat.” The car seat was in the middle of the

backseat of the vehicle. Officer Gallardo testified he did not see the gun immediately because

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there was a blanket on top of the firearm. There was nothing else on top of the firearm other than

the blanket. Officer Gallardo removed “a laundry basket, clothes, and the blanket” before he

recovered the gun. The gun was loaded, it had an extended magazine, and it had a laser sight.

¶8 Officer Gallardo testified that at the time of the traffic stop he was wearing a body worn

camera. The State published the footage of the traffic stop from Officer Gallardo’s body worn

camera to the trial court without objection. Officer Gallardo verbally described his actions.

Officer Gallardo testified that he was searching the vehicle defendant had been driving. He

removed a plastic bag containing clothes. He recovered the firearm. Officer Gallardo testified he

recovered the firearm “On the child’s car seat. On top of the child’s car seat.” He pointed out the

exact area of the car seat where he recovered the firearm. The State asked that the record reflect

“that the officer pointed on the car seat.” The trial court asked the officer to point again and the

court clarified that the officer “pointed to an area that’s kind of reddish or pink on the car seat

which is to the left of the white basket as one is looking at the [image.]” The court asked if the

officer recovered the firearm “from the top of that which is now gray or black ***?” Officer

Gallardo identified the side of the car seat. The court asked, “Where did you recover it?” The

officer responded, “Where the child usually sits.” The court stated, “Oh, on the seat. That’s on

top of where the pink or red color is?” and the officer responded, “Yes.” The State stopped the

recording.

¶9 Officer Gallardo testified that he spoke to defendant with his partner present. The officer

read defendant his Miranda rights, after which he asked defendant who was the registered owner

of the vehicle. The officer testified that defendant stated the registered owner was his sister. The

officer testified that defendant also stated that “he came back from doing laundry” at the

laundromat, “and he said that he had no knowledge of the firearm.”

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¶ 10 Upon further examination by the State, Officer Gallardo testified there were two people

in the vehicle and no one was seated in the backseat. The State asked the officer to “describe

how the blanket was placed over the gun.” The officer testified, “It looks like the blanket was

placed over the gun.” The blanket was partially folded. When asked what he meant by “partially”

the officer testified, “It looks like it was just thrown into the car seat ***.” The firearm was

within arm’s reach of where defendant was seated and there was nothing else covering the

firearm besides the blanket.

¶ 11 On cross-examination, Officer Gallardo testified that defendant was being cooperative

with Officer Yesenia. When asked to exit the vehicle defendant did so. Officer Gallardo admitted

that the passenger was also within arm’s reach of the firearm recovered from the backseat of the

vehicle. The passenger did not get out of the car when asked and officers eventually had to

physically remove the passenger from the vehicle. Officer Gallardo agreed he had no way of

knowing how long the firearm was in the car seat or how long the passenger or defendant were in

the car. Officer Gallardo testified defendant told him he was coming back from doing laundry

and the officer found a bag of laundry and a laundry basket in the car. The bag of laundry and the

laundry basket were not on top of the firearm. Officer Gallardo had no idea how long the blanket

had been there.

¶ 12 The State did not perform a redirect examination and asked that the officer be excused.

The trial court asked the defense if it needed the officer to stay and the defense stated it had no

objection to the officer being excused. The trial court initially excused the officer, but then stated

the court had “a couple of questions of the officer.” The officer retook the stand and the court

asked the officer what type of handgun he found. The officer responded, “It’s and FN firearm.”

The officer could not recall what the abbreviation “FN” meant or the caliber of the firearm. The

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State refreshed the officer’s memory with his case report, and the officer testified that, “It’s an

FN 509, nine millimeter.” The court asked whether the officer recalled the type of vehicle

defendant was driving. Officer Gallardo testified only that “It’s a black vehicle.” He refreshed

his memory again and stated, “Black Chevy, ma’am;” but the officer could not recall the kind of

Chevy. The trial court asked the State and the defense whether either had any questions based on

the court’s questions and both responded they did not.

¶ 13 The State informed the trial court it had no further live witnesses and that it would be

proceeding by stipulation. The parties stipulated that the footage of Officer Rojas’s body worn

camera was a true and accurate depiction of the events. The trial court admitted the recording

into evidence and the State published the video to the court. The court also admitted self-

authenticating certified copies of defendant’s two prior convictions for burglary.

¶ 14 The State rested its case and the defense moved for a directed finding. The trial court

denied defendant’s motion for a directed finding and the parties proceeded with closing

arguments. At the conclusion of the parties’ arguments the court stated it wanted “to look up

some law about guns found in vehicles” and continued the matter.

¶ 15 On December 8, 2022, the trial court issued its written order following the bench trial.

The court found defendant guilty of AHC and UUWF. “The State nolle prosequi [the remaining

counts.]” The trial court’s written order states, in pertinent part, that the officers stopped “a small

black Chevrolet.” When asked for his driver’s license and insurance defendant could not produce

them and said, “Coming right from the laundromat.” Defendant complied with the officer’s

request to exit the vehicle. The court wrote: “An inventory search of the Chevrolet yielded a .9

mm handgun with a laser sight and an extended magazine, atop a child’s car seat in the middle of

the backseat. A blanket had been loosely covering the gun. A large white bag of clothes and a

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laundry basket were immediately next to the gun.” The court recounted defendant’s statement to

the officer about the car belonging to his sister and coming from the laundromat, then continued

as follows:

“The State argued constructive possession of the .9 mm handgun that was

on top of the child’s car seat was proven. Joint knowledge and control exist; the

gun was within arm’s reach of where defendant and the passenger had been

seated. It had been put there recently, as it would have fallen from its position

with a sudden stop of the vehicle. The blanket covering the gun was not

random—it went with the laundry defendant admitted possessing. There were not

a lot of other things in the vehicle. It would have been impossible to place the

laundry where it was, and not realize a gun was on top of the car seat. *** The

gun was not under a seat, in the glove box or inside a door or inside a center

console or in the trunk.”

¶ 16 The trial court noted that the gun was “equal distance between the driver and passenger;

both were within arm’s reach of it.” The court acknowledged the gun was not in plain sight, it

was unknown how long it had been there, this was not defendant’s vehicle, and defendant “did

not act suspiciously and aggressively like the passenger did.” The court noted that proximity is

not enough for proof beyond a reasonable doubt.

¶ 17 The court summarized the holdings in People v. Foster, 394 Ill. App. 3d 163 (2009), and

People v. Spears, 2022 IL App (1st) 201290-U, and the evidence in this case. Of note is that the

court stated that in Spears, the court found that, “If two or more persons share immediate and

exclusive control or share the intention and power to exercise control, then each has possession;

where possession has been shown, an inference of guilty knowledge can be drawn from the

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surrounding facts and circumstances.” Further, in Spears, the court found that “[w]here a

defendant was the driver of a vehicle, and had merely a lone passenger, defendant had immediate

and exclusive control of the inside of the automobile for purposes of constructive possession.”

Finally, the trial court here noted that in Spears, the court found that “a defendant’s mere

presence in a vehicle, without more, does not establish his knowledge of a weapon therein,” but

“[a]n inference of knowledge arises when the contraband is located in a place over which the

defendant had regular ongoing, control and it is an item that human experience teaches is rarely,

if ever, found unaccountably in such a place. A defendant’s close proximity to the weapon and a

description of where the weapon was found may also be considered.”

¶ 18 The trial court then wrote:

“A *** weapon, a .9 mm handgun with laser sight and extended magazine,

was found atop a child’s car seat in the middle of the backseat, immediately next

to a laundry basket and a bag of clothing, loosely covered by a blanket. The area

where this weapon was recovered was easily within arm’s reach of both defendant

and the front seat passenger; body camera video shows the Chevrolet defendant

was driving was a small vehicle. The weapon was in a location over which

defendant had control and had placed laundry shortly before. The weapon was

recently put atop the child’s seat—such a large and distinctive handgun would not

normally be left atop a child’s car seat in a vehicle, certainly would have fallen

upon sudden stop of the vehicle, and was loosely covered by a blanket; body cam

video shows blankets were part of the laundry that was in the backseat.”

¶ 19 Based on the findings stated above, the trial court found that the State proved beyond a

reasonable doubt that defendant “knew the .9 mm firearm with laser sight and extended

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magazine that was found in the backseat, atop the child’s car seat, was in the Chevrolet. The

evidence proved beyond a reasonable doubt that defendant constructively possessed that

firearm.”

¶ 20 Defendant filed a motion to reconsider the judgment. On May 4, 2023, the trial court

denied defendant’s motion to reconsider the finding of guilt in a written order.

¶ 21 On May 4, 2023, the trial court sentenced defendant. In its oral sentencing ruling, the trial

court noted that the sentencing range for AHC is six to thirty years. The court noted the nature of

the weapon, which it “consider[ed] to be significant.” The trial court initially described the

firearm as a “machine gun” but immediately corrected itself to say that “the weapon in this case

was a .9 millimeter handgun loaded with a laser sight and an extended magazine.” The court

agreed there was no evidence defendant actually used the gun and that his prior convictions

“were all burglaries, no indication of physical harm to someone else.” The court also found that

there “is some mitigating information in the presentence investigation in that [defendant] was

cooperative with the officers as shown on the video.” The court found “all of that warrants the

minimum sentence here of six years in the Illinois Department of Corrections.”

¶ 22 This appeal followed.

¶ 23 ANALYSIS

¶ 24 This is an appeal from a conviction following a bench trial attacking the fairness of the

trial based on the trial court’s alleged reliance on facts not contained in the record and

questioning of a witness, the sufficiency of the evidence to prove defendant guilty of every

element of the offense beyond a reasonable doubt, and the constitutionality of the criminal

statute under which the trial court convicted defendant.

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¶ 25 Our supreme court “has held that the deliberations of the trial judge are limited to the

record made before [it] during the course of the trial. A determination made by the trial judge

based upon a private investigation by the court or based upon private knowledge of the court,

untested by cross-examination, or any of the rules of evidence constitutes a denial of due process

of law.” People v. Wallenberg, 24 Ill. 2d 350, 354 (1962). Although “[t]he rule is clear that when

the trial court is the trier of the facts every presumption will be accorded that the judge

considered only admissible evidence and disregarded inadmissible evidence in reaching his

conclusion” (Wallenberg, 24 Ill. 2d at 354), this presumption is rebutted by statements in the

record indicating the trial judge “considered matters which were not in evidence” (id.). Where

the trial judge considered matters not in evidence, “there is no alternative but to reverse and

remand for a new trial.” Id. In these circumstances “[w]hether a defendant’s due process rights

have been denied is an issue of law, and thus, our review is de novo.” People v. Heard, 2021 IL

App (1st) 192062, ¶ 16 (the defendant argued the trial judge violated his right to due process

when the judge misremembered crucial evidence).

¶ 26 Furthermore, “a trial court has discretion to *** reopen a case on its own motion where a

sound basis for it appears in the record. [Citation.] The propriety of the judicial examination

depends on the circumstances of each case and rests largely in the trial court’s discretion.

[Citation.]” People v. Evans, 2017 IL App (1st) 150091, ¶¶ 24-25. We review matters committed

to the trial court’s discretion, including matters impacting a defendant’s right to a fair trial, for an

abuse of discretion. See People v. Buckner, 376 Ill. App. 3d 251, 257-58 (2007) (“When a

defendant argues that his due process rights and right to a fair trial were violated by the State’s

failure to disclose certain evidence in discovery, we review the trial court’s ruling on the matter

for an abuse of discretion.”). “An abuse of discretion occurs when no reasonable person would

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take the view adopted by the court. [Citations.] Moreover, the trial court’s ruling will not be

overturned unless the abuse of that discretion led to manifest prejudice against defendant.”

People v. Burgess, 2015 IL App (1st) 130657, ¶ 134 (citing People v. Hudson, 157 Ill. 2d 401,

435 (1993)).

¶ 27 “When reviewing the sufficiency of the evidence,” “the relevant inquiry is whether, after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. [Citation.] This standard of

review applies in cases whether the evidence is direct or circumstantial.” People v. Rios, 2022 IL

App (1st) 171509, ¶ 48.

¶ 28 “Constitutional challenges carry the heavy burden of successfully rebutting the strong

judicial presumption that statutes are constitutional. That presumption applies with equal force to

legislative enactments that declare and define conduct constituting a crime and determine the

penalties imposed for such conduct.” (Internal quotation marks and citations omitted.) People v.

Smith, 2024 IL App (1st) 221455, ¶ 9. “The constitutionality of a statute is a question of law,

which is reviewed de novo.” Id.

¶ 29 For the reasons below, we find that the trial court did not deny defendant his right to a

fair trial by considering facts not in evidence or briefly questioning Officer Gallardo, the

evidence was sufficient to prove defendant guilty of every element of AHC beyond a reasonable

doubt, and the AHC statute is constitutional under the United States Constitution and Illinois

Constitution.

¶ 30 FAIRNESS OF DEFENDANT’S TRIAL

¶ 31 First, we turn to defendant’s argument the trial court deprived him of the right to a fair

trial by allegedly relying on facts not in evidence and abdicating its role as a neutral arbiter of the

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facts and adopting the role of a prosecutor when the trial court questioned Officer Gallardo.

Defendant argues the trial court relied on facts not in evidence to find him guilty, thereby

depriving him of his right to a fair trial. Defendant admits this issue was not properly preserved

for review and asks this court to review this issue as a matter of plain error. “To successfully

maintain a claim of either first- or second-prong plain error *** a defendant must prove actual

error.” People v. Mudd, 2022 IL 126830, ¶ 22. That is why, “[u]nder the plain error doctrine, ‘the

first step’ is to determine whether any error occurred at all.” People v. Henderson, 2017 IL App

(1st) 142259, ¶ 197.

¶ 32 Once again, “the deliberations of the trial judge are limited to the record made before

[them] during the course of the trial. A determination made by the trial judge based upon a

private investigation by the court or based upon private knowledge of the court, untested by

cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”

Wallenberg, 24 Ill. 2d at 354. Nonetheless,

`“In a bench trial, it is the function of the trial court to determine the

credibility of witnesses, weigh the evidence, draw reasonable inferences

therefrom, and resolve any conflicts in the evidence. [Citation.] The trial court is

‘free to accept or reject as much or as little as it pleases of a witness’ testimony’

[citation] and ‘may take into account her own life and experience in ruling on the

evidence’ [citation]. ***.” People v. Petrov, 2023 IL App (1st) 160498, ¶¶ 54-55.

“A trier of fact may infer from facts and circumstances in evidence other

connected facts that reasonably and usually follow according to common

experience. [Citations.] A trier of fact is not required to disregard inferences that

flow normally from the evidence, nor to seek all possible explanations consistent

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with innocence and elevate them to reasonable doubt, nor to be satisfied beyond a

reasonable doubt as to each link in the chain of circumstances if the evidence as a

whole satisfies the trier of fact beyond a reasonable doubt. [Citation.]” People v.

Sherman, 2020 IL App (1st) 172162, ¶ 35.

“We need only reverse a court’s determination when the trial court’s

reliance on matters outside the record is prejudicial to one of the parties.

[Citation.] However, ‘[r]eliance on information found [outside] the record is not

reversible error where there is no evidence that it either misled or entered into the

trial court’s determination.’ [Citation.] We afford a trial court every presumption

that it considered only admissible evidence in reaching a conclusion. [Citation.]

‘This assumption will be overcome only if the record affirmatively demonstrates

the contrary, as where it is established that the court’s finding rests on a private

investigation of the evidence, or on other private knowledge about the facts in the

case.’ [Citation.]” Petrov, 2023 IL App (1st) 160498, ¶¶ 54-55.

¶ 33 Defendant asserts the record demonstrates the trial relied on the following specific facts

which defendant claims were not in evidence:

1. The blankets were part of the laundry that was in the backseat.

2. The gun was in a location where defendant had placed laundry shortly before.

3. The handgun was found atop a child’s car seat.

4. A blanket had been loosely covering the gun.

5. The handgun certainly would have fallen upon sudden stop of the vehicle.

6. The handgun was large and distinctive.

7. The car was small.

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¶ 34 First, we address defendant’s implication of a distinction between the trial court saying

the handgun was found “atop” the car seat rather than “where the child usually sits,” from which

we can only infer that defendant believes the trial court found the handgun was on top of the

backrest of the car seat rather than on top of the seat of the car seat, as Officer Gallardo testified.

Defendant argues this allegedly inaccurate assumption by the trial court led the trial court to

conclude the handgun would have fallen from the car seat upon a sudden stop. These arguments

fail.

¶ 35 Defendant offers no evidence that is what the trial court meant other than his own

characterization of what “atop” means. We reject defendant’s characterization as refuted by the

record. The State’s statement for the record about where the handgun was found was admittedly

vague. The trial court questioned Officer Gallardo itself to clarify his testimony. It was in

response to the trial court’s questioning that Officer Gallardo testified the gun was found "where

the child usually sits.” The record, rather than establishing that the trial court relied on a fact not

in evidence, establishes that the trial court was keenly interested in and consciously aware of the

exact location where the gun was recovered.

¶ 36 Next, defendant also argues the State offered no evidence of what was or was not a part

of defendant’s laundry, and the trial court’s speculation led the court to conclude the handgun

was in a place where defendant had just placed laundry and therefore he must have seen it.

Defendant argues the officer never testified the blanket was “loosely” covering the handgun.

Defendant argues the conclusion the blanket “loosely” covered the handgun is belied by the

recording from Officer Gallardo’s body worn camera which shows the officer “pulling hard” on

the blanket to remove it. Defendant separately argues the State “never established that a gun

placed on the seat ‘where the child usually sits’ and covered by a blanket would have fallen

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anywhere upon a sudden stop of the vehicle, or that the gun must have been placed on the seat

recently.”

¶ 37 Defendant argues these facts, which allegedly are not part of the record, led the trial court

to reason that because the gun had not fallen then it must have been put there only recently, and

if it were put there recently it must have been put there by defendant, which, defendant argues,

led to the court’s determination that the State proved that defendant “had knowledge of the gun.”

Defendant also argues the State offered no evidence of the size of the handgun or of the car, yet

the trial court relied on the fact the gun was “large and distinctive” and the car was “small” to

find him guilty. Defendant argues that the trial court’s assumption of a fact not in evidence about

the size of the car permitted the court to find the State proved the handgun was in arm’s reach

and, therefore, that defendant constructively possessed the gun. Defendant does not explicitly

argue, as he did with the other alleged facts not in evidence, how the trial court’s alleged

adoption of the fact of the size and distinctiveness of the handgun influenced its decision and

prejudiced him.

¶ 38 The State responds the evidence adduced at trial supported the reasonable inferences that

defendant had recently placed the laundry in the car and that the blanket was part of the laundry.

The State points to evidence that defendant stated he was coming from the laundromat and the

proximity of the blanket to the laundry basket and bag of clothes as supporting the inferences

that the blanket was part of the laundry and had recently been placed in the car. The State argues

the recording from the officer’s body worn camera shows the size of the car and the trial court

expressly based its finding about the size of the car on the video.

¶ 39 The State also argues the recording shows the size and shape of the handgun and, further,

that the officer testified that the handgun was a .9 mm caliber with a laser sight and distinctive

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magazine, both of which support the trial court’s finding that the gun was large and distinctive.

The State points to the officer’s testimony that it appeared the blanket had been thrown into the

seat, and the depiction of the area in the recording, as supporting the inferences that the blanket

“loosely” covered the gun and that the gun would have fallen off the seat in the event of a sudden

stop. The State argues it was for the trial court to decide what the fact the officer had to “pull

hard” on the blanket meant and that the court could have decided it just meant the blanket was

large.

¶ 40 In reply, defendant offers his own interpretation of what the same facts noted by the State

mean, positing counter-inferences and what defendant believes to be “the most likely scenario.”

Defendant argues the size of the blanket supports his argument the gun was completely

concealed and, therefore, he did not know it was present. Defendant simply denies that it can be

inferred from the “fact that a small portion of the blanket hung very slightly over the bag of

laundry” (a fact the trial court did not rely on) that defendant placed the blanket in the car and

over the gun.

¶ 41 We find that the trial court did not make any determinations based upon information not

in the record. Wallenberg, 24 Ill. 2d at 354. Rather, the trial court properly weighed the evidence

and drew reasonable inferences therefrom. Moreover, the trial court was free to accept Officer

Gallardo’s admissible testimony about the blanket and properly took into account its own life

and experience in ruling on the evidence. Petrov, 2023 IL App (1st) 160498, ¶¶ 54-55. This

record does not affirmatively demonstrate the contrary. Id. Defendant’s arguments are largely

based on inferences consistent with innocence rather than guilt. The trial court was not “required

to disregard inferences that flow normally from the evidence, nor to seek all possible

explanations consistent with innocence and elevate them to reasonable doubt.” Sherman, 2020 IL

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App (1st) 172162, ¶ 35. Finally, defendant complains the trial court’s judgment is based on “a

string of inferences.” This assertion does not lead to the conclusion that the evidence is so

improbable or unsatisfactory to create a reasonable doubt of defendant’s guilt. Spears, 2024 IL

App (1st) 181491, ¶ 194 (“We will not reverse the *** verdict for lack of evidence unless the

evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the

defendant’s guilt.’ [Citation.]”). “The State has the burden of establishing each element of the

offense beyond a reasonable doubt. However, this burden does not require that the State

demonstrate every link in the chain; rather the court can rely upon the reasonable inferences

which arise from circumstantial evidence.” People v. Lynch, 241 Ill. App. 3d 986, 992 (1993).

And, “a criminal conviction ‘may be based solely on circumstantial evidence.’ [Citation.]”

People v. Mallett, 2023 IL App (1st) 220920, ¶ 62.

¶ 42 The finding that “[t]he blanket covering the gun *** went with the laundry defendant

admitted possessing” is a reasonable inference from defendant’s own admission he was just

coming from the laundromat, the nature of the item itself—which defendant admits was a large

blanket—and its proximity to other items that defendant does not dispute were part of the

laundry he had just done—specifically the laundry basket and bag of clothes. The trial court

noted another fact—one which defendant does not dispute—that supports the inference that the

blanket was part of defendant’s laundry: “There were not a lot of other things in the vehicle.” If

the vehicle was primarily carrying what defendant does not dispute was laundry it stands to

reason the blanket was also laundry. Similarly, the finding that the blanket “had been put there

recently” is supported by defendant’s admission he was just coming from the laundromat and the

reasonable inference from the facts and circumstances that the blanket was part of that laundry.

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¶ 43 Furthermore, Officer Gallardo testified about the blanket that, “It looks like it was just

thrown into the car seat.” That, and the trial court’s own observations, are sufficient to

reasonably infer that “[a] blanket had been loosely covering the gun.” One may reasonably infer

from common experience that a “partially folded” blanket that is “just thrown over” a car seat, as

Officer Gallardo testified, as opposed to being pressed down or tucked in, would rest loosely

over the car seat. One may also infer from common experience that regardless how large or

heavy a blanket is, if it is just “thrown over” a car seat it would not press down on an object on

the seat portion of the car seat of its own weight. Similarly here, because it is reasonable to infer

that the blanket sat “loosely” over the car seat, a heavy object like a firearm (one may reasonably

infer the approximate mass of a handgun) could fall upon a sudden stop of the vehicle. In this

instance, however, whether that inference is reasonable from the evidence or not, we find

defendant was not prejudiced by it and, therefore, reversal is not required. Petrov, 2023 IL App

(1st) 160498, ¶¶ 54-55. Defendant argues the trial court used this inference to infer the handgun

had been placed there recently—because it had not fallen—and because it had been placed there

recently, defendant knew about it. We disagree. Although the trial court did find that “[i]t had

been placed there recently, as it would have fallen from its position with a sudden stop of the

vehicle,” this was not the trial court’s reason for finding defendant knew the gun was in the car

within his reach. The trial court wrote, “It would have been impossible to place the laundry

where it was, and not realize a gun was on top of the car seat.”

¶ 44 We find the trial court found knowledge based on the findings (both from the evidence

and reasonable inferences therefrom) that the handgun would have been visible on the seat of the

car seat before laundry was placed in the car, the blanket was part of the laundry, and defendant

placed the laundry—thereby covering the handgun—in the car recently, as he was just coming

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from the laundromat. Finally, the trial court saw the gun, heard a description of the gun, and saw

the car. These facts are undisputed. The trial court’s conclusions about the size of the handgun

and the car were not based on facts not in evidence but on what it heard and saw.

¶ 45 The trial court did not base its judgment on facts not in evidence. “Finding no error on

this contention, we find no plain error or ineffectiveness of counsel.” People v. Collins, 2021 IL

App (1st) 180768, ¶ 38. Defendant’s argument he was denied a fair trial on this basis fails.

¶ 46 Next, defendant argues the trial court “crossed the line between trier of fact and advocate

for the State” when the court questioned Officer Gallardo.

“A criminal defendant who elects to be tried in a bench trial is entitled to

the same fair, patient, and impartial consideration he would be entitled to by a

jury composed of fair, impartial, careful and considerate jurors. [Citation.] *** A

trial judge’s questioning of a witness must be done in a fair and impartial manner,

without showing bias or prejudice against either party. [Citation.]” (Internal

quotation marks omitted.) People v. Wesley, 18 Ill. 2d 138, 155 (1959).

¶ 47 This court has explained the trial court’s role in this context: “The trial court has the right

to question witnesses in order to elicit the truth or to bring enlightenment on material issues

which seem obscure.” Wesley, 18 Ill. 2d at 155. Further,

“Illinois courts have recognized that the proper function of a judge

includes a duty to ensure that justice is done in criminal trials when, for instance,

a certain fact has not been developed or a certain line of inquiry has not been

pursued, as long as the judge does not in any way become an advocate for one

side or the other. [Citations.]

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To this end, a trial court may, sua sponte, call its own witnesses and

question witnesses called by either party. [Citation.] What a trial court may not do

is assume the role of an advocate. [Citation.] But, a suggestion that the State

present evidence proving essential elements of an offense is not an assumption of

the role of a prosecutor. [Citation.]” People v. Evans, 2017 IL App (1st) 150091,

¶¶ 24-25 (citing, inter alia, People v. Lurie, 276 Ill. 630, 641 (1917)).

Moreover, “[i]n a bench trial, it is the function of the trial court to determine the

credibility of witnesses [and] weigh the evidence ***. The trial court is ‘free to accept or

reject as much or as little as it pleases of a witness’ testimony.’ [Citation.]” Petrov, 2023

IL App (1st) 160498, ¶¶ 54-55.

¶ 48 Defendant also cites Lurie and argues there was no evidence “that a fact had not been

developed or a line of inquiry not pursued” to permit the trial court to interpose, and the court

assumed the role of advocate when the court questioned Officer Gallardo and “used Gallardo’s

answers to support the State’s case.” Defendant argues that the court assumed the function of

advocate and favored the State because the court used facts obtained from its own questioning to

find defendant guilty—specifically, the caliber of the handgun and the size of the car. Defendant

argues that evidence of the fact the trial court assumed the role of prosecutor lies in the fact that

Officer Gallardo could only describe the car as a black Chevy but the court repeatedly described

the car as “small.” Defendant argues the trial court used the size of the car to find the gun was

within defendant’s reach. Defendant does not specify how the caliber of the gun entered into the

court’s decision making and only notes that the court found the gun to be “large and distinctive”

based the court’s own questioning of Gallardo.

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¶ 49 We find that the trial court “did not abandon its role as neutral arbiter and assume the role

of a prosecutor.” Evans, 2017 IL App (1st) 150091, ¶ 26. The trial court’s questioning was not

extensive. Wesley, 18 Ill. 2d at 155 (“A trial judge’s questioning ‘should rarely be extensive,’

although an ‘extensive examination may be justified if the court has reason to believe that a

witness is not telling the truth.’ ”). We disagree with defendant’s claim that there was no fact that

had not been developed when the trial court questioned Gallardo. The exact location where the

gun was recovered had not been developed when the court asked Gallardo, “Where did you

recover it?” The location of the gun was clearly an important fact that needed to be developed.

“And, as this was a bench trial, the court possessed wide latitude, the question related to its fact-

finding role, and the risk of prejudice to [defendant] was low.” Evans, 2017 IL App (1st) 150091,

¶ 26 (holding trial court did not abandon its role as neutral arbiter). The risk of prejudice to

defendant from the question itself was low because the answer may have helped defendant. (For

example, if Officer Gallardo had testified the gun was on top of the backrest defendant might

have used that testimony to argue the gun was not in his reach—although we express no opinion

about the efficacy of that argument.)

¶ 50 “To show prejudice in a bench trial, the defendant must show that ‘the tenor of the

court’s questioning indicates the court has prejudged the outcome before hearing all of the

evidence.’ [Citation.]” People v. Jackson, 409 Ill. App. 3d 631, 646-47 (2011). There is nothing

to indicate the trial court had prejudged the outcome. The question was a direct request for a

relevant fact, the answer to which may have benefitted either party. In fact, defendant uses his

own interpretation of the evidence of the location of the gun to bolster his argument the trial

court’s findings are not supported by evidence in the record. We find that this question was

asked “in a fair and impartial manner, without in any way showing bias for or prejudice against

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either party to the litigation.” Lurie, 276 Ill. at 640. Furthermore, in this case, like in Evans, the

trial court “did not decide *** that the State needed to present more evidence and then order the

State to produce it. Rather, the trial court [elicited] evidence before argument.” Id. ¶ 30.

Therefore, in this case, the questioning was a “proper function of a judge.” Evans, 2017 IL App

(1st) 150091, ¶ 24 (citing , inter alia, Lurie, 276 Ill. at 641).

¶ 51 Nor had the type of gun and car been developed when the trial court recalled Officer

Gallardo to the stand. Regardless, the trial court’s questioning about the caliber of the gun and

the type of car were “not necessary to prove the State’s case.” Id. ¶ 30. For whatever purpose it

may or may not have been used, the State elicited sufficient evidence for the trial court to find

the handgun was “large and distinctive.” The State asked Officer Gallardo, referring to the

handgun, “What attachments did it have?” Officer Gallardo responded, “It has an extended

magazine and a laser sight.” That evidence elicited by the State is sufficient to permit the trial

court to find the gun “large” (it had an extended magazine) and “distinctive” (it had a laser

sight). As for the size of the car, any testimony elicited by the trial court touching on the size of

the car was not necessary to prove whether the gun was within defendant’s reach. The State

asked, “Was the firearm within arm’s reach of where the defendant had been seated?” Officer

Gallardo responded, “Yes.”

¶ 52 Defendant has failed to establish prejudice from the trial court’s questioning of Officer

Gallardo. We find the trial court did not abuse its discretion.

¶ 53 SUFFICIENCY OF THE EVIDENCE

¶ 54 Defendant argues the State failed to prove beyond a reasonable doubt that defendant had

constructive possession of the handgun. “To prove [defendant] guilty of armed habitual criminal,

the State had to show two elements: (i) [defendant] possessed a firearm and (ii) possession was

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after having been convicted of two qualifying offenses.” People v. Hudson, 2023 IL App (1st)

192519, ¶ 45. Defendant only disputes whether the State proved possession. In the absence of

actual possession, the State must seek “to prove constructive possession—that [defendant] had

knowledge of the gun’s presence and ‘immediate and exclusive’ control over the area where

officers found it. [Citation.]” Id., People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (“When a

defendant is not found in actual possession, the State must prove constructive possession.”).

Defendant argues the State failed to prove that defendant constructively possessed the handgun

because the gun was not visible, defendant did not make any gestures or movements toward the

backseat of the car, no physical evidence links him to the handgun, and defendant made no

incriminating statements.

¶ 55 “A person has actual possession when he has immediate and exclusive control over an

item; actual possession does not require ‘present personal touching’ of that item. [Citation.] A

person has constructive possession when he lacks actual possession but has the intent and

capability to exercise control over the item. [Citation.]” People v. Davis, 2023 IL App (1st)

231856, ¶ 22. “The control may be exercised directly or through another person. [Citations.] ‘[I]f

two or more persons share [the] immediate and exclusive control or share the intention and [the]

power to exercise control’ over a thing, ‘then each [one] has possession.’ [Citation.]” People v.

Williams, 2020 IL App (1st) 163417, ¶ 66.

¶ 56 “[I]t is not the function of the reviewing court to retry the defendant. [Citation.] *** The

credibility of the witnesses, the weight to be given their testimony, and the resolution of any

conflicts in the evidence are within the province of the trier of fact, and a reviewing court will

not substitute its judgment for that of the trier of fact on these matters. [Citation.]” Rios, 2022 IL

App (1st) 171509, ¶ 48. “We have recognized that constructive possession often involves

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‘entirely circumstantial’ evidence [citation].” Hudson, 2023 IL App (1st) 192519. ¶ 45.

Circumstantial evidence is sufficient to sustain a criminal conviction. Id. ¶ 49.

“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. [Citation.] The trier of fact need not be satisfied

beyond a reasonable doubt as to each link in the chain of circumstances; it is

sufficient if all of the evidence taken together satisfies the trier of fact beyond a

reasonable doubt of the defendant’s guilt. [Citation.] To prove guilt beyond a

reasonable doubt does not mean that a [trier of fact] must disregard the inferences

that flow normally from the evidence before it.” Rios, 2022 IL App (1st) 171509,

¶ 49.

Nor is the trier of fact “required to *** seek all possible explanations consistent with innocence

and elevate them to reasonable doubt. [Citation.] In other words, the State need not disprove or

rule out all possible factual scenarios in order to sustain its burden.” People v. Hines, 2021 IL

App (1st) 191378, ¶ 36. “We will not reverse the *** verdict for lack of evidence unless the

evidence is ‘so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the

defendant’s guilt.’ [Citation.]” Spears, 2024 IL App (1st) 181491, ¶ 194.

¶ 57 In his opening brief, defendant did not make any specific arguments that the State failed

to prove he had “immediate and exclusive control over the area where the firearm is found.”

Although the State does not argue forfeiture, the State does assert, repeatedly, that defendant is

not challenging the “control” factor for constructive possession. Defendant refutes this

contention, arguing in reply that he did argue the State failed to prove “control” because

defendant challenged the sufficiency of the evidence to prove constructive possession in general,

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and defendant cited cases in which the court found a lack of “control.” The State is correct that

defendant’s opening brief did not argue that the State failed to prove defendant had control over

the area where the firearm is found.

“Arguments raised for the first time in a reply brief need not be addressed

by this court. [Citation.] Besides maintaining consistency and uniformity,

avoiding confusion, and preventing gamesmanship, Rule 341(h)(7) prevents

unfairness to an adverse party who would have no notice of the issue or an

opportunity to provide a response. [Where an] issue could have been raised in the

principle brief but was not, we decline to entertain it.” People v. Pittman, 2014 IL

App (1st) 123499, ¶ 38 (citing Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013)).

¶ 58 Although the issue of control is not properly before this court, we find defendant’s newly

raised arguments that the State failed to prove control unpersuasive. 1

¶ 59 Defendant argues the State failed to prove control because he did not own the vehicle and

“his status as the driver did not establish his possession of the entire contents of the vehicle.”

“[W]e agree with *** defendant that ownership is not dispositive,” but [it] may be relevant or

“probative of the issue of control.” People v. Bogan, 2017 IL App (3d) 150156, ¶ 32. Ownership

is not a necessary element of control for purposes of constructive possession and plays no part in

this case. However, “direct evidence of a defendant driving a vehicle is surely sufficient evidence

of control.” Bogan, 2017 IL App (3d) 150156 ¶ 42. Defendant’s new argument the State failed

to prove the “control” element of constructive possession fails. Defendant is correct only in that

1 See People v. Berg, 39 Ill. App. 3d 455, 457 (1976) (where the State raised the issue of abandonment for the first time in its reply brief, the court found the issue was not properly before the court but, nonetheless found the State failed to carry its burden of proving the incriminating property was abandoned), vacated on other grounds, People v. Berg, 67 Ill. 2d 65 (1977). - 24 - 1-23-1008

“his status as the driver did not establish his [knowing] possession of the entire contents of the

vehicle.”

¶ 60 “[K]nowledge may often be inferred from one’s control over an area. [Citation.] Such an

inference is certainly not always appropriate.” Bogan, 2017 IL App (3d) 150156, ¶ 45. “While

any sort of control will satisfy the first component of constructive possession, *** only ‘regular,

ongoing control’ may give rise to an inference of knowledge.” (Emphasis added.) Id. In the

absence of “regular, ongoing control” the State must present other evidence of knowledge, which

may include “circumstantial evidence from which [the] defendant’s knowledge could be

inferred.” Hampton, 358 Ill. App. 3d at 1033. The State does not have to prove the handgun was

in plain view at all times, as long as defendant had an opportunity to observe it. See People v.

Bailey, 333 Ill. App. 3d 888, 892 (2002). For the reasons stated below, we find the State did

present evidence of knowledge other than defendant’s status as the driver.

¶ 61 Defendant also argues that the trial court misplaced its reliance on Spears, 2022 IL App

(1st) 201290-U, because Spears is distinguishable in that, in Spears, the defendant was alone in

the car, fled from police, and the gun was hidden in a way that called attention to its presence. In

Spears, the court found that the defendant had control of the vehicle because the defendant “was

its driver and sole occupant.” Spears, 2022 IL App (1st) 201290-U, ¶ 35. It is clear from Spears

that it did not only rely on the fact the defendant was alone in the car but instead, the fact the

defendant was alone in the car was just additional “evidence for a rational trier of fact to find that

[the] defendant controlled the vehicle from which the contraband was discovered.” Id. This

conclusion is proven by the Spears’ court citation in support of this finding to People v.

McNeely, 99 Ill. App. 3d 1021, 1023-24 (1985), for the proposition that “ ‘because the defendant

was the driver of the vehicle, and because he had merely a lone passenger, defendant had

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immediate and exclusive control of the inside of the automobile’ for purposes of constructive

possession of methaqualone recovered from under the front passenger’s seat” (emphasis added),

and People v. Janis, 56 Ill. App. 3d 160, 163-65 (1977) (“The defendant had immediate and

exclusive control over the area in which the officer found the gun. The presence of the other men

in the car does not negate defendant’s constructive possession of the concealed weapon.”)

Spears, 2022 IL App (1st) 201290-U, ¶ 35.

¶ 62 Additionally, the fact the defendant in Spears fled was a relevant, but not a necessary,

fact in support of the inference of the defendant’s knowledge of the presence of the handgun. See

id. ¶ 29 (introducing evidence of defendant’s flight, along with other evidence, by stating “[a]lso

supporting the inference of defendant’s knowledge”). The Spears court did rely, in part, on the

fact that after manipulating “the compartment containing the firearm, [it was] immediately

visible” and “was located so close to the driver’s area and was readily accessible upon

‘manipulation’ [to] suggest the firearm was intentionally placed there to be readily accessible to

the driver” to find that the evidence was sufficient to prove the defendant knew the firearm was

in the vehicle. Id. ¶ 38. Nothing in Spears suggests that its factual determinations are necessary

factors to find knowledge of the presence of contraband. The Spears court merely applied the

facts of the case before it to the question of whether “the contraband [was] located in a place

over which the defendant had ‘regular ongoing control’ and [was] ‘an item that human

experience teaches is rarely, if ever, found unaccountably in such a place.’ [Citation.]” (id. ¶ 37)

to find that defendant knew the firearm was in the vehicle. The facts of this case satisfy those

standards. Defendant’s attempt to distinguish Spears is unavailing.

¶ 63 Turning to the question of defendant’s knowledge, and control, in Bailey, 333 Ill. App. 3d

888, a jury found the defendant guilty of aggravated unlawful use of a weapon where the

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defendant was a passenger in a car and after an inventory search of the car police recovered a

handgun beneath the defendant’s seat. Bailey, 333 Ill. App. 3d at 890. Before trial, the defendant

alternatively told police the driver of the vehicle had shown the defendant the gun in the

defendant’s residence, after which the defendant placed the gun on a table, and that the driver

had shown the defendant the gun in the car after which the defendant returned it and exited the

car. Id. At trial, the defendant testified he had no knowledge of the gun in the vehicle and denied

making any statements about the driver showing the defendant the gun. Id.

¶ 64 The defendant in Bailey argued that the State failed to prove the defendant had

knowledge of the gun in the vehicle. Id. at 891. The court held that it was incumbent on the State

to present some circumstantial evidence of knowledge of the presence of the weapon. Id. at 891.

The court stated that “[a] defendant’s mere presence in a car, without more, is not evidence that

he knows a weapon is in the car.” Id. at 891 (citing People v. Davis, 50 Ill. App. 3d 163, 168

(1977)). The court found that some factors from which knowledge could be inferred include “(1)

the visibility of the weapon from defendant’s position in the car, (2) the period of time in which

the defendant had an opportunity to observe the weapon, (3) any gestures by the defendant

indicating an effort to retrieve or hide the weapon, and (4) the size of the weapon.” Id. at 891-92.

But the Bailey court also found that “[c]ourts should also consider any other relevant

circumstantial evidence of knowledge, including whether the defendant had a possessory or

ownership interest in the weapon or in the automobile in which the weapon was found.” Id. at

892 (citing Davis, 50 Ill. App. 3d at 168). In Bailey, the State “failed to introduce any evidence

that [the defendant] had knowledge of the weapon’s presence in the vehicle in which the

defendant was the passenger.” Id. at 892.

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¶ 65 Subsequently, in People v. Robinson, the defendant argued that “his conviction must be

reversed where there was nothing connecting him to [drugs recovered from ‘the pouch behind

the driver’s seat of the car in which he was a passenger’] aside from his mere presence in the car,

which [the defendant] maintains is insufficient as a matter of law.” People v. Robinson, 2024 IL

App (1st) 230232-U, ¶ 36. The Robinson court found that “[w]hen there is no direct evidence of

knowledge of contraband in a car, reviewing courts look to four factors, derived from People v.

Davis, 50 Ill. App. 3d 163 (1977), and cited in People v. Bailey, 333 Ill. App. 3d 888 (2002), to

determine whether the State presented sufficient circumstantial evidence from which the

defendant’s knowledge may reasonably be inferred.” Id. ¶ 39. The court listed the “Bailey

factors” and further stated that the “State cannot rely on a defendant’s mere presence to establish

knowledge that a controlled substance is in a vehicle.” Id. (citing People v. Horn, 2021 IL App

(2d) 190190, ¶ 40, People v. Ingram, 389 Ill. App. 3d 897, 900 (2009)). The Robinson court,

relying exclusively on the “Bailey factors,” found that the State “failed to present sufficient

evidence that [the] defendant had knowledge of the presence of the bag of drugs as to establish

constructive possession.” Id. ¶ 44 (“Having considered the Bailey factors, we conclude that in

this case, the State failed to present sufficient evidence that defendant had knowledge of the

presence of the bag of drugs so as to establish constructive possession.”).

¶ 66 In this case, defendant argues that applying the “Bailey factors” to this case

“demonstrates that the State failed to prove that [defendant] knowingly possessed the gun the

police recovered from the back seat of [defendant’s] sister’s car. Defendant argues (1) the

handgun was not visible to defendant—and in support thereof defendant argues the State failed

to prove the blanket covering the gun was part of defendant’s laundry; (2) there is no evidence as

to how long the gun was in the car and therefore no evidence that defendant had any opportunity

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to observe the handgun; (3) there was no evidence of defendant attempting to retrieve or hide the

handgun, nor that defendant made any furtive movements toward the back seat; (4) the size of

the gun—“ ‘small’ enough to sit on the child’s car seat completely out of sight—does not support

the conclusion that [defendant] was aware of its presence;” and (5) any additional factors of

knowledge do not support his conviction where (i) there is a lack of physical evidence tying

defendant to the handgun, (ii) defendant did not try to flee, and (iii) defendant cooperated with

police and never made an admission of guilt or otherwise display a guilty conscious. Defendant

argues that under Bailey, his mere presence in the car, which he argues is the only fact the State

proved, is not enough to prove knowledge. Defendant concludes “the State failed to establish

constructive possession beyond a reasonable doubt,” and this court should reverse defendant’s

AHC conviction outright.

¶ 67 The State responds defendant’s status as the driver, time in the car, and the location and

size of the handgun prove defendant had knowledge and control of the firearm. The State argues

that defendant was not “merely present” in the vehicle but was the driver, as the driver defendant

had control over the vehicle’s contents, and that control raised the reasonable inference

defendant had knowledge of the firearm notwithstanding the passenger’s access to the firearm.

The State also argues that defendant had control over the firearm because defendant was the

driver and because of the location of the handgun—within arm’s reach where “firearms are not

normally found.” The State argues that defendant’s control “over the vehicle’s contents generates

a reasonable inference of his knowing possession of the weapon.” The State disputes defendant’s

analysis of the Bailey factors, arguing (regarding the first factor) that the evidence raises a

reasonable inference that the blanket covering the handgun was part of the laundry defendant

moved in and out of the vehicle, and the firearm, which was easily identifiable as such, would

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have either been visible when defendant placed the blanket over it or that defendant placed it

there himself. As to the remaining factors, the State argues it did not have to elicit evidence as to

every factor to establish defendant’s constructive possession of the handgun because “Bailey’s

list is not exhaustive, and a finding of knowledge does not require that every factor on the list be

met.” Rather, the State argues, the circumstantial evidence “all supported the [trial] court’s guilty

verdict.”

¶ 68 First, we agree with the State that it was not required to produce evidence of every

“Bailey factor” to prove defendant constructively possessed the handgun. As the State notes,

even the Bailey court stated that “[c]ourts should also consider any other relevant circumstantial

evidence of knowledge ***.” Bailey, 333 Ill. App. 3d at 892. This court has recognized that

“[t]he Bailey factors do not *** constitute the exclusive means for determining whether a vehicle

occupant knew that contraband was present” ((emphasis in original) Spears, 2022 IL App (1st)

201290-U, ¶ 45, see also People v. Davis, 2016 IL App (1st) 141787-U, ¶ 19 (“[t]he court’s list

of factors was not exclusive”)), and that we are not required to apply them in every case (see

People v. Silva, 2015 IL App (1st) 140695-U, ¶ 19 (“the [Bailey] court’s list of factors was not

exclusive. [Citation.] Given the different circumstances in the current case, we believe the factors

considered in Bailey are less relevant here.”)). The foregoing notwithstanding, “the period of

time in which [defendant] had an opportunity to observe the weapon” (Bailey, 333 Ill. App. 3d at

892 (listing factors)) weighs in favor of inferring that defendant had knowledge of the handgun.

The evidence was sufficient to produce reasonable inferences that defendant placed the blanket

in the car, and thus over the handgun visible on the seat of the car seat, as part of the laundry

defendant admitted he had just done. A reasonable trier of fact could infer defendant had the

opportunity to observe the weapon when putting the laundry in the car to go to the laundromat,

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taking it out to do the laundry, and a third time putting the laundry back in the car. Any would

have provided an opportunity to observe the handgun on the car seat.

¶ 69 Second, while defendant is correct that his “mere presence” in the vehicle, alone, is

insufficient to establish his knowledge of the presence of the firearm (People v. Cook, 2021 IL

App (3d) 190243, ¶ 25 (“A defendant’s mere presence in a car, without more, is not evidence

that he knows a weapon is in the car.”)), it is also true that defendant’s status as the driver is

sufficient to establish that defendant had immediate and exclusive control over the area where

the weapon was found (uncased, covered by a blanket, on the seat of a car seat, in the middle of

the backseat of the vehicle defendant was driving). Bogan, 2017 IL App (3d) 150156, ¶ 42

(“direct evidence of a defendant driving a vehicle is surely sufficient evidence of control”), see

also People v. White, 2024 IL App (1st) 221373-U, ¶ 28 (quoting Bogan). And “[p]roof that a

defendant had control over the premises where the contraband is found gives rise to an inference

of knowledge and possession of that contraband” (Jackson, 2019 IL App (1st) 161745, ¶ 27).

¶ 70 In Hampton, the court held that for an inference to arise that the defendant had

knowledge of a handgun within the vehicle’s glove compartment, “the State had to demonstrate

that [the] defendant had regular, ongoing control over the vehicle that he was driving.” People v.

Hampton, 358 Ill. App. 3d 1029, 1032 (2005). Alternatively, the State must adduce “other

evidence establishing knowledge of the weapon” which may include circumstantial evidence.

People v. Ingram, 389 Ill. App. 3d 897, 900 (2009) (“knowledge may, and most often must, be

proved by circumstantial evidence.”). There was no evidence and we do not find that defendant

had “regular, ongoing control” of the vehicle, but the handgun, even covered by the blanket, was

“an item that human experience teaches is rarely, if ever, found unaccountably in such a place.”

Hampton, 358 Ill. App. 3d at 1032. Nonetheless, the evidence established more than defendant’s

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“mere presence in the vehicle.” The State adduced additional circumstantial evidence of

defendant’s knowledge of the handgun.

¶ 71 The handgun was found in the middle of the backseat on the seat portion of the car seat

and would have been in plain view if it were not covered by the blanket; and as previously

discussed, the evidence permitted the reasonable inference that the blanket found covering the

handgun was part of the laundry, that defendant placed the laundry in the car either before or

after leaving the laundromat, and that defendant would have seen the handgun on the car seat

when defendant put the laundry in the car (or, as Officer Gallardo testified, tossed the blanket

over the car seat). We do not need to find that defendant put the handgun on the car seat or that

defendant intentionally tried to hide the gun with the blanket (although both are reasonable

inferences from the evidence). All that is required to establish defendant’s constructive

possession of the handgun is that defendant “had knowledge of the presence of the contraband,

and had control over the area where the contraband was found.” Bogan, 2017 IL App (3d)

150156, ¶ 27 (citing People v. Hunter, 2013 IL 114100, ¶ 19, Hampton, 358 Ill. App. 3d at

1031). It is also irrelevant that defendant’s passenger had an equal ability to exercise control over

the firearm or may have also known of its presence. “Constructive possession is not diminished

by evidence of others’ access to contraband.” Jackson, 2019 IL App (1st) 161745, ¶ 27. It is

“settled law that constructive possession of contraband can be established even where possession

is joint or others have access to the area where the contraband is recovered.” People v.

Maldonado, 2015 IL App (1st) 131874, ¶ 43. The State proved that defendant had immediate and

exclusive control over the area where officers found the handgun and knowledge of the gun’s

presence in the vehicle. Hudson, 2023 IL App (1st) 192519, ¶ 45, Spencer, 2012 IL App (1st)

102094, ¶ 17. The evidence admitted at trial and the reasonable inferences therefrom were

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sufficient to permit the trier of fact to find beyond a reasonable doubt that defendant

constructively possessed the handgun.

¶ 72 CONSTITUTIONALITY OF AHC UNDER THE SECOND AMENDMENT

¶ 73 Defendant argues the AHC statute is unconstitutional on its face and as applied to

defendant because it violates the second amendment to the United State Constitution. A facial

challenge requires a showing that the statute in question is unconstitutional under any set of

facts. People v. Kelley, 2024 IL App (1st) 230569, ¶ 12. A conviction based on a facially

unconstitutional statute is void (In re N.G., 2018 IL 121939, ¶ 67), and the issue of the

constitutionality of the statute may be raised by a defendant for the first time on appeal (People

v. Neely, 2013 IL App (1st) 120043, ¶ 8).

¶ 74 “[A]n as-applied challenge requires a showing that the statute is unconstitutional as it

applies to the specific facts and circumstances of the challenging party.” Kelley, 2024 IL App

(1st) 230569, ¶ 12. “A facial challenge fails if we can conceive of any set of circumstances in

which the statute could be validly applied—including as applied to the very party before us.” In

re Jawan S., 2018 IL App (1st) 172955, ¶ 48 (citing People v. Garvin, 219 Ill. 2d 104, 125

(2006) (“if as-applied challenge fails, facial challenge necessarily fails”)).

“Because facial and as-applied constitutional challenges are distinct

actions, it is not unreasonable to treat the two types of challenges differently ***.

By definition, an as-applied constitutional challenge is dependent on the particular

circumstances and facts of the individual defendant or petitioner. Therefore, it is

paramount that the record be sufficiently developed in terms of those facts and

circumstances for purposes of appellate review.” People v. Holman, 2017 IL

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120655, ¶¶ 29-30, overruled on other grounds by People v. Wilson, 2023 IL

127666, ¶ 42.

¶ 75 In Travis, the court held that it could review an as applied challenge on appeal if the

record was sufficiently developed. The court found that the “[d]efendant concedes he did not

raise the issue previously but argues the record is sufficiently developed for us to review his

claim, and upon review of the record, we agree. See Holman, 2017 IL 120655, ¶¶ 29-32,

overruled on other grounds by Wilson, 2023 IL 127666, ¶ 42 (finding where all relevant facts

and circumstances are contained in the record, a claim may be raised and reviewed on appeal).”

People v. Travis, 2024 IL App (3d) 230113, ¶ 17. Similarly, here, defendant’s criminal history is

undisputed and it is unclear how further investigation into whether defendant is a “violent” felon

“would aid us in determining whether the felon dispossession statutes have been constitutionally

applied to defendant” where the second amendment, article I, section 22, nor the AHC statute

draw any distinction between “violent” felonies and “nonviolent” felonies. See id. ¶ 18.

¶ 76 Although the State argues defendant forfeited his as-applied challenge by failing to raise

it in the trial court, we find that the record is sufficiently developed for this court to address the

challenge. Id. ¶ 17. Therefore, we begin with defendant’s as-applied challenge because if the

statute is constitutional as applied to defendant then there is necessarily a set of facts under

which the statute is constitutional. See People v. Muhammad, 2023 IL App (1st) 230121-U, ¶ 14.

¶ 77 Defendant argues the AHC statute violates the second amendment under the test

announced by the United States Supreme Court in New York Rifle & Pistol Ass’n, Inc., v. Bruen,

597 U.S. 1 (2022). In Bruen, the Supreme Court announced a two-part test to determine whether

statutes that regulate the right to keep and bear arms violate the second amendment. Bruen, 597

U.S. at 24. Post-Bruen, “the standard for applying the Second Amendment is as follows: When

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the Second Amendment’s plain text covers an individual’s conduct, the Constitution

presumptively protects that conduct. The government must then justify its regulation by

demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” Id.

To determine whether a regulation is “consistent with the Nation’s historical tradition of firearm

regulation,”

“[a] court must ascertain whether the new law is ‘relevantly similar’ to

laws that our tradition is understood to permit, ‘apply[ing] faithfully the balance

struck by the founding generation to modern circumstances.’ [Citation.] ***

Why and how the regulation burdens the right are central to this inquiry.

[Citation.] For example, if laws at the founding regulated firearm use to address

particular problems, that will be a strong indicator that contemporary laws

imposing similar restrictions for similar reasons fall within a permissible category

of regulations. Even when a law regulates arms-bearing for a permissible reason,

though, it may not be compatible with the right if it does so to an extent beyond

what was done at the founding. And when a challenged regulation does not

precisely match its historical precursors, ‘it still may be analogous enough to pass

constitutional muster.’ [Citation.] The law must comport with the principles

underlying the Second Amendment, but it need not be a ‘dead ringer’ or a

‘historical twin.’ [Citation.]” United States v. Rahimi, 144 S. Ct. 1889, 1898

(2024) (explaining Bruen).

¶ 78 The first step of the Bruen test, whether the second amendment’s “plain text covers an

individual’s conduct,” requires “a ‘textual analysis’ focused on the ‘ “normal and ordinary” ’

meaning of the Second Amendment’s language.” Bruen, 597 U.S. at 20 (quoting District of

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Columbia v. Heller, 554 U.S. 570, 576-77 (2008)). That analysis by the Supreme Court found

that the second amendment protects “law-abiding citizens.” Heller, 554 U.S. at 625 (“For most

of our history, the Bill of Rights was not thought applicable to the States, and the Federal

Government did not significantly regulate the possession of firearms by law-abiding citizens.”),

see also Heller, 554 U.S. at 644 (Stevens, J., joined by Souter, J., Ginsburg, J., and Breyer, J.,

dissenting) (“when it finally drills down on the substantive meaning of the Second Amendment,

the Court limits the protected class to ‘law-abiding, responsible citizens’ ”), Bruen, 597 U.S. at

78 (Alito, J., concurring) (“Heller correctly recognized that the Second Amendment codifies the

right of ordinary law-abiding Americans to protect themselves from lethal violence by

possessing and, if necessary, using a gun.”).

¶ 79 Bruen did not disturb that conclusion. Bruen, 597 U.S. at 72 (Alito, J., concurring) (“Our

holding decides nothing about who may lawfully possess a firearm or the requirements that must

be met to buy a gun. Nor does it decide anything about the kinds of weapons that people may

possess. Nor have we disturbed anything that we said in Heller or McDonald v. Chicago, 561

U.S. 742, about restrictions that may be imposed on the possession or carrying of guns.”). In

Heller and McDonald the Supreme Court held that states may restrict felons from possessing

firearms. Heller, 554 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on

longstanding prohibitions on the possession of firearms by felons”), McDonald, 561 U.S. at 786

(“We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory

measures as ‘prohibitions on the possession of firearms by felons ***.’ [Citation.] We repeat

those assurances here.”).

¶ 80 In this case defendant argues that there is no historical analogue for a permanent, status-

based revocation of the right to keep and bear arms applicable to felons and therefore the AHC

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statute is not consistent with the Nation’s historical tradition of firearm regulation. This is, of

course, an argument that the AHC statute does not pass constitutional muster under the second

step of the Bruen analysis. Defendant admits that “[t]o evaluate the constitutionality of Illinois’

[AHC] statute this Court must answer two questions: (1) whether [defendant] falls within the

Second Amendment’s protections at all, and (2) if he does, whether the historical record justifies

a permanent ban on his ability to possess any firearm at any time.” (Emphasis added.) As for the

first question, defendant argues he is protected by the second amendment because it applies to

“all Americans.” Defendant cites People v. Brooks, 2023 IL App (1st) 200435, for the

proposition that a felon’s possession of a firearm falls under the conduct protected by the second

amendment because, defendant argues, pursuant to Brooks, “a felon’s status is irrelevant under

the first step of the Bruen test.” Defendant essentially argues that Brooks confirms that Bruen

abrogated any presumption that barring felons from possessing firearms is permissible under the

second amendment because Bruen and Brooks place the focus of the first step of the analysis on

conduct—the conduct of possessing a firearm—and not status—in this case the status of being a

felon.

¶ 81 We reject defendant’s assertion that his conduct is protected by the second amendment

and we disagree with the suggestion that a party’s status as a felon is “irrelevant at this stage of

the analysis.” Brooks, 2023 IL App (1st) 200435, ¶ 89. The Brooks court found that the conduct

at issue was “the defendant’s possession of the firearm after having been twice convicted under

any of the myriad of enumerated felonies [in the AHC statute], which in this case, both happen to

be nonviolent.” Brooks, 2023 IL App (1st) 200435, ¶ 86. Nonetheless, the court found that

“[u]nder Bruen, the first step asks only whether ‘the Second Amendment’s plain

text covers an individual’s conduct.’ [Citation.] This step does not contemplate

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the actor or the subject. [Citations.] Accordingly, the defendant’s status as a felon

is irrelevant at this stage of the analysis. Instead, the defendant’s possession of a

firearm is ‘presumptively constitutional.’ [Citation.]” Id.

We disagree.

¶ 82 Under Bruen, the first step looks at the conduct actually being regulated:

“At the first step, the government may justify its regulation by

‘establish[ing] that the challenged law regulates activity falling outside the scope

of the right as originally understood.’ [Citations.] The Courts of Appeals then

ascertain the original scope of the right based on its historical meaning.

[Citation.]” (Emphases added.) Bruen, 597 U.S. at 18.

This court has recognized that “[f]irst, we must identify the conduct at issue to determine

whether that conduct falls under the ‘plain text’ of the second amendment.” People v. Hatcher,

2024 IL App (1st) 220455, ¶ 53. The conduct at issue under the AHC statute is not, broadly and

generally, possession of a firearm. If it was, it would probably be unconstitutional. Bruen, 597

U.S. at 71 (“New York’s proper-cause requirement violates the Fourteenth Amendment in that it

prevents law-abiding citizens with ordinary self-defense needs from exercising their right to keep

and bear arms.”). Rather, the conduct at issue under the AHC statute is the possession of firearms

by felons. “If the government can prove that the regulated conduct falls beyond the

Amendment’s original scope, ‘then the analysis can stop there; the regulated activity is

categorically unprotected.’ [Citation.]” (Emphases added.) Bruen, 597 U.S. at 18.

¶ 83 In Bruen, the Supreme Court’s first word was that it had “recognized that the Second and

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

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handgun in the home for self-defense.” Bruen, 597 U.S. at 8-9 (citing Heller, 554 U.S. 570,

McDonald, 561 U.S. 742).

“Though the Bruen Court did not define ‘law-abiding citizen,’ previous

Supreme Court precedent identifies categories of people who have long been

lawfully prevented from bearing arms. In District of Columbia v. Heller, the

Supreme Court cautioned that

‘nothing in [its] opinion should be taken to 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 such as schools and government buildings, or laws

imposing conditions and qualifications on the commercial sale of

arms.’ District of Columbia v. Heller, 554 U.S. 570, 626-27

(2008).

There is little to expound here: by its plain language, the Supreme

Court explicitly sanctioned the prohibition on the possession of firearms by

felons.” Kelley, 2024 IL App (1st) 230569, ¶ 17.

¶ 84 Further, the second amendment “does not distinguish between violent felonies and non-

violent felonies.” United States v. Sloat, 3:22-CR-30017-DWD, 2023 WL 8455112, at *1 (S.D.

Ill. Dec. 6, 2023). In People v. Travis, 2024 IL App (3d) 230113, ¶ 37, the court held:

“Under the AHC and UUWF statutes, both of which are facially

constitutional, defendant is prohibited from possessing a firearm due to his status

as a felon, irrespective of the violent or nonviolent nature of his convictions. We

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decline to invade the province of the legislature to determine which convictions

warrant a loss of rights.” Travis, 2024 IL App (3d) 230113, ¶ 37.

see also People v. Leonard, 2024 IL App (4th) 230413-U, ¶ 15 (“defendant’s previous felony

convictions make him not a law-abiding citizen and, therefore, not protected by the second

amendment. By incurring a felony conviction, even a nonviolent felony conviction, a citizen

forever loses the constitutional right to have a firearm for the defense of his person and his

house”), People v. Langston, 2023 IL App (4th) 230162-U, ¶ 19 (rejecting the defendant’s

request for the court to “interpret ‘law-abiding citizens’ to include those who had been convicted

of nonviolent felonies”), Muhammad, 2023 IL App (1st) 230121-U, ¶ 21 (citing Brooks, 2023 IL

App (1st) 200435, ¶ 100). Thus, the constitutionality of disarming felons extends to nonviolent

felons.

¶ 85 We find that the regulated conduct under the AHC statute “falls beyond the

Amendment’s original scope” because the scope of the second amendment reaches only “law-

abiding citizens.” Bruen, 597 U.S. at 31-32 (“It is undisputed that petitioners Koch and Nash—

two ordinary, law-abiding, adult citizens—are part of ‘the people’ whom the Second Amendment

protects.”), People v. Baker, 2023 IL App (1st) 220328, ¶ 37 (“The Bruen Court could not have

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

gun possession of ‘law-abiding citizens,’ and not felons like defendant.”), Hatcher, 2024 IL App

(1st) 220455, ¶ 54 (“Bruen limits the second amendment’s scope to (1) citizens who are (2) law-

abiding and (3) responsible, and (4) who use firearms for self-defense.”), Muhammad, 2023 IL

App (1st) 230121-U, ¶¶ 18-23. Defendant, a twice-convicted felon, is not a law-abiding citizen.

¶ 86 This conclusion is not “defeated by Rahimi,” as defendant suggests. In Rahimi, the

Supreme Court addressed the constitutionality under the second amendment of a statute that

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“prohibits an individual subject to a domestic violence restraining order from possessing a

firearm if that order includes a finding that he ‘represents a credible threat to the physical safety

of [an] intimate partner,’ or a child of the partner or individual.” Rahimi, 144 S. Ct. at 1894. The

Court rejected the Government’s argument that Rahimi could be disarmed “simply because he is

not ‘responsible.’ ” Id. at 1903. The Court found that the term “responsible” is vague and that

“[i]t is unclear what such a rule would entail.” Id.

¶ 87 Although the Court “used the term ‘responsible’ to describe the class of ordinary citizens

who undoubtedly enjoy the Second Amendment right” the Court “did not define the term and

said nothing about the status of citizens who were not ‘responsible.’ ” But we do not find, despite

what defendant claims about the State’s argument, that defendant is not someone to whom the

second amendment applies because he is not “responsible.” The second amendment does not

protect defendant’s right to possess a firearm because he is not a law-abiding citizen.

¶ 88 Defendant cites a dissent in Rahimi in an attempt to refute “the ‘law abiding *** citizen’

test.” The dissenting justice wrote:

“At the outset of this case, the Government contended that the Court has

already held the Second Amendment protects only ‘responsible, law-abiding’

citizens. [Citation.] The plain text of the Second Amendment quashes this

argument. The Amendment recognizes ‘the right of the people to keep and bear

Arms.’ (Emphasis added.) When the Constitution refers to ‘the people,’ the term

‘unambiguously refers to all members of the political community.’ ” Rahimi, 144

S. Ct. at 1944 (Thomas, J., dissenting).

We reject the dissent’s contention that the second amendment protects anyone other than “law

abiding citizens.” See Baker, 2023 IL App (1st) 220328, ¶ 37 (“The Bruen Court could not have

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

gun possession of ‘law-abiding citizens,’ and not felons like defendant.”).

¶ 89 Statutes prohibiting felons, including nonviolent felons, from possessing firearms are

presumptively constitutional. Rahimi, 144 S. Ct. at 1902 (“Heller never established a categorical

rule that the Constitution prohibits regulations that forbid firearm possession in the home. In fact,

our opinion stated that many such prohibitions, like those on the possession of firearms by

‘felons and the mentally ill,’ are ‘presumptively lawful.’ ”). Therefore, the analysis stops here

(Bruen, 597 U.S. at 18); the AHC statute is constitutional under the second amendment as

applied to defendant—a twice convicted felon—and, necessarily, it is also facially constitutional

(Villareal, 2023 IL 127318, ¶ 52).

¶ 90 CONSTITUTIONALITY OF AHC UNDER ARTICL I, SECTION 22

¶ 91 Defendant argues the AHC statute is unconstitutional on its face and as applied to

defendant under article I, section 22 of the Illinois constitution. Article I, section 22, reads as

follows: “Subject only to the police power, the right of the individual citizen to keep and bear

arms shall not be infringed.” Ill. Const. art. I, § 22. Defendant argues that by conferring the right

to keep and bear arms on “the individual citizen” rather than “the People” (compare U.S. Const.

amend. II (“A well regulated Militia, being necessary to the security of a free State, the right of

the people to keep and bear Arms, shall not be infringed.”)), the right to keep and bear arms

under the Illinois constitution is broader than under the second amendment and protects a

broader class of individuals, including those “with a legal status that might otherwise place them

outside the political community,” that includes defendant “as an ‘individual citizen’ of this

State.”

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¶ 92 Defendant also argues that the prefatory language “[s]ubject only to the police power”

does not narrow defendant’s right so as to permit permanent felon dispossession. Defendant

argues that the record of the Constitutional Convention shows that the delegates were concerned

with regulating “certain types of arms under the police power, not certain categories of people.”

To the extent the delegates expressed concern about those who committed crimes possessing

firearms, the comments reveal a greater concern for “felony convictions that revealed a tendency

for violence,” and those comments “have to be read consistently with the felon dispossession

laws in effect at the time.” Defendant argues that at the time of the convention there was no law

permanently dispossessing felons of firearms, therefore, the language “[s]ubject to the police

power” “cannot be read to countenance permanent felon dispossession.” As applied to defendant,

defendant argues that “because [defendant] was not using the gun in a dangerous way, nor were

his prior convictions violent, the Illinois Constitution as applied to [defendant] does not preclude

his possessing a gun.”

¶ 93 The State responds that assuming arguendo that article I, section 22, does embrace

defendant regardless of his felon status, the AHC statute is a proper exercise of the police power.

In apparent response to defendant’s argument that the meaning of “the police power” in article I,

section 22, is only the power to restrict violent felons’ possession of firearms temporarily, the

State argues that, as explained in People v. Travis, 2024 IL App (3d) 230113, ¶ 41, our supreme

court in Kalodimos v. Village of Morton Grove, 103 Ill. 2d 483, 491 (1984), “recognized that

Illinois’ police power was ‘intended to provide an “extraordinary degree of control” over the

possession of firearms’ and allows laws ‘restraining or prohibiting anything harmful to the

welfare of the people.’ [Citations.]” The State argues that this court may not overrule that finding

by our supreme court.

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¶ 94 In Kalodimos, a village ordinance completely banned the possession of all operable

handguns with limited exceptions. Kalodimos, 103 Ill. 2d at 490. Our supreme court had to

decide the scope of article I, section 22, and whether the ordinance “passes muster under it.” Id.

The court found that the difference in the language in article I, section 22 from the language in

the second amendment “were intended to broaden the scope of the right to arms from a collective

one applicable only to weapons traditionally used by a regulated militia [citation], to an

individual right covering a wider variety of arms.” Id. at 491. However, “the explicit recognition

of ‘the police power’ [is] a limitation on the liberty the provision affords.” Id. Based on the

report of The Bill of Rights Committee at the Constitutional Convention, our supreme court

recognized that “the possession and use of arms is subject to an extraordinary degree of control

under the police power.” (Internal quotation marks omitted.) Id. at 491-92. The committee report

described regulatory measures “that had been approved in other States as not infringing on

individual right to arms” including “a total prohibition of ‘the sale of some weapons in some

circumstances.’ ” Id. at 492.

¶ 95 Our supreme court acknowledged, similarly to defendant’s argument in this case, that

"[t]he meaning of a constitutional provision depends, of course, on the common understanding of

the citizens who, by ratifying the Constitution, gave it life.” Id. at 492. However, the court also

found (and defendant did not address) that “[t]his understanding *** is best determined by

referring to the common meaning of the words used.” Id. at 492-93. Our supreme court found

that the plain language of article I, section 22, “leaves the right to bear any type of arms subject

to the police power” and “belied any assertion that a majority of the voters must have interpreted

the plain words of the provision as ruling out any specific regulatory measure.” Id. at 493. “The

official explanation which all voters received also left considerable leeway for regulation of guns

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by stating that under section 22 ‘the right of the citizen to keep and bear arms cannot be

infringed, except as the exercise of this right may be regulated by appropriate laws to safeguard

the welfare of the community.’ [Citation.]” Id. The court found that this interpretation is

“consistent with the interpretation of the provision advanced by the delegates who voted to adopt

it.” Id. In rejecting an argument that the “police power” in article I, section 22 permitted the

regulation of all classes of firearms but not a complete prohibition of any class of firearm, our

supreme court stated that it “has long recognized that the police power comprehends laws

‘restraining or prohibiting anything harmful to the welfare of the people’ [citations] and no

convincing evidence has been produced that the voters ascribed a different meaning to the term

in the context of section 22.” (Emphasis added.) Id. at 496.

¶ 96 Because the issue in Kalodimos was a complete ban on handguns, our supreme court held

that, “[b]ased on the floor debates and the official explanation, as well as on the language of the

provision, it is apparent to us that section 22, as submitted to the voters, meant that a ban on all

firearms that an individual citizen might use would not be permissible, but a ban on discrete

categories of firearms, such as handguns, would be.” Id. at 498. Notably, the court rejected an

argument that “there is no principle which permits the complete abridgment of one form of

constitutionally protected behavior whenever other forms of behavior which enjoy the same form

of protection and lead to a substantially similar end are permitted.” (Emphasis added.) Id. at 499.

¶ 97 We interpret Kalodimos to mean the plain language of article I, section 22 does not rule

out a complete and permanent abridgment of possession of firearms by felons. The Kalodimos

court considered whether the ordinance at issue was a proper exercise of the police power.

Although a different statute is involved here, apropos of this case our supreme court found that

“the right to arms secured by the Illinois Constitution, which did not exist prior to 1970, is

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subject, as we have explained, to substantial infringement in the exercise of the police power

even though it operates on the individual level.” Id. at 509. Subsequently, the Third District of

this court held that “the AHC *** statute[ is] a proper exercise of the state’s police power, which

allows the state to exert, through legislation, control over the dangers posed by firearms and the

people who might use them to do harm.” Travis, 2024 IL App (3d) 230113, ¶ 43.

¶ 98 We agree that the AHC statute is a proper exercise of the state’s police power that is

contemplated by the “grant [of] an ‘extraordinary degree of control’ over the use of firearms” in

article I, section 22. Travis, 2024 IL App (3d) 230113, ¶ 42 (quoting Kalodimos, 103 Ill. 2d at

491-92). To any extent Travis might be read to hold the AHC statute is a proper exercise of the

state’s police power on violent felons, we disagree; and, regardless, the point of its holding is

that the police power “allows the state to exert, through legislation, control over the dangers

posed by firearms and the people who might use them to do harm.” Travis, 2024 IL App (3d)

230113, ¶ 43. The legislature could prohibit felons from possessing firearms to safeguard the

welfare of the community. Kelley, 2024 IL App (1st) 230569, ¶ 30 (“nothing in article I, section

22, of the Illinois Constitution suggests that the right to bear arms is unlimited and bars the State

from prohibiting felons from bearing arms.”), see also People v. Robinson, 2023 IL App (1st)

220959-U, ¶ 53 (UUWF “is a proper exercise of police power, and therefore defendant has not

shown that the statute violates the Illinois Constitution on its face or as applied to him.”).

¶ 99 The AHC statute is constitutional as applied to defendant and on its face under article I,

section 22, of the Illinois constitution.

¶ 100 CONCLUSION

¶ 101 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 102 Affirmed.

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