Appeal from the Circuit Court of Cook County. No. 00 CR 20536 Honorable Dennis A. Dernbach, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gordon
Following a bench trial, defendant, Gabriel Marin, was convicted of aggravated unlawful use of a weapon and sentenced to 24 months of probation. On appeal, defendant contends he was not proven guilty beyond a reasonable doubt. Defendant further contends that the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2002)), under which he was convicted, is unconstitutionally overbroad, thereby violating his right to due process. We affirm.
Three witnesses testified during defendant's bench trial. Chicago police officer Sean Loughran testified that while on patrol with his partner, he observed defendant and three other individuals standing in front of a house at 5753 South Campbell Street in Chicago. Loughran stated that defendant was holding a small, shiny metallic object in his right hand, which Loughran believed to be a gun. Loughran's partner stopped the unmarked police car about 25 feet away from the four individuals and, when Loughran emerged from the car, defendant dropped the suspected gun and Loughran heard it hit the ground. After the officers apprehended the four men, Loughran recovered a semiautomatic, .22-caliber, loaded handgun from the porch of the house. The men were handcuffed and searched, but nothing further was recovered. Defendant was taken to the police station after the three other individuals, who were minors, were released.
Loughran testified that upon arriving at the police station, defendant waived his Miranda rights. Defendant then told Loughran that he purchased the handgun for $80 or $90 and was carrying it for a street gang, the "Party People," with which he was affiliated. He further stated that the gun was not worth more than $50.
Andrew Martinez, a minor who was detained with defendant, testified that he, defendant and two other young men were standing on the porch of 5753 South Campbell when they were approached by two police officers. Martinez stated that he was holding the gun when the police arrived and that he dropped the gun in the grass. Martinez asserted that, although he told the police the gun was his, the police implicated defendant because Martinez was a minor and defendant was not.
Finally, defendant testified at trial that he and his brother were walking his dog when a friend called him over to the porch at 5753 South Campbell. After speaking with the individuals on the porch, he returned to walking his dog. As he walked away from the porch, however, two police officers arrived and detained him and three other individuals who were on the porch. After asking the four young men their ages, the officers took defendant to the police station. Defendant denied that he was holding a gun. He further denied that he was a member of a street gang and that he made a statement to the police officers at the police station.
The trial court found defendant guilty of aggravated unlawful use of a weapon and sentenced him to 24 months of probation. The court noted that it found Officer Loughran's testimony to be credible, while inconsistencies between the testimony of Martinez and defendant rendered them not credible as witnesses.
On appeal, defendant contends that the aggravated unlawful use of a weapon statute (aggravated UUW) is unconstitutional on the grounds that the statute requires no culpable mental state and thereby punishes innocent conduct, resulting in the contravention of the due process provisions of both the state and federal constitutions. Defendant further contends that he was not proven guilty of aggravated UUW beyond a reasonable doubt. For the following reasons, we find the statute to be constitutional and affirm defendant's conviction.
With respect to defendant's due process contentions, we initially note that this court recently rejected this exact argument in the cases of People v. McGee, No. 1-01-2637 (June 30, 2003), and People v. Grant, No. 1-01-1134 (May 22, 2003). We do the same here for the following reasons.
The aggravated UUW statute provides:
"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; or
(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own ...