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People v. Washington

September 30, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
FRANK WASHINGTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County Honorable Michael P. Toomin, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

UNPUBLISHED

Following a bench trial, defendant Frank Washington was convicted of aggravated unlawful use of a weapon (aggravated UUW) ( 720 ILCS 5/ 24-1.6(a)(1)(3)(A) (West 2000)) and possession of a controlled substance (720 ILCS 570/402(c) (West 2000)). Defendant was sentenced to nine years' imprisonment for aggravated unlawful use of a weapon and three years' imprisonment for possession of a controlled substance, to be served concurrently. On appeal, defendant argues: (1) the aggravated UUW statute violates substantive due process; (2) the aggravated UUW statute violates the proportionate penalties clause when compared to reckless discharge of a firearm; (3) the State failed to prove defendant guilty of possession of a controlled substance beyond a reasonable doubt; and (4) the State failed to prove, beyond a reasonable doubt, the factors used to extend his sentence. We affirm.

BACKGROUND

We will discuss only those facts relevant to the disposition of this appeal.

On November 14, 2001, after being alerted to possible narcotics transactions, Officer Lanell Aubert of the Chicago police department, with his partners Officers Madison and Green, set up surveillance of a residence at 6040 South Wood Street. Officer Aubert had an unobstructed view of the residence from his post across the street at 6033 South Wood Street and could see defendant, whom he later identified in court, standing on the sidewalk in front of 6040 South Wood Street.

Officer Aubert testified that as he was watching, he saw an unidentified individual hand defendant a sum of money. After receiving the money, defendant walked toward the gangway, pulled back some aluminum siding from the facade of the residence and retrieved a plastic bag. Defendant retrieved a smaller item from the larger plastic bag and then returned the plastic bag underneath the aluminum siding,. Defendant returned to the individual and handed him the small item he had retrieved from the plastic bag. The individual then walked off. Two other individuals approached defendant on two separate occasions and the aforementioned process was repeated.

After the third transaction, Officer Aubert radioed his partners and informed them of his observations. After Officers Madison and Green had detained defendant, Officer Aubert entered the gangway and looked under the aluminum siding where he had seen defendant retrieve the large plastic bag. There, Officer Aubert discovered a plastic bag containing smaller items which he suspected were cocaine.

Officer Madison testified that after he was alerted by Officer Aubert regarding the narcotics transactions Officer Aubert had witnessed, he and Officer Green approached 6040 South Wood in their unmarked vehicle. As he was exiting his vehicle to approach defendant, Officer Madison observed defendant remove a blue, steel weapon from his waistband and throw the weapon to the ground. Defendant was taken into custody and the gun was recovered. Officer Madison found that the weapon contained one live round and one spent round. In addition, it was later discovered that defendant did not have a valid firearm owner's identification card (FOID).

The parties then stipulated that Officer Aubert inventoried the recovered two items of suspected cocaine that he had recovered from the plastic bag found in the facade of the residence and that there was a proper chain of custody maintained at all times over the recovered items.

The parties also stipulated that if called to testify, forensic chemist Brister, who is employed by the Illinois State Police crime lab and qualified as an expert in the area of forensic chemistry, would testify that he received the items recovered by Officer Aubert in a sealed condition. He weighed the two items of suspected cocaine and discovered that the total estimated weight of the recovered items was 0.2 grams. He then performed tests, commonly accepted in the area of forensic chemistry for ascertaining the presence of a controlled substance, on the two items and opined within a reasonable degree of scientific certainty that the items tested positive for the presence of cocaine.

Following this testimony and the testimony of several defense witnesses, the court found defendant of guilty aggravated UUW and possession of a controlled substance. It is from this judgment that defendant now appeals.

ANALYSIS

A. Substantive Due Process

Defendant first attacks the constitutionality of the aggravated UUW statute and argues that it violates substantive due process because it lacks a culpable mental state and punishes innocent conduct. We recently considered and rejected this argument in People v. Grant, 339 Ill. App. 3d 792, 791 N.E.2d 100 (2003). In Grant, this court held that the aggravated UUW statute does, if fact, contain a sufficient mental state, i.e., knowledge, and does not violate substantive due process as it is rationally related to legitimate state goals. Grant, 339 Ill. App. 3d at 806, 791 N.E.2d at 111-12; see also People v. McGee, No. 1-02-2637 (June 30, 2003); People v. Marin, No. 1-01-1080 (August 11, 2003).

B. Proportionate Penalties

Defendant contends that the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2000)), which is a Class 2 felony when a defendant has a previous felony conviction, violates the proportionate penalties clause of the Illinois Constitution when compared to the reckless discharge of a firearm statute (720 ILCS 5/24-1.5 (West 2000), which is always a Class 4 felony.

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 abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm; and (3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or

(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or

(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's ...


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