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People v. Austin

June 25, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LARRY AUSTIN, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. Honorable Vincent M. Gaughan, Judge Presiding.

[7] The opinion of the court was delivered by: Presiding Justice O'mara Frossard

[8]  Following a bench trial defendant, Larry Austin, was found guilty of aggravated unlawful use of a weapon. Based on defendant's previous felony convictions, he was sentenced as a Class 2 felon to incarceration in the Illinois Department of Corrections for 36 months. Defendant appeals contending that his conviction should be reversed because the State failed to prove him guilty beyond a reasonable doubt. He also raises two arguments regarding the constitutionality of the aggravated unlawful use of a weapon (aggravated UUW) statute: (1) the statute violates due process because it requires no culpable mental state, and thereby allows a felony conviction based on innocent conduct; and (2) the penalty for aggravated unlawful use of a weapon under section 24-1.6 of the Criminal Code of 1961 (720 ILCS 5/24-1.6 (West 2002)) is unconstitutionally disproportionate to the penalty for reckless discharge of a firearm under section 24-1.5 (720 ILCS 5/24-1.5 (West 2002)).

[9]  SUFFICIENCY OF EVIDENCE

[10]   The factual background of the instant case will be discussed in the context of the defendant's challenge to the sufficiency of the evidence. In resolving a challenge to the sufficiency of the evidence, a reviewing court must view all the evidence in the light most favorable to the prosecution and affirm the conviction if "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed. 2d. 560, 573, 99 S.Ct. 2781, 2789 (1979). In support of his challenge to the sufficiency of the evidence, defendant argues that the testimony of Officer Carillo was contrary to human experience and unworthy of belief. Defendant acknowledges that the determination of the credibility of witnesses by the trier of fact is entitled to great weight, but further contends that the trier of fact's determination is not conclusive. Relying on People v. Smith, 185 Ill. 2d 532, 542 (1999), defendant notes that a conviction will be reversed where the evidence is so unreasonable, improbable or unsatisfactory that it creates a reasonable doubt of defendant's guilt.

[11]   The record reflects that Officer Carillo observed a car with five individuals drive through a red light at Roosevelt Road and Kedzie Avenue in the City of Chicago, on February 25, 2003, at approximately 2:30 a.m. Officer Carillo, with his partner, pursued the car with the emergency lights and spotlight activated. The car did not stop, but continued driving southbound on Kedzie, eastbound on 13th Street and northbound in an alley east of Kedzie, stopping in a vacant parking lot at 1221 South Kedzie. After approaching the car, Officer Carillo ordered defendant, who was in the passenger's seat, to raise his hands. As defendant complied, Carillo, located a few feet from the car, observed through the closed window a handgun in defendant's right hand. At the point when defendant's hands were at chest level, Carillo observed defendant drop the gun to the floor of the car. Carillo ordered defendant to exit the car, placed him under arrest, and handcuffed him. Carillo recovered the uncased Baretta handgun, with 1 live round in the chamber and 12 rounds in the 15-round magazine, from the floor of the car.

[12]   In addressing defendant's challenge to the sufficiency of the evidence, we are mindful that it is for the trier of fact, in this case the trial judge, to determine the credibility of the witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. People v. Campbell, 146 Ill. 2d 363, 375 (1992). The trial court, as the trier of fact in a bench trial, hears and sees the witnesses and, thus, has the responsibility to judge their credibility, resolve any inconsistencies, determine the weight to give their testimony, and draw reasonable inferences from all the evidence presented. People v. Steidl, 142 Ill. 2d 204, 226 (1991).

[13]   Defendant argues that Officer Carillo's testimony is preposterous and incongruous. In support of that argument, defendant notes that, according to Carillo's testimony, "during the period in which the marked police car with its lights on was following the car in which he was riding (approximately one minute), Mr. Austin made no attempt to stash the handgun under the seat or in the glove compartment of the car. Instead, knowing he faced a felony charge for possession of the weapon, Mr. Austin instead chose to hold the handgun in his hand. Then, when the officer told him to raise his hands, Austin raised the weapon to the very point where Carillo was certain to see it-but only that high-before dropping the gun, in Carillo's plain view, to the floor of the car."

[14]   It would be speculation to try to determine why Mr. Austin made no attempt to stash the handgun. It could be speculated that Mr. Austin was considering using the loaded weapon on Officer Carillo, but then decided to drop it. Of course, that would be pure speculation, which we will not consider. We are, however, mindful that in reviewing the sufficiency of the evidence, "great deference should be given to trial judges when they hear the evidence and observe the witnesses." People v. Hernandez, 312 Ill. App. 3d 1032, 1037 (2000).

[15]   In the instant case, the experienced trial judge was convinced beyond a reasonable doubt of defendant's guilt. In order to "sustain a conviction, it is the trier of fact, not this court, who must be convinced of defendant's guilt beyond a reasonable doubt." People v. Smith, 299 Ill. App. 3d 1056, 1062 (1998). The trial judge specifically indicated, "[a]fter listening to the witnesses, observing their demeanor while testifying[,] and listening to the arguments of the attorneys, it's my finding that the State has proved Mr. Austin guilty beyond a reasonable doubt in Counts 1 and 2."

[16]   We note that in support of the challenge to the sufficiency of the evidence, defendant relies on People v. Cunningham, 333 Ill. App. 3d 1045 (2002), appeal allowed, 203 Ill. 2d 679 (2003). We find Cunningham factually distinguishable. The officer who testified in Cunningham demonstrated a selective memory. He could not remember who his partner was at the time of the arrest or whose cellular phone he used when arranging the narcotics transaction. The officer's report lacked significant details. The officer's report failed to describe the citizen-informant or memorialize his conversation with the alleged informant. Cunningham, 333 Ill. App. 3d at 1047.

[17]   Unlike the police officer who testified in Cunningham, in the instant case, Officer Carillo recalled the events of February 5, 2003, surrounding the arrest of defendant. He testified that he and his partner pulled over a car which had run a red light at Kedzie and Roosevelt. He further explained that by looking through the window he observed a handgun in defendant's right hand, which defendant dropped to the floor. There was no significant impeachment of Officer Carillo on cross-examination. Rather, defendant asks us to simply retry the case and declare Carillo's version of events preposterous and incongruous. Based on the record, we find that the State proved defendant guilty of aggravated UUW beyond a reasonable doubt. We refuse to speculate as to why defendant did not stash the handgun before Officer Carillo approached. As previously noted, perhaps defendant was considering using the loaded handgun, but that is speculation, which this court will not consider.

[18]   SUBSTANTIVE DUE PROCESS

[19]   Defendant contends the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2002)) violates substantive due process because it requires only that an individual knowingly carry or conceal a firearm and that one of the aggravating factors be present. 720 ILCS 5/ 24-1.6(a)(1) (West 2002). In support of that argument, defendant notes that "no culpable intent was required for the section under which Mr. Austin was convicted. *** It thus potentially punishes as a felony, wholly innocent conduct, contrary to the requirements of due process."

[20]   Defendant was convicted under 24-1.6(a)(1)(3)(A), which provides "the firearm possessed was uncased, loaded and immediately accessible at the time of the offense." 720 ILCS 5/24-1.6 (a)(1)(3)(A) (West 2002). Defendant recognizes that the appellate court has previously ruled that the aggravated unlawful use of a weapon statute satisfies the requirements of substantive due process in the context of its requirement of a "knowing" mental state in People v. Marin, 342 Ill. App. 3d 716 (2003) (First Dist., First Div.); People v. Grant, 339 Ill. App. 3d 792 (2003) (First Dist., Fourth Div.); People v. McGee, 341 Ill. App. 3d 1029 (2003) (First Dist., Third Div.); People v. Washington, 343 Ill. App. 3d 889 (2003) (First Dist., Third Div.); and People v. Pulley, 345 Ill. App. 3d 916 (2004) (First Dist., Third Div.). Defendant argues that the appellate court wrongly decided these cases. He asks us to ...


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