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People v. Spivey

August 05, 2004


[6] Appeal from the Circuit Court of Cook County. No. 02 CR 23406. Honorable Stuart E. Palmer, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Theis

[8]  Following a bench trial, defendant Kavin Spivey was convicted of unlawful use of a weapon (UUW) by a felon and aggravated unlawful use of a weapon and was sentenced to 10 years' imprisonment. On appeal, he contends that (1) his conviction for aggravated UUW violates due process in that the statute lacks a culpable mental state and criminalizes innocent conduct; (2) the State failed to establish his conviction for UUW by a felon beyond a reasonable doubt; (3) the trial court based its findings on an incorrect recollection of the evidence and ignored a material discrepancy in the State's testimony; (4) the trial court failed to correctly admonish defendant pursuant to Supreme Court Rule 605(a) (188 Ill. 2d R. 605(a)); and (5) the mittimus should be corrected to reflect that defendant's offense did not involve a vehicle. For the following reasons, we affirm the judgment of the circuit court and correct the mittimus.


[10]   Officer Timothy Baker testified that on August 28, 2002, he and his partner, Officer Patrick McDonough, were investigating a continuing complaint of loitering gang members using narcotics in Touhy Huber Park in Chicago. Officer Baker stated that at about 10 p.m., they saw a large group of people in the park. Defendant was seated on a bicycle. They approached the group in their unmarked vehicle, and McDonough got out of the car to speak to the group. The park was lit. As they approached, defendant peddled away on his bicycle. Baker was directly behind him and saw him take an object that appeared to be a pistol out of his waistband, throw it to the ground, and then flee on his bicycle. Baker followed defendant in his vehicle and McDonough ran after him on foot. As Baker looked back in his rearview mirror, he could see McDonough bend down to pick something up from the ground, but he did not see him recover the object. Defendant was arrested several blocks away in an alley near Adams and Oakley.

[11]   Officer McDonough testified that he was chasing defendant on foot. As defendant fled, McDonough saw him reach into his waistband and drop a handgun to the ground. Defendant was about 25 feet away from him when he dropped the gun. McDonough stated that he saw exactly where the gun landed. As defendant dropped the gun, the vehicle driven by Officer Baker passed by him. McDonough then picked up the weapon, a loaded, uncased, .25-caliber blue steel handgun, and continued to pursue defendant on foot. When he arrived at Adams and Oakley, defendant was sitting in the back of a marked police car.

[12]   Additionally, the parties stipulated that "defendant ha[d] been convicted of a prior felony of aggravated discharge of a firearm, Case No. 98-CR-21155." Defendant rested without presenting any evidence. The trial court found defendant guilty of aggravated UUW and UUW by a felon. He was sentenced to 10 years' imprisonment. Defendant's posttrial motions were denied and he filed a timely appeal.


[14]   Defendant contends the provisions of the aggravated UUW statute under which he was convicted violate substantive due process. He argues that while the statute requires defendant to knowingly carry or conceal a loaded, uncased and immediately accessible firearm (720 ILCS 5/ 24-1.6(a)(1)(3)(A) (West 2002)), it requires no criminal purpose and therefore potentially punishes innocent conduct. Whether a statute complies with substantive due process requirements is determined under the rational basis test. People v. Wright, 194 Ill. 2d 1, 24, 740 N.E.2d 755, 767 (2000). Under that test, a statute is upheld where it " 'bears a reasonable relationship to a public interest to be served, and the means adopted are a reasonable method of accomplishing the desired objective.' " Wright, 194 Ill. 2d at 24, 740 N.E.2d at 767, quoting People v. Adams, 144 Ill. 2d 381, 390, 581 N.E.2d 637, 642 (1991).

[15]   Defendant recognizes that his argument was considered and rejected in People v. Grant, 339 Ill. App. 3d 792, 791 N.E.2d 100 (2003), and its progeny. See People v. McGee, 341 Ill. App. 3d 1029, 794 N.E.2d 855 (2003), appeal denied, 205 Ill. 2d 621, 803 N.E.2d 493 (2003); People v. Marin, 342 Ill. App. 3d 716, 795 N.E.2d 953 (2003), appeal denied, 206 Ill. 2d 631, 806 N.E.2d 1070 (2003); People v. Pulley, 345 Ill. App. 3d 916, 803 N.E.2d 953 (2004), appeal denied, 208 Ill. 2d 536, 809 N.E.2d 1291 (2004). In these cases, the defendants, like the instant defendant, relied upon the supreme court decisions in People v. Wright, 194 Ill. 2d 1, 740 N.E.2d 755 (2000), People v. Wick, 107 Ill. 2d 62, 481 N.E.2d 676 (1985), and People v. Zaremba, 158 Ill. 2d 36, 630 N.E.2d 797 (1994), to support their contentions of unconstitutionality. Defendant argues, as the defendant in Grant argued, that these supreme court cases stand for the broad proposition that whenever a statute contains a mental state of knowledge without a further criminal purpose, the statute is unconstitutional. This argument is erroneous. The court has not established such a broad proposition of law. See, e.g., People v. Farmer, 165 Ill. 2d 194, 650 N.E.2d 1006 (1995); People v. Thoennes, 334 Ill. App. 3d 320, 777 N.E.2d 1075 (2002) (where knowledge without a criminal purpose was sufficient to withstand the rational basis test). Rather, in Wright, Wick and Zaremba, the supreme court held that the specific statute at issue did not meet the rational basis test in that the statute was not rationally related to its specific legislative purpose or the means used to accomplish the legislative purpose was not reasonable in that instance.

[16]   In Wright, the statute at issue made it a felony for certain individuals licensed under the Vehicle Code (625 ILCS 5/1-100 et seq. (West 1996)) to knowingly fail to maintain records relating to the acquisition and disposition of vehicles and parts at their place of business. The purpose of the statute was to prevent or reduce the transfer or sale of stolen vehicles or their parts; the purpose was not to punish those who made a slight lapse in record keeping without any unlawful purpose. Therefore, where the statute potentially punished innocent conduct, the court held that the statute was not a reasonable means of preventing the trafficking of stolen vehicles and parts. Wright, 194 Ill. 2d at 28, 740 N.E.2d at 768-69.

[17]   In Zaremba, the statute made it a felony to obtain or exert control over property in the custody of any law enforcement agency where the individual has knowledge that the property was stolen. The court found that the statute did not bear a rational relationship to its stated purpose of breaking up "fencing" operations because it potentially punished the lawful actions of a police evidence technician who retained the proceeds of a theft for safekeeping. Zaremba, 158 Ill. 2d at 38, 630 N.E.2d at 798.

[18]   In Wick, the aggravated arson statute made it a felony to knowingly damage a building by fire where the fire injures a fireman or policeman. The court found that the statute was inconsistent with the simple arson statute, which required the offender to knowingly damage by fire another's property without authority or with the intent to defraud the insurer, thus requiring a greater degree of malice. Where the aggravated arson statute did not require the same unlawful purpose as that required for simple arson, the statute did not bear a reasonable relationship to its stated purpose of providing a more severe penalty for arsonists whose conduct resulted in injury to a fireman or policeman. Wick, 107 Ill. 2d at 66, 481 N.E.2d at 678-79.

[19]   In the present case, the statute does not fail the rational basis test. The statute at issue makes it a felony to knowingly possess a loaded, readily accessible, uncased weapon on one's person, except on one's own property or fixed place of business. 720 ILCS 5/ 24-1.6(a)(1)(3)(A) (West 2002). Contrary to defendant's contention, the purpose of the statute was not merely to limit possession of firearms by members of street gangs and organized crime figures. Rather, the intended purpose was broader in scope, designed to impose greater punishment for conduct that the legislature has determined creates "inherent dangers to police officers and the general public. This is so even if the person carrying the weapon has no criminal objective." Grant, 339 Ill. App. 3d at 806, 791 N.E.2d 100. As we found in Marin, there is no question that such a purpose is a legitimate state interest properly regulated by the legislature. Illinois courts have consistently held firearm controls to be within the purview of the State's police power. Marin, 342 Ill. App. 3d at 722, 795 N.E.2d at 959, citing Quilici v. Village of Morton Grove, 532 F. Supp. 1169, 1182 (N.D. Ill. 1981).

[20]   The statute is rationally related to a legitimate governmental purpose because it does not criminalize as a strict liability offense mere lawful gun ownership in any circumstance. Rather, the statute penalizes the knowing possession of a weapon with the aggravating factors that it be loaded, readily accessible, uncased, and in a specific environment, a circumstance the legislature has determined belies innocent conduct. Penalizing those who knowingly carry or transport weapons in this manner is a rational way to accomplish the legislative goal of improving public safety. McGee, 341 Ill. App. 3d at ...

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