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The People of the State of Illinois v. Arturo Sotelo

March 29, 2012

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
ARTURO SOTELO,
DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 08-CF-646 Honorable Allen M. Anderson, Judge, Presiding.

The opinion of the court was delivered by: Justice Zenoff

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Hutchinson and Burke concurred in the judgment and opinion.

OPINION

¶ 1 Defendant, Arturo Sotelo, was charged by indictment with various offenses including three counts of unlawful possession of a firearm without a firearm owner's identification (FOID) card (430 ILCS 65/2(a)(1) (West 2008)) (counts III, IV, and V) and one count of unlawful possession of firearm ammunition without a FOID card (430 ILCS 65/2(a)(2) (West 2008)) (count VI). Following a bench trial in the circuit court of Kane County, defendant was found guilty of those charges, which were based on his possession of three different firearms and a single box of ammunition. Defendant argues on appeal that three of the convictions must be vacated. Although we conclude that the possession of multiple firearms without a FOID card will support only one conviction, a separate conviction based on the possession of firearm ammunition without a FOID card may also stand. Accordingly, two-not three-of the convictions must be vacated.

¶ 2 Section 2(a) of the Firearm Owners Identification Card Act (FOID Card Act) (430 ILCS 65/2(a) (West 2008)) provides, in pertinent part, as follows:

"(a)(1) No person may acquire or possess any firearm, stun gun, or taser within this State without having in his or her possession a [FOID] Card previously issued in his or her name by the Department of State Police under the provisions of this Act.

(2) No person may acquire or possess firearm ammunition within this State without having in his or her possession a [FOID] Card previously issued in his or her name by the Department of State Police under the provisions of this Act."

¶ 3 Defendant contends, and we agree, that this provision does not require a separate FOID card for each weapon or for ammunition; one card would have made possession of the three firearms and the ammunition lawful. In defendant's view, the offenses here were carved from a single physical act-the failure to possess a FOID card-in violation of the one-act, one-crime rule announced in People v. King, 66 Ill. 2d 551 (1977). As we have noted, under the King rule, "multiple convictions are prohibited where the offenses are carved from the same physical act or where, with regard to multiple acts, one of the offenses is a lesser included offense of the other." People v. Bouchee, 2011 IL App (2d) 090542, ¶ 6 (citing King, 66 Ill. 2d at 566). Defendant's reliance on King is misplaced, however, because the offenses in this case consist not merely of the failure to possess a FOID card, but also of the possession of any firearm, stun gun, or taser (430 ILCS 65/2(a)(1) (West 2008)) or of ammunition (430 ILCS 65/2(a)(2) (West 2008)). Possession of at least one of the listed items is as much an element of the offense as is the failure to possess a FOID card. "When a common act is part of both offenses, or is part of one offense and the only act of another, multiple convictions can still stand." People v. Hagler, 402 Ill. App. 3d 149, 153 (2010). Thus, although the singular act of failing to possess a FOID card could not sustain multiple convictions of an offense comprised solely of that act, failing to possess a FOID card may serve as a common element of multiple offenses that include additional physical acts-possession of different firearms, or of firearm ammunition-as elements.

¶ 4 Our inquiry does not end, however, with the conclusion that defendant's multiple convictions are permissible under King. We must also consider, as a matter of statutory construction, whether the General Assembly intended to permit separate convictions for each weapon, and for the ammunition, found in defendant's possession. This question requires us "to determine the statute's 'allowable unit of prosecution.' " People v. Carter, 213 Ill. 2d 295, 302 (citing United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 220-21 (1952)).

¶ 5 Where a statute is ambiguous as to the allowable unit of prosecution, the court "must adopt a construction that favors the defendant." Id. In Carter, the defendant was convicted of multiple counts of unlawful possession of a weapon by a felon. The statute defining that offense provided, "It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon *** or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction." (Emphasis added.) 720 ILCS 5/24-1.1(a) (West 1996). The Carter court concluded that the word "any" made it possible to read the statute to mean either (1) that the possession of each firearm and of firearm ammunition constituted a separate offense or (2) that the simultaneous possession of multiple firearms and of firearm ammunition constituted only a single offense. The statute was ambiguous because "any" could signify " 'some,' 'one out of many' or 'an indefinite number.' " Carter, 213 Ill. 2d at 301-02 (quoting Black's Law Dictionary 94 (6th ed. 1990)). The court resolved the ambiguity in favor of the defendant, holding that his possession of two loaded handguns supported only a single conviction.

¶ 6 Citing People v. Cox, 53 Ill. 2d 101 (1972), and People v. Manning, 71 Ill. 2d 132 (1978), the Carter court added, "[t]his court has consistently held, where a statute is ambiguous, in the absence of a statutory provision to the contrary, simultaneous possession could not support multiple convictions." Carter, 213 Ill. 2d at 302. The citation to Cox is puzzling inasmuch as that decision involved a sex offense, not a possession offense. Cox held that contemporaneous acts of sexual intercourse and oral-genital contact supported only a single conviction of indecent liberties with a child. More importantly, it seems clear that Cox was no longer good law when Carter was decided. See People v. Segara, 126 Ill. 2d 70, 77 (1988) ("For defendant [who forced victim to engage in vaginal intercourse and to perform fellatio] to claim that only one rape occurred, 'demeans the dignity of the human personality and individuality' " (quoting Pruitt v. State, 382 N.E.2d 150, 154 (Ind. 1978))).

¶ 7 Manning is closer to the mark. In that case, our supreme court held that the statutory prohibition of possession of "a" controlled substance (Ill. Rev. Stat. 1973, ch. 561/2 , ¶ 1402(a)) did not permit separate convictions for the simultaneous possession of two different controlled substances. The Manning court drew an analogy to Bell v. United States, 349 U.S. 81 (1955), in which the United States Supreme Court considered the allowable unit of prosecution under the Mann Act, which made it a crime to "knowingly transport[] in interstate or foreign commerce *** any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose." 18 U.S.C. § 2421. The Bell Court concluded that simultaneous transportation of more than one woman for a prohibited purpose gave rise to only a single violation. The Manning court seized upon the following language in Bell:

"When Congress has the will it has no difficulty in expressing it-when it has the will, that is, of defining what it desires to make the unit of prosecution and, more particularly, to make each stick in a [bundle] a single criminal unit. When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity." Bell, 349 U.S. at 83.

ΒΆ 8 Significantly, the statute in Bell (like the one in Carter) used the word "any" in its description of the proscribed conduct, to wit, transporting "any woman or girl." As noted, the statute at issue in Manning proscribed possession of "a" controlled substance. The word "a" is frequently "used in the sense of 'any' and is then applied to more than one individual object." Black's Law Dictionary 1 (6th ed. 1990); accord People v. Carter, 142 Cal. Rptr. 517, 520-21 (Cal. Ct. App. 1977) (in holding that defendant's possession of several checks constituted only a single violation of statute proscribing "possession of a completed check" with ...


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