Court of Appeals of Illinois, First District, Second Division
Appeal from the Circuit Court of Cook County. No. 11 CR 6447. Honorable Shelley Sutker-Dermer, Judge Presiding.
Where defendant was convicted of two counts of aggravated unlawful use of a weapon and sentenced to a single term of probation, his conviction for aggravated unlawful use of a weapon under section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code was reversed pursuant to the decision of the Illinois Supreme Court in Aguilar holding that statute unconstitutional on its face, but the cause was remanded with directions to impose a sentence on defendant for his conviction for violating section 24-1.6(a)(1), (a)(3)(C) of the Code, based on not having a FOID card, notwithstanding his contentions that subsection (a)(3)(C) is also unconstitutional on its face and is not severable from subsection (a)(3)(A), since subsection (a)(3)(C) was unaffected by the decision in Aguilar and remained constitutionally valid as applied to defendant.
For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Peter Sgro, Assistant Appellate Defender, of counsel, of Chicago.
For Appellee: Anita Alvarez, State's Attorney of Cook County, Alan J. Spellberg, Kathleen Warnick, Carlos Vera, Assistant State's Attorneys, of counsel, of Chicago.
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Simon and Pierce concurred in the judgment and opinion.
QUINN, PRESIDING JUSTICE.
[¶1] Following a bench trial, defendant Jaquan Henderson was found guilty of two counts (IV and V) of aggravated unlawful use of a weapon (aggravated UUW) and sentenced to a single term of 18 months' probation. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt of aggravated UUW where the State failed to present any evidence that he was not an invitee at 1422 North Lotus Avenue, where his father lived. He also contends that the aggravated UUW statute, section 24-1.6(a)(1), (a)(3)(A) of the Criminal Code of 1961 (720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), which criminalizes the possession of a loaded firearm when outside one's home, violates both federal and state guarantees of the individual right to bear arms for self-defense outside the home, and thus the statute is unconstitutional and renders his conviction void.
[¶3] The record shows that defendant was charged by information with six counts of aggravated UUW stemming from an incident on April 12, 2011. The trial court found defendant guilty of counts IV and V, and not guilty of the remaining
counts. The sentencing order entered by the trial court reflects a single term of 18 months' probation with specific reference to only count IV, wherein the State alleged that " the firearm possessed was uncased, loaded and immediately accessible at the time of the offense, in violation of section 24-1.6(a)(1)/(3)(A) of the Illinois Compiled Statutes 1992 as amended." The trial court did not impose sentence on count V (aggravated UUW), wherein the State alleged that defendant was in possession of a firearm and " had not been issued a currently valid firearm owner's identification card, in violation of section 24-1.6(a)(2)/(3)(C) of the Illinois Compiled Statutes 1992 as amended."
[¶4] At trial, Chicago police officer Anthony Jannotta testified that at 4 p.m. on April 12, 2011, he and his partner, Officer Eric Seng, were on routine patrol in the 1400 block of North Lotus Avenue, wearing plain clothes and driving an unmarked car. He described the area as residential, with high gang and drug activity, consisting primarily of single-family homes separated by gangways leading to backyards and garages.
[¶5] Officer Jannotta testified that he observed a group of approximately 20 to 30 male teenagers on the west side of North Lotus Avenue, a one-way southbound street, by the grassy area between the sidewalk and the curb. His attention was drawn to defendant, whom he identified in court, standing on the sidewalk. From the front passenger seat of the unmarked patrol car, Officer Jannotta saw defendant grab his waistband and begin walking away. Defendant picked up his pace as Officer Jannotta and his partner caught up to him in their unmarked car. When Officer Jannotta asked him to " hold up," defendant looked in the officer's direction and ran southwest into the gangway of 1422 North Lotus Avenue. At that time, Officer Jannotta announced his office and chased defendant on foot, briefly losing sight of him as he turned into the backyard of 1422 North Lotus Avenue. Officer Jannotta testified that he then observed defendant remove a bluesteel handgun from his right pants pocket and throw it into the backyard of the adjacent residence at 1424 North Lotus Avenue. Officer Jannotta handcuffed defendant and recovered the loaded .380-caliber handgun, which his partner subsequently inventoried.
[¶6] Officer Jannotta further testified that he advised defendant of his Miranda rights at the police station and defendant agreed to speak with him. Defendant stated that he had just found the handgun and kept it for protection because " he was into it with [the Traveling] Vice Lords." Officer Jannotta asked defendant if he had a firearm owner's identification (FOID) card, and defendant replied that he did not. During processing, defendant gave his home address as 1310 North Lorel Avenue in Chicago.
[¶7] On cross-examination, Officer Jannotta acknowledged that he did not observe defendant with a handgun when he was standing on the sidewalk, but when defendant was in the backyard of 1422 North Lotus Avenue, throwing it over the fence. Over the State's objection, Officer Jannotta further testified that following defendant's arrest, he had a discussion with an individual who came outside of the house at 1422 North Lotus Avenue and whom Officer Jannotta believed was defendant's father or stepfather. Thereafter, the State rested its case-in-chief, and the defense rested without presenting any evidence.
[¶8] During closing arguments, defense counsel argued, inter alia, that the State failed to meet its burden of disproving defendant's connection to 1422 North Lotus Avenue. Defense counsel argued that defendant was on the sidewalk in front of
that address, and never on the public street, as alleged in the information. The State contended that defendant possessed the handgun when he was with a group of people on the parkway and on the sidewalk at that location. The trial court found defendant guilty of two counts of aggravated UUW based on the credible testimony of Officer Jannotta. Defendant was subsequently sentenced to 18 months' probation. Defendant timely filed this appeal pursuant to Illinois Supreme Court Rules 604(b) and 606 (eff. Feb. 6, 2013).
[¶10] In this court, defendant contends that he was not proved guilty of aggravated UUW beyond a reasonable doubt and that the aggravated UUW statute, which criminalizes the possession of a loaded firearm when outside one's home, violates both federal and state guarantees of the individual right to bear arms for self-defense outside the home. He thus ...