Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County No. 09 CR 12950, Honorable Thomas M. Davy, Judge Presiding.
Rochford, Presiding Justice and Hall, Justice concurred in the judgment and opinion.
¶ 1 Following a bench trial in the circuit court of Cook County, defendant Edward Burns (defendant) was found guilty of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(2), (a)(3)(A), (d) (West 2008) and sentenced to 10 years in prison. Defendant was convicted of a Class 2 offense, based on a prior felony conviction, and sentenced as a Class X offender. On appeal, defendant argues his convictions must be reversed pursuant to the Illinois Supreme Court's decision in People v. Aguilar, 2013 IL 112116, reh'g denied (Dec. 19, 2013), which held the Class 4 form of section 5/24-1.6(a)(1), (a)(3)(A), (d) of the AUUW statute facially violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution (U.S. Const., amend. II). Aguilar, 2013 IL 112116, ¶ 22. For the following reasons, we affirm defendant's conviction.
¶ 2 BACKGROUND
¶ 3 The record on appeal discloses the following facts. On October 7, 2009, defendant was charged by indictment with violating the armed habitual criminal statute (720 ILCS 5/24-1.7(b) (West 2008)), two counts of unlawful use of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1 (West 2008)), and eight counts of AUUW (720 ILCS 5/24-1.6 (West 2008)). The armed habitual criminal charge was based on prior convictions for possession of a controlled substance and AUUW. The UUWF charges were based on the prior AUUW conviction. Four of the AUUW charges refer to the prior AUUW conviction, while the four remaining AUUW charges refer to the prior conviction for possession of a controlled substance. On November 28, 2011, immediately prior to the commencement of the trial, the State moved to dismiss counts 5, 7, 9 and 11 by nolle prosequi. The dismissed counts charged various forms of AUUW on the ground that defendant had not been issued a valid firearms owner identification card.
¶ 4 At trial, Chicago police officer Tim McDonough testified that on June 13, 2009, at approximately 4 a.m., he and Officer Mark Sobczyk were patrolling in a marked police vehicle and responded to a radio report of gunfire in the vicinity of 73rd Street and Blackstone Avenue. While proceeding to that location, the police officers were flagged down by the owner of a black sports utility vehicle, who notified the officers of gunfire and pointed down 73rd Street.
¶ 5 As the police officers approached the intersection of 73rd Street and Blackstone Avenue, Officer McDonough observed three individuals entering a four-door Nissan Maxima facing eastward on 73rd Street. Officer McDonough also noticed a female driver he had not observed entering the vehicle. Officer McDonough parked the police vehicle directly in front of the Nissan.
¶ 6 As Officer McDonough exited his vehicle, he observed the front-seat passenger, whom he identified in court as defendant, exit the Nissan while holding a handgun. Officer McDonough shouted, "Get your hands up, " whereupon defendant turned, tossed the handgun into the Nissan, and fled westbound on foot. Officer McDonough chased defendant, who turned southward and threw another object to the ground during the chase. Officer McDonough testified this object was a semiautomatic magazine containing ammunition.
¶ 7 According to Officer McDonough, defendant eventually ran back toward the Nissan. Officer McDonough transmitted this information over his radio. Officer McDonough subsequently learned defendant was apprehended by Officer Sobczyk. When Officer McDonough returned to the location of the Nissan, he observed Officer Hernandez recover the handgun from the floorboard of the passenger seat of the Nissan. Officer McDonough also testified the handgun contained one round of ammunition, but was missing the clip. Officer McDonough further testified the magazine he recovered while chasing Defendant fit the handgun recovered from the Nissan.
¶ 8 Officer Sobczyk's testimony was substantially consistent with Officer McDonough's testimony. Officer Sobczyk additionally testified he secured the Nissan and radioed for backup when Officer McDonough pursued defendant. Officer Sobczyk received Officer McDonough's radio call regarding defendant running back toward the Nissan, and started walking toward an alley between Dante and Blackstone Avenues on 73rd Street. Shortly thereafter, defendant emerged from the alley and Officer Sobczyk placed him in custody.
¶ 9 Following the police testimony, the State introduced certified copies of two convictions: one for possession of a controlled substance and one for AUUW. The trial court admitted the convictions without objection. Defendant then moved for a directed finding. The trial court denied the motion.
¶ 10 Tenika Burns (Tenika), defendant's wife, testified that on June 13, 2009, she was driving herself, defendant, Otis Burns (Otis), and Larry Lester to a nightclub. During the drive, Otis received a telephone call, after which he directed Tenika to drive them to 73rd Street and Blackstone Avenue. While parked, a police vehicle parked in front of her vehicle.
¶ 11 According to Tenika, defendant and Lester exited her vehicle, but she did not observe defendant toss a handgun into her vehicle. While one police officer pursued defendant and Lester, another officer directed her and Otis to exit her vehicle and place their hands on the trunk. Tenika observed a police officer recover a handgun from her vehicle, which Otis identified as belonging to him. She then ...