Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, Circuit No. 12-CM-2306. Honorable Victoria M. Kennison, Judge, Presiding.
Defendant's conviction for violating an order of protection by failing to turn over all firearms and ammunition in his home, including the firearms specified in the order, to local law enforcement officials was upheld over his contention that the evidence was insufficient to prove his guilt beyond a reasonable doubt in the absence of any testimony that defendant possessed any firearms on the date that a warrant to retrieve the firearms in defendant's possession was served, since the parties stipulated that the order was valid, it was served on defendant, deputies executed a warrant to take possession of defendant's firearms, including those specified in the order, and defendant failed to turn over any firearms; furthermore, defendant never raised the affirmative defense of impossibility or offered any evidence explaining why it would be impossible for him to comply with the order.
R. Christopher White, of State Appellate Defender's Office, of Elgin, for appellant.
James Glasgow, State's Attorney, of Joliet (Robert M. Hansen, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE O'BRIEN delivered the judgment of the court, with opinion. Presiding Justice Lytton and Justice Wright concurred in the judgment and opinion.
[¶1] The defendant, Thomas F. Costello, was found guilty of violation of an order of protection (720 ILCS 5/12-3.4(a)(1)(i) (West 2010)). The defendant appeals, arguing that the evidence was insufficient to prove him guilty beyond a reasonable doubt. We affirm.
[¶3] On August 2, 2012, an order of protection was entered against the defendant. That order provided in part that: " [The defendant] is ordered to turn over any and all firearms, including the following: 9 milmeter [ sic ], 30 odd [ sic ] six, several shotguns and other guns typically kept in [the defendant's] gunsafe [sic] in his home." On August 8, 2012, a sheriff's deputy went to the defendant's home to retrieve his firearms, and the defendant failed to turn over any weapons. On August 10, 2012, the defendant was charged by complaint with violation of an order of protection, a Class A misdemeanor, in violation of section 12-3.4(a)(1)(i) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-3.4(a)(1)(i) (West 2010)). The complaint alleged that after " having been served with or having acquired actual knowledge of the contents of an Order of Protection *** [the defendant] did intentionally commit an act which was prohibited by the Order of Protection, in that said defendant failed to surrender firearms and ammunition to local law enforcement."
[¶4] On November 5, 2012, a stipulated bench trial was held at which the parties stipulated to the following facts: A valid plenary order of protection was issued on August 2, 2012, the terms of which were in effect on the date of the alleged violation. The order required the defendant to " turn over any and all firearms." The defendant was served with the order of protection on August 6, 2012, by Deputy Rafter, and Deputy Rafter would testify that he did not observe any firearms or ammunition in the defendant's possession at the time of service. On August 8, 2012, Deputy Eiden executed a warrant permitting him to retrieve any firearms, ammunition, and Firearms Owner's Identification (FOID) card that the defendant might possess. Deputy Eiden would testify that the defendant relinquished an expired FOID card. Deputy Eiden would further testify that he observed no firearms or ammunition in the
defendant's gun safe, nor did he otherwise observe the defendant to be in possession of any firearms. The parties also stipulated to the admission of a receipt showing that the defendant had sold a firearm on February ...