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People v. Wiggins

Court of Appeals of Illinois, First District, Fourth Division

December 8, 2016

PETER WIGGINS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County, No. 13-C6-60044; the Hon. Michele Pitman, Judge, presiding.


          Andrew S. Gable, of Chicago, for appellant.

          Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Gina DiVito, Assistant State's Attorneys, of counsel), for the People.

          Panel PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.



         ¶ 1 Generally, under Illinois law, an Illinois resident must possess a Firearm Owner's Identification (FOID) card to possess a firearm in Illinois. A non-Illinois resident may be exempt from the FOID card requirement, and thus may possess a firearm in Illinois, if, among other reasons, that person is "licensed" to carry that firearm in that person's home state. The first question in this appeal is whether a non-Illinois resident, whose home state allows him to possess a firearm without requiring him to first obtain a license, is deemed "licensed" in that other state for the purposes of the Illinois FOID card exemption. We hold that he is not. The second question is whether this result violates the second amendment to the United States Constitution, as applied to this individual. We hold that it does not.

         ¶ 2 Defendant Peter Wiggins was seen in possession of a handgun outside a bar in Chicago Heights. After police searched his car, they found a handgun inside. The State charged defendant with two counts of aggravated unlawful use of a weapon (AUUW) predicated on his lacking a FOID card-one for carrying the gun on his person without a FOID card, and one for possessing the gun in his car without a FOID card. 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012). After a bench trial, defendant was convicted of both counts.[1]

         ¶ 3 Wiggins, an army veteran and a resident of Texas, had a permit to possess the gun issued by the Fort Bliss Provost Marshal's Office and was authorized to possess his firearm in Texas. He argues on appeal that he thus qualified for an exception to the AUUW statute's FOID card requirement as a "[n]onresident" who is "currently licensed *** to possess a firearm in [his] resident state." See 430 ILCS 65/2(b)(10) (West 2012). He further argues that, if he does not fit within this exception to the FOID card requirement, the statute under which he was convicted violated the second amendment to the United States Constitution.

         ¶ 4 We affirm defendant's AUUW convictions. Even though the state of Texas did authorize defendant to possess a firearm in Texas, it did not first require a licensure procedure and issue him a license to do. Thus, he was not "licensed *** to possess" that firearm in Texas. Id. Nor does defendant's military permit qualify him for that exemption. Defendant thus cannot fit within this exception to the FOID card requirement. His convictions for possession of a firearm without a FOID card therefore stand.

         ¶ 5 We further find that the FOID card requirement incorporated into the AUUW statute under which defendant was convicted is a reasonable regulatory requirement that did not violate the second amendment. We thus affirm defendant's convictions in all respects.

         ¶ 6 I. BACKGROUND

         ¶ 7 Noel Tenayuca testified that, around 4 a.m. on November 15, 2012, he was at a bar in Chicago Heights. He stepped outside with a friend who was smoking and saw defendant walking back into the bar. Tenayuca said that, earlier, there had been a disagreement inside the bar, and defendant seemed "a little upset." Tenayuca said that, as defendant went in, he lifted his shirt, revealing a gun with a brown handle. Tenayuca thought it was the handle of the gun and told a bouncer or bartender that defendant had a gun. Tenayuca admitted that he only "vaguely remember[ed]" any of the events of that night.

         ¶ 8 Officer Benjamin Hofrichter, a Chicago Heights police officer, testified that he went to the bar after receiving a call about a man with a gun. When he pulled up, he saw defendant either getting into or out of a black SUV with Texas plates. Defendant shut the door to the car when Hofrichter pulled up. Hofrichter testified that defendant knelt and raised his hands in the air, and people outside the bar said that defendant was the person with the gun. Hofrichter patted defendant down and asked defendant if he had a gun. Defendant said he did not.

         ¶ 9 Hofrichter asked defendant for permission to search his car, and defendant said that, if Hofrichter could get into the car, he could search it. One of the bouncers at the bar loaned Hofrichter a "lockout kit" because he also worked as a tow truck driver. Hofrichter used the lockout kit to unlock defendant's car.

         ¶ 10 Hofrichter put his hand down on the driver's seat, which had a seat cover over it. He felt a hard object underneath the cover and discovered that it was a loaded, .45-caliber semiautomatic handgun with brown wooden grips. Hofrichter arrested defendant and later learned that the black SUV was registered to him. Defendant had a Texas driver's license on him.

         ¶ 11 The State played a video from the exterior surveillance cameras at the bar during trial, although that video is not contained in the record on appeal.

         ¶ 12 The State also introduced a certified record from the Illinois State Police showing that defendant had never been issued a FOID card. The State then rested.

         ¶ 13 Defendant moved for a directed finding, arguing that the evidence showed that defendant was a Texas resident, that Texas allowed him to possess a weapon without a permit, and thus he was a licensed nonresident exempt from the FOID card requirement. The court denied the motion.

         ¶ 14 Defendant testified that he was in the army reserves from 2007 to 2014 and was stationed at Fort Bliss, Texas. At the time of his arrest, he was inactive. Defendant testified that, on November 15, 2012, he was a resident of Texas but was visiting family in Chicago Heights. Defendant said that he had purchased the gun found in his car at the army base at Fort Bliss. Defendant identified the permit that he obtained to purchase the gun on the base.

         ¶ 15 On cross-examination, defendant testified that, if he had gone to another post, he would have had to register his firearms at that new post. Defendant acknowledged that the United States Army had issued the permit, not the state of Texas.

         ¶ 16 The permit was labeled, "FT BLISS WEAPON PERMIT" and indicated that it had been issued by the Fort Bliss "Provost Marshals Office." It was valid from May 25, 2011, the date it had been issued, until May 25, 2014. The permit listed two firearms, including a .45-caliber pistol that defendant identified as the gun he had in his car on November 15, 2012.

         ¶ 17 In his closing argument, defense counsel argued that "a valid permit or license from another state can substitute for the FOID card requirement" and, because defendant had a valid permit to carry a gun in Texas, he could not be found guilty of AUUW based on his lack of a FOID card. The State responded that defendant's military permit did not absolve him of liability because it was not issued by a state: "Provost marshal is not a state. It is part of the United States Army, which is not a state."

         ¶ 18 The court found defendant guilty of both counts of AUUW, noting that the military permit was "not a [FOID] card or the equivalent of it from the State of Texas."

         ¶ 19 Defendant filed a posttrial motion arguing that he was not guilty of AUUW because of his military permit. He noted that Texas does not issue permits that are equivalent to FOID cards and that only Illinois residents may apply for FOID cards. The State responded, "Just because Texas doesn't require a permit to own a weapon does not mean that that absolves a Texas resident from the FOID requirements in the state of Illinois."

         ¶ 20 The court denied defendant's motion, making the following findings:

"[Defendant] had-I don't have the document in front of me, but the exhibit that I was tendered was based upon him being authorized to carry a firearm while he was either owe [sic] a post or something to do with the national guard with regards to him being in the national guard. It is not a license to carry a firearm in any other state. It is not a license to possess a firearm. It indicates that he can carry it in his duties with regards to being in the national guard.
So, counsel, I respect your argument, but he could not carry that weapon in Illinois."

         ¶ 21 The court sentenced defendant to 30 months' felony probation. Defendant filed this appeal.

         ¶ 22 II. ANALYSIS

         ¶ 23 On appeal, defendant raises two challenges to his convictions. First, he claims that the State could not prove him guilty of AUUW beyond a reasonable doubt because he was allowed to carry a firearm in the state of Texas and via his military permit, each of which absolves him of the necessity to obtain a FOID card in Illinois. Second, he claims that the AUUW statute, both on its face and as applied to him, violated his right to bear arms under the second amendment. We first address defendant's sufficiency-of-the-evidence argument, then turn to his constitutional claims.

         ¶ 24 A. Nonresident Exception

         ¶ 25 Defendant was convicted of two counts of AUUW. Count II of the information charged defendant with possessing a weapon in his car without a FOID card. In Count V, the State charged defendant with carrying the firearm on his person while not possessing a FOID card. Relevant to this case, a person commits AUUW when he or she knowingly "[c]arries on or about his or her person or in any vehicle or concealed on or about his or her person *** any pistol, revolver, stun gun or taser or other firearm" and "the person possessing the firearm has not been issued a currently valid [FOID] Card." 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2012).

         ¶ 26 Defendant takes issue with the second of the two elements. He admits that he did not have a currently valid FOID card but claims that he was not required to obtain one. He relies on an exemption in the Firearm Owners Identification Card Act (FOID Card Act) for "[n]onresidents who are currently licensed or registered to possess a firearm in their resident state." 430 ILCS 65/2(b)(10) (West 2012). Defendant is a resident of Texas, which authorizes him to possess a weapon without obtaining a license. See Tex. Penal Code Ann. § 46.02(a) (West 2012). He also obtained a permit to possess a firearm while serving in the United States Army Reserves in Fort Bliss, Texas. According to defendant, because Texas ...

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