Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County.No. 16 JD 02525 The
Honorable Patricia Mendoza, Judge, presiding.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice Ellis concurred
in the judgment and opinion.
1 After being arrested in possession of one firearm, the
minor defendant, Gabriel, age 15, was charged by the State on
November 11, 2016, in a three-count petition for wardship,
which alleged two counts of aggravated unlawful use of a
weapon (AUUW) and one count of unlawful possession of a
firearm (UPF). The two AUUW counts alleged: that he lacked a
Firearm Owner's Identification (FOID) card (count I); and
that he was under age 21 (count II). The UPF count alleged
that he was under age 18 (count III). After a bench trial,
the trial court found defendant guilty of all three counts,
but merged counts II and III into count I, the FOID-card
count. The court adjudged defendant to be a ward
of the court and sentenced him to 18 months of probation, as
well as to a 30-day commitment to the Illinois Department of
Juvenile Justice which was stayed so long as defendant did
not violate any of his probation terms.
2 On this appeal, defendant claims: (1) that his adjudication
for AUUW based on the lack of a FOID card must be vacated
because the State failed to prove he lacked a FOID card; and
(2) that his adjudications for AUUW and UPF based on his age
must be vacated because the State failed to prove his
3 The State concedes that, while its evidence established
that defendant did not present a FOID card to the arresting
officers, the State failed to offer any evidence that
defendant actually lacked a FOID card. This court has
previously held that the simple absence of the presentation
of a FOID card is insufficient to prove that a defendant
actually lacked a FOID card. In re Manuel M., 2017
IL App (1st) 162381, ¶ 15. Thus, we vacate the finding
of guilt on this count.
4 With respect to the other two counts, defendant argues that
the State failed to prove his age at the bench trial,
although defendant (1) stated his birth date at the
arraignment and stipulated to juvenile jurisdiction in this
case; (2) testified at the pretrial suppression hearing that
he was 15 years old; and (3) did not object at the bench
trial when the arresting officer testified that defendant was
15 years old. Our supreme court has previously held that, in
a juvenile adjudication, a trial judge in a bench trial does
not have to disregard testimony about age that occurred
during another proceeding in the same case. E.g.,
In re Brown, 71 Ill.2d 151, 155 (1978) (rejecting
"[t]he contention that because the proof of age occurred
in a different stage of the proceedings" the trial court
cannot consider it); In re Ephriam, 60 Ill.App.3d
848, 854-55 (1978). Thus, we do not find this argument
5 The parties agree that, if we affirm the findings of guilt
on the two age-based counts, we must vacate the less serious
offense under the one act, one crime rule. Thus, for the
reasons explained in more detail below, we vacate the finding
of guilt on count I, which was based on the lack of a FOID
card; we affirm the findings of guilt on counts II and III,
the two age-based counts; but we vacate count III, the UPF
count, under the one act, one crime rule.
6 Finally, defendant does not ask us to remand for
resentencing. Since the three counts were all based on the
possession of the same handgun at the same moment in time,
and since his sentence was and still is based on an AUUW
count, and since defendant does not seek a remand for
resentencing, we do not order it. He asks us only to correct
his sentencing order to reflect that he has 251 days of
credit for time served against his 30-day stayed commitment,
and the State joins in this request. Thus, we affirm his
adjudication for wardship and sentence, with the adjudication
based on AUUW grounded on age (count II) rather than lack of
a FOID card (count I), but we correct his sentencing order to
reflect 251 days of credit for time served against his 30-day
8 Although defendant challenges the sufficiency of the
evidence he does so only on the limited questions of proof of
(1) age and (2) lack of a FOID card. Thus, we describe the
facts focusing on these two issues.
9 On November 10, 2016, defendant was arrested on a street
corner in possession of one loaded handgun. Although he
challenged the search before the trial court, he does not
raise any issue on appeal concerning either the search or his
possession of the handgun.
10 One day later, on November 11, 2016, the State charged him
in a petition for adjudication of wardship alleging the three
counts, already described above.
11 At the arraignment, which was also on November 11, 2016,
defendant and his mother were present when his counsel stated
that defendant "stipulate[d] to juvenile court
jurisdiction." The trial court then asked defendant:
"THE COURT: Is your date of birth *** 2001?
counsel also stipulated to a finding of probable cause.
12 On December 6, 2016, defendant filed a motion to quash
arrest and suppress evidence on the ground that the stop and
search lacked reasonable suspicion and/or probable cause. As
we observed, defendant does not renew this issue on appeal,
so we discuss only the portions of the suppression hearing
that relate to the issues before us, namely, defendant's
age and lack of a FOID card.
13 At the suppression hearing on January 18, 2017, defendant
testified under oath that he was 15 years old:
"ASSISTANT PUBLIC DEFENDER (APD): How old are you,
the trial court denied defendant's motion to suppress,
the parties proceeded, without a break and on the same day,
to the bench trial. The bench trial was held before the same
trial judge who had just heard the suppression motion.
14 With respect to a FOID card, Officer Ghiloni,
of the arresting officers testified as follows:
"ASSISTANT STATE'S ATTORNEY (ASA): Did the minor
present a FOID card to you at any time?
OFFICER GHILONI: No."
15 Officer Ghiloni's partner, Officer Olson,
testified about what occurred after the minor was arrested
and transported to the police station. With respect to
defendant's age, he testified as follows:
"ASA: *** [W]hat did you do when you got to the police
OFFICER OLSON: I got the minor's name, date of birth,
mother's information-or parent's information,
ASA: And was this minor under the age of 18?
OFFICER OLSON: Yes.
ASA: And just to be clear, the minor that you were processing
at the station was the Minor Respondent, Gabriel ...