People v. Henderson

12 N.E.3d 519

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Jaquan HENDERSON, Defendant–Appellant.

No. 1–11–3294.

Appellate Court of Illinois, First District, Second Division.

Dec. 17, 2013.

Rehearing Denied July 8, 2014.

Michael J. Pelletier, Alan D. Goldberg, and Peter Sgro, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Kathleen Warnick, and Carlos Vera, Assistant State's Attorneys, of counsel), for the People.

OPINION

Presiding Justice QUINN delivered the judgment of the court, with opinion.

¶ 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.

¶ 2 BACKGROUND

¶ 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).

¶ 9 ANALYSIS

¶ 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 maintains that the statute is unconstitutional and renders his conviction void.

¶ 11 We are mindful that nonconstitutional issues should be considered first and constitutional issues considered only if necessary to the resolution of this case. Coram v. State, 2013 IL 113867, ¶ 56, 375 Ill.Dec. 1, 996 N.E.2d 1057. However, after the parties filed their briefs in this appeal, the Illinois Supreme Court issued its opinion in People v. Aguilar, 2013 IL 112116, 377 Ill.Dec. 405, 2 N.E.3d 321 (petition for rehearing pending), which squarely resolves the constitutional issue presented here and disposes of one of the issues in this case. See People v. Jamesson, 329 Ill.App.3d 446, 451–52, 263 Ill.Dec. 736, 768 N.E.2d 817 (2002) (first addressing the constitutionality of the statute because, in the event that the statute is declared facially unconstitutional, the ultimate outcome would be to vacate defendant's conviction based upon that statute). In addition, defendant's acknowledged failure to challenge the aggravated UUW statute in the trial court does not preclude our review of the issue because a challenge to the constitutionality of a criminal statute may be raised at any time and is subject to de novo review. People v. Coleman, 409 Ill.App.3d 869, 877, 350 Ill.Dec. 515, 948 N.E.2d 795 (2011).

¶ 12 In People v. Aguilar, 2013 IL 112116, ¶ 22, 377 Ill.Dec. 405, 2 N.E.3d 321, the supreme court held, as did the United States Court of Appeals for the Seventh Circuit in Moore v. Madigan, 702 F.3d 933 (7th Cir.2012), that on its face, section 24–1.6(a)(1), (a)(3)(A) violates the right to keep and bear arms, as guaranteed by the second amendment to the United States Constitution. In so holding, the supreme court observed that several panels of the appellate court have considered the constitutionality of section 24–1.6(a)(1), (a)(3)(A) and uniformly held that it passes constitutional muster because it “prohibits only the possession of operable handguns outside the home. ” (Emphasis in original.) Aguilar, 2013 IL 112116, ¶ 18, 377 Ill.Dec. 405, 2 N.E.3d 321 (and cases cited therein). However, the supreme court found persuasive the analysis set forth in Moore, which noted that the second amendment guarantees not only the right to “keep” arms, but also the right to “bear” them, and that these rights are not the same, and the conclusion in Moore that “ ‘[t]he Supreme Court has decided that the [second] amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.’ ” Aguilar, 2013 IL 112116, ¶¶ 19–20, 377 Ill.Dec. 405, 2 N.E.3d 321 (quoting Moore, 702 F.3d at 942 ). In light of that holding, the State concedes on appeal that defendant's conviction under section 24–1.6(a)(1), (a)(3)(A) cannot stand and we reverse it.

¶ 13 That, however, does not end our inquiry. We note that the trial court also found defendant guilty of aggravated UUW as alleged in count V based on his possession of a firearm without a valid FOID card, under section 24–1.6(a)(2), (a)(3)(C). This section was unaffected by Aguilar, and, as noted, the trial court did not impose a sentence on defendant's conviction thereon. Under these circumstances, we have the authority to remand the cause for sentencing on that conviction (count V) pursuant to Illinois Supreme Court Rule 615(b)(2), which provides that on appeal the reviewing court may “set aside, affirm, or modify any or all of the proceedings subsequent to or dependent upon the judgment or order from which the appeal is taken.” As our supreme court explained in People v. Dixon, 91 Ill.2d 346, 353–54, 63 Ill.Dec. 442, 438 N.E.2d 180 (1982) :

“Since the appeal was properly before the appellate court with regard to defendant's

...