delivered the opinion of the court:
Following a bench trial defendant, Larry Austin, was found guilty of aggravated unlawful use of a weapon. Based on defendant’s previous felony convictions, he was sentenced as a Class 2 felon to incarceration in the Illinois Department of Corrections for 36 months. Defendant appeals contending that his conviction should be reversed because the State failed to prove him guilty beyond a reasonable doubt. He also raises two arguments regarding the constitutionality of the aggravated unlawful use of a weapon (aggravated UUW) statute: (1) the statute violates due process because it requires no culpable mental state, and thereby allows a felony conviction based on innocent conduct; and (2) the penalty for aggravated unlawful use of a weapon under section 24 — 1.6 of the Criminal Code of 1961 (720 ILCS 5/24— 1.6 (West 2002)) is unconstitutionally disproportionate to the penalty for reckless discharge of a firearm under section 24 — 1.5 (720 ILCS 5/24 — 1.5 (West 2002)).
SUFFICIENCY OF EVIDENCE
The factual background of the instant case will be discussed in the context of the defendant’s challenge to the sufficiency of the evidence. In resolving a challenge to the sufficiency of the evidence, a reviewing court must view all the evidence in the light most favorable to the prosecution and affirm the conviction if “any rational trier of fact could have found the essential elements of the crime beyond a re asonable doubt.” (Emphasis omitted.) Jackson v. Virginia,
The record reflects that Officer Carillo observed a car with five individuals drive through a red light at Roosevelt Road and Kedzie Avenue in the City of Chicago, on February 25, 2003, at approximately 2:30 a.m. Officer Carillo, with his partner, pursued the car with the emergency lights and spotlight activated. The car did not stop, but continued driving southbound on Kedzie, eastbound on 13th Street and northbound in an alley east of Kedzie, stopping in a vacant parking lot at 1221 South Kedzie. After approaching the car, Officer Carillo ordered defendant, who was in the passenger’s seat, to raise his hands. As defendant complied, Carillo, located a few feet from the car, observed through the closed window a handgun in defendant’s right hand. At the point when defendant’s hands were at chest level, Carillo observed defendant drop the gun to the floor of the car. Carillo ordered defendant to exit the car, placed him under arrest, and handcuffed him. Carillo recovered the uncased Baretta handgun, with 1 live round in the chamber and 12 rounds in the 15-round magazine, from the floor of the car.
In addressing defendant’s challenge to the sufficiency of the evidence, we are mindful that it is for the trier of fact, in this case the trial judge, to determine the credibility of the witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. People v. Campbell,
Defendant argues that Officer Carillo’s testimony is preposterous and incongruous. In support of that argument, defendant notes that, according to Carillo’s testimony, “during the period in which the marked police car with its lights on was following the car in which he was riding (approximately one minute), Mr. Austin made no attempt to stash the handgun under the seat or in the glove compartment of the car. Instead, knowing he faced a felony charge for possession of the weapon, Mr. Austin instead chose to hold the handgun in his hand. Then, when the officer told him to raise his hands, Austin raised the weapon to the very point where Carillo was certain to see it — but only that high — before dropping the gun, in Carillo’s plain view, to the floor of the car.”
It would be speculation to try to determine why Mr. Austin made no attempt to stash the handgun. It could be speculated that Mr. Austin was considering using the loaded weapon on Officer Carillo, but then decided to drop it. Of course, that would be pure speculation, which we will not consider. We are, however, mindful that in reviewing the sufficiency of the evidence, “great deference should be given to trial judges when they hear the evidence and observe the witnesses.” People v. Hernandez,
In the instant case, the experienced trial judge was convinced beyond a reasonable doubt of defendant’s guilt. In order to “sustain a conviction, it is the trier of fact, not this court, who must be convinced of defendant’s guilt beyond a reasonable doubt.” People v. Smith,
We note that in support of the challenge to the sufficiency of the evidence, defendant relies on People v. Cunningham,
Unlike the police officer who testified in Cunningham, in the instant case, Officer Carillo recalled the events of February 5, 2003, surrounding the arrest of defendant. He testified that he and his partner pulled over a car which had run a red light at Kedzie and Roosevelt. He further explained that by looking through the window he observed a handgun in defendant’s right hand, which defendant dropped to the floor. There was no significant impeachment of Officer Carillo on cross-examination. Rather, defendant asks us to simply retry the case and declare Carillo’s version of events preposterous and incongruous. Based on the record, we find that the State proved defendant guilty of aggravated UUW beyond a reasonable doubt. We refuse to speculate as to why defendant did not stash the handgun before Officer Carillo approached. As previously noted, perhaps defendant was considering using the loaded handgun, but that is speculation, which this court will not consider.
SUBSTANTIVE DUE PROCESS
Defendant contends the aggravated unlawful use of a weapon statute (720 ILCS 5/24 — 1.6 (West 2002)) violates substantive due process because it requires only that an individual knowingly carry or conceal a firearm and that one of the aggravating factors be present. 720 ILCS 5/24 — 1.6(a)(1) (West 2002). In support of that argument, defendant notes that “no culpable intent was required for the section under which Mr. Austin was convicted. *** It thus potentially punishes as a felony, wholly innocent conduct, contrary to the requirements of due process.”
Defendant was convicted under section 24 — 1.6(a)(l)(3)(A), which provides “the firearm possessed was uncased, loaded and immediately accessible at the time of the offense.” 720 ILCS 5/24 — 1.6 (a)(l)(3)(A) (West 2002). Defendant recognizes that the appellate court has previously ruled that the aggravated unlawful use of a weapon statute satisfies the requirements of substantive due process in the context of its requirement of a “knowing” mental state in People v. Marin,
When, as in the instant case, the statute does not affect a fundamental constitutional right, the rational basis test is used to determine whether the statute complies with substantive due process. In re K.C.,
In Marin, Grant, McGee, and Pulley, as in the instant case, the defendants relied on three Illinois Supreme Court decisions which held that because a statute did not require a culpable mental state, it could potentially punish innocent conduct, thereby failing to establish a rational relationship for its intended purpose: People v. Wright,
The statute in question in the instant case is significantly different from the statutes addressed by the Illinois Supreme Court in the above-noted cases. Regarding those cases, we agree with McGee:
“There is a common theme running through the cases cited by the defendant. Each statute had the capacity to sweep in innocent people who could reasonably believe they were engaging in lawful activity. That is, the acts that comprised the offenses were not necessarily criminal in nature. The statutes did not accomplish their legislative purpose.” McGee,341 Ill. App. 3d at 1036 .
The purpose of the aggravated UUW statute and the rational relationship of the statute to its intended purpose were clearly articulated in McGee:
“This statute is, in effect, self-defining. Knowingly possessing a loaded, readily accessible, uncased weapon in a car, or carrying it concealed, is criminal conduct. Period. Contrary to the defendant’s contention, the goal of the aggravated UUW statute was not merely to limit possession of weapons by members of street gangs and organized crime figures. Its purpose was to make communities in this state safer and more secure for their inhabitants. The statute is rationally related to that legitimate goal. Each of the aggravating factors in the statute is a circumstance that belies innocent conduct.” McGee,341 Ill. App. 3d at 1037 .
In the instant case, the aggravated UUW statute reflects a rational relationship to its intended purpose to impose greater punishment for conduct that creates “inherent dangers to police officers and the general public, even if the person carrying the weapon has no criminal objective.” Pulley,
PROPORTIONATE PENALTIES
The proportionate penalties clause of the Illinois Constitution provides: “All penalties shall be determined both according to the seriousness of the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. The Illinois Supreme Court has recognized the following three violations of the proportionate penalties clause that may occur:
“First, the proportionate penalties clause is violated where the punishment for a particular offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral sense of the community. [Citations.] Second, the proportionate penalties clause is violated where similar offenses are compared and conduct that creates a less serious threat to the public health and safety is punished more harshly. [Citations.] Third, the proportionate penalties clause is violated where identical offenses are given different sentences.” People v. Davis,177 Ill. 2d 495 , 503-04 (1997).
In the instant case, the defendant contends the aggravated UUW statute implicates the second cross-comparison violation because “it punishes less culpable conduct more severely than the reckless discharge of a firearm statute.” The Illinois Supreme Court has established the following two-step inquiry when considering an alleged proportionate penalties violation by cross-comparison: (1) whether the offenses share a common statutory purpose such that comparative proportionality review is appropriate; and (2) if the purposes are related, whether the offense with the harsher penalty is less serious than the offense with the less severe penalty. Davis,
The defendant states in his brief that “Since the two statutes have similar legislative purposes, the court must determine whether the offense with the harsher penalty, aggravated UUW, is less serious than the offense with the less severe penalty, reckless discharge of a firearm.” We need not address that argument, however, because we follow the reasoning articulated in People v. Washington,
“Both statutes in question here are a result of our legislature’s acknowledgment of the dangers associated with firearms. However, this generality does not overcome the fact that the aggravated UUW statute and the reckless discharge of a firearm statute have distinctly different legislative purposes: the aggravated UUW statute to prevent persons from knowingly carrying loaded, concealed, and easily accessible weapons on their persons or in the passenger compartments of their vehicles; the reckless discharge of a firearm statute to prevent the reckless, not knowing or intentional, discharge of a firearm out of a motor vehicle. Quite simply, one (aggravated UUW) is targeted at possession of a weapon and the other (reckless discharge of a firearm) is targeted at use of a weapon.” Washington,343 Ill. App. 3d at 898 .
In Washington, the court compared the history, language and the legislative purposes of the aggravated UUW statute and the reckless discharge of a firearm statute. Washington,
We note that, in addition to Washington, this court has addressed the proportionality argument regarding aggravated UUW three other times. In People v. Kelly,
CONCLUSION
For the reasons previously discussed, we reject defendant’s challenge to the sufficiency of the evidence. The aggravated UUW statute satisfies the rational basis test and does not violate substantive due process. Comparative proportionality review is inappropriate because the aggravated UUW statute and the reckless discharge of a firearm statute were enacted for different legislative purposes.
The judgment of the trial court is affirmed.
Affirmed.