THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARCUS D. GROSS, Defendant-Appellant.
No. 2-23-0017
APPELLATE COURT OF ILLINOIS SECOND DISTRICT
Order filed April 19, 2024
2024 IL App (2d) 230017-U
Appeal from the Circuit Court of McHenry County. No. 21-CF-369. Honorable James S. Cowlin, Judge, Presiding.
JUSTICE MULLEN delivered the judgment of the court.
Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
¶ 1 Held: Defendant‘s conviction of possession of firearm ammunition without a FOID card must be vacated pursuant to one-act, one-crime doctrine; defendant‘s conviction of unlawful possession of a weapon by a felon does not offend second amendment as applied to defendant.
I. INTRODUCTION
¶ 2 Following a bench trial in the circuit court of McHenry County, defendant, Marcus Gross, was convicted of unlawful possession of a weapon by a felon (
¶ 4 Before proceeding further, we note our agreement with the State‘s concession that defendant‘s convictions of unlawful possession of a weapon by a felon and misdemeanor possession of firearm ammunition without a FOID card cannot both stand under the one-act, one-crime doctrine, as both are based on the possession of the same 9-millimeter bullets. See People v. Quinones, 362 Ill. App. 3d 385, 397 (2005). This doctrine holds that multiple offenses may not be based upon “precisely the same physical act.” People v. Johnson, 237 Ill. 2d 81, 97 (2010). “Thus, if a defendant is convicted of two offenses based upon the same single physical act, the conviction for the less serious offense must be vacated.” Id. Since we affirm defendant‘s conviction of unlawful possession of a weapon by a felon, his conviction based on not having a FOID card must be vacated. We further note that this moots defendant‘s second argument concerning the constitutionality of the Firearm Owner‘s Identification Act. See People v. Scott, 2016 IL App (1st) 141456, ¶ 32. Accordingly, we will confine our analysis to defendant‘s first argument.
II. BACKGROUND
¶ 5 ¶ 6 Defendant‘s bench trial commenced on October 20, 2022. The State first called Officer Nicholas Clesceri of the McHenry County Sheriff‘s Office. Clesceri testified that on May 18,
¶ 7 Clesceri testified that he and Sosnowski approached the car. Defendant was in the driver seat and Nicole Evertsen was in the passenger seat. They noted an odor of “raw or fresh cannabis” emanating from the car. The officers also noted “a medical cannabis container that was open in the center console with ashes in it.” They asked the occupants to step out of the vehicle and then conducted a search. In the front portion of the car, they located a wallet that contained defendant‘s Social Security card and a key for a safe. There was a “small SentrySafe” on the back seat. Clesceri could smell an odor of fresh cannabis coming from the safe. He unlocked the safe with the key found in defendant‘s wallet. Inside the safe, Clesceri found “numerous empty cannabis packages that contained little trace amounts of cannabis and residual amount of cannabis in the safe itself” and “a single metal magazine for a 9-millimeter pistol, which contained three 9-millimeter live rounds.” While speaking with defendant, defendant stated that he “believed” he had a felony conviction but that it may have occurred while he was a juvenile.
¶ 8 Defendant was placed in handcuffs following the discovery of the ammunition, and he was read his Miranda warnings. Clesceri asked “where the magazine came from.” Defendant replied that “he was holding it for a friend or holding it for someone.” Defendant admitted that he did not have a FOID card. Defendant was then transported to the McHenry County Jail.
¶ 9 On cross-examination, Clesceri agreed that he had no knowledge that defendant ever touched the magazine or how it got into the safe. He also did not know how the key to the safe got into defendant‘s wallet. On redirect-examination, he stated that the wallet where the key was found was of the sort that a man would carry.
¶ 10 The State next called Officer Steve Howard, a corrections officer with the McHenry County Sheriff‘s Department. He testified that all telephone calls made by inmates are recorded. He provided to the State‘s Attorney‘s Office a recording of all calls made by defendant between May 18, 2021, and May 21, 2021. On cross-examination, Howard acknowledged that in one of the calls, defendant referred to the safe recovered from the vehicle as “my safe.”
¶ 11 The State admitted a certified copy of defendant‘s 2018 felony conviction of possession of a stolen vehicle and rested. Defendant then called Avalon Gross, defendant‘s brother. Avalon testified that he has a FOID card. The ammunition recovered from defendant‘s car belonged to Avalon. Defendant had given Avalon a ride home from the range “about two days prior” to defendant‘s arrest. Avalon stated that he owns a 9-millimeter pistol that uses the type of rounds found in defendant‘s vehicle. An emergency arose, and Avalon had to leave. He left the ammunition in the safe in his brother‘s car. Defendant never touched the magazine. He placed the ammunition in the safe while in the parking lot of the shooting range, and he left the gun in the motel room where defendant was staying.
¶ 12 Defendant then testified. He stated that two days before he was arrested, Avalon called him because he needed a ride from the shooting range in Mokena. Defendant agreed to pick him up. When defendant got to the range, Avalon placed a magazine inside the safe and told defendant not to touch it. Avalon locked the safe and gave defendant the key. They drove to the motel in Crystal Lake where defendant was staying. Avalon had to leave and left his gun in defendant‘s
¶ 13 On cross-examination, defendant testified that he kept a safe in the car to lock up his jewelry. He had been staying at the motel in Crystal Lake for about four days at the time of his arrest. He acknowledged that the wallet the police recovered from his car belonged to him. He knew that the bullets were in the safe.
¶ 14 Defendant then rested, and the State presented no rebuttal. The trial court found defendant guilty of all counts. It first noted that defendant had been convicted of “receiving or possession of a stolen vehicle” in 2018, which was a felony. It then observed that it was the State‘s burden to prove beyond a reasonable doubt that defendant knew of the presence of the ammunition and that he had immediate and exclusive control over the area where it was found. It stated that “the facts are not really in dispute.” It found that Avalon‘s ownership of the ammunition did not overcome the fact that it was in defendant‘s possession. Thus, the court found defendant guilty of unlawfully possessing the ammunition. It then noted that defendant did not have a FOID card and found him guilty on that count as well. Finally, it found defendant guilty of driving while his license was suspended. Defendant now appeals.
III. ANALYSIS
¶ 15 ¶ 16 Given the State‘s concession that defendant‘s conviction of possession of firearm ammunition without a FOID card must be vacated pursuant to the one-act, one-crime doctrine, we are left to consider one issue: whether the statute criminalizing the unlawful possession of a weapon by a felon (
¶ 17 The constitutionality of a statute presents a question of law subject to de novo review. People v. Devenny, 199 Ill. 2d 398, 400 (2002). Statutes are presumed constitutional, and the burden to establish a statute‘s invalidity is on the party raising the challenge. People v. Howard, 2017 IL 120443, ¶ 24. A court has a duty to construe a statute, if reasonably possible, so as to uphold its validity. People v. Chairez, 2018 IL 121417, ¶ 15. Defendant raises an as-applied challenge to the statute‘s constitutionality. An as-applied challenge requires a showing that the statute violates the constitution as it applies to the facts and circumstances of the challenging party. People v. Garvin, 219 Ill. 2d 104, 117 (2006).
¶ 18 The State asserts that defendant has forfeit this issue. It is true that defendant is raising this argument for the first time before this court. While a facial constitutional challenge avoids procedural bars because the statute is alleged to be void and unenforceable under any set of facts, (Garvin, 219 Ill. 2d at 117), an as-applied challenge is dependent on the particular circumstances and facts of the individual defendant or petitioner. People v. Thompson, 2015 IL 118151, ¶ 37. Regarding the latter, courts have held that “it is paramount that the record be sufficiently developed in terms of those facts and circumstances for purposes of appellate review.” Id. Hence, where the facts underlying an as-applied challenge do not appear in the record, the challenge is forfeited despite being constitutional in nature. See Id. ¶¶ 38-39. In some limited circumstances, an as-applied challenge may be raised on appeal for the first time if the record is sufficiently developed to support the challenge. People v. Harris, 2018 IL 121932, ¶ 43. The State asserts that defendant has forfeited his claim that he is a nonviolent felon because, “[o]ther than naming the offense and
¶ 19 Turning to the merits of this appeal, defendant argues that the application of section 24-1.1 of the Criminal Code of 2012 (Code) (
¶ 20 In Bruen, 597 U.S. at 17-18, the Supreme Court set forth a new test for evaluating laws that potentially implicate the second amendment. It began by recognizing that, since its decision in District of Columbia v. Heller, 554 U.S. 570 (2008), which held that the second amendment confers “an individual right to keep and bear arms” (Id. at 595), lower courts had developed a two-pronged analysis to determine whether statutes regulating firearms ran afoul of the second
¶ 21 The Bruen Court rejected the means-ends balancing contemplated by the second step of this analysis. Bruen, 597 U.S. at 19. It left the first prong intact. Id. (“Step one of the predominant framework is broadly consistent with Heller, which demands a test rooted in the Second Amendment‘s text, as informed by history.“). However, it articulated a new second prong: “the government must affirmatively prove that its firearms regulation is part of the historical tradition that delimits the outer bounds of the right to keep and bear arms.” Id. Thus, a court must first engage in a textual inquiry to determine if the conduct sought to be regulated falls within the ambit of the second amendment and, if it does, the court must then consider whether the regulation is “consistent with the Nation‘s historical tradition of firearm regulation.” Id. at 24. Applying this test, we conclude that section 24-1.1 does not violate the second amendment.
¶ 22 We preliminarily note that the Supreme Court has expressly disavowed any intent to disturb laws restricting a felon‘s access to firearms. In Heller, the majority stated, “Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons ***.” Heller, 554 U.S. at 626; see also McDonald, 561 U.S. at 786; Bruen, 597 U.S at 81 (Kavanaugh, J., joined by Roberts, C.J., concurring); Bruen, 554 U.S. at 72
¶ 23 Turning to the first prong of the test set forth in Bruen, we must consider whether the plain language of the second amendment is implicated by section 24-1.1. Defendant is a felon. The second amend protects only “the right of the people to keep and bear Arms.” (Emphasis added.)
¶ 24 Defendant counters that Heller stated that the term “the people” “unambiguously refers to all members of the political community, not an unspecified subset.” Heller, 554 U.S. at 580 (quoting United States v. Verdugo-Urquidez, 494 U.S. 259, 265 (1990)). We note that this statement was made in a context that was very different from that currently before this court. In this section of Heller, the court was considering whether the second amendment—in light of its prefatory statement of purpose concerning a “well regulated Militia“—conferred a right upon individual citizens rather than simply “protecting only the right to ‘keep and bear Arms’ in an organized militia.” Id. at 580-81. The court was not addressing whether an individual could remove oneself from the class of “the people” by having oneself adjudicated a felon. Thus, although this passage provides some, indirect support for defendant‘s position, we attach more significance to the Supreme Court‘s directly on-point statements, such as the following from Heller, 554 U.S. at 635, that the second amendment protects “the right of law-abiding, responsible citizens ***.” We therefore hold that “the people” referenced in the second amendment are law-abiding citizens.
¶ 25 We further note that defendant‘s argument on this point is largely inconsistent with the jurisprudence of this state. Most recently, we upheld section 24-1.1 against a similar challenge in People v. Echols, 2024 IL App (2d) 220281-U, ¶ 142. Similarly, in People v. Rush, 2014 IL App (1st) 123462, ¶ 23, the court held that the defendant did not satisfy the first prong of the test in effect prior to Bruen (which was ultimately incorporated into the Bruen analysis) in that possession of a weapon by a felon was not conduct falling within the scope of the second amendment, explaining: “As our analysis has shown, the second amendment does not extend to firearm
¶ 26 Moreover, we reject defendant‘s attempt to draw a distinction between violent felons and nonviolent felons for second amendment purposes, which brings us to the second prong of the test set forth in Bruen. Defendant argues that the section 24-1.1 of the Code, as applied to him, is not “analogous to and consistent with historically accepted restrictions on firearms possession.” He asserts, “[T]here is no historical tradition for prohibiting non-violent persons from possessing firearms.” Defendant points out that the State must establish that such historical precedent exists. Bruen, 597 U.S. at 17. Further, the State may not rely on “historical outliers” to meet this burden. Id. at 30. The Court emphasized that “analogical reasoning under the Second Amendment is neither a regulatory straightjacket [sic] nor a regulatory blank check.” Id. Assuming, arguendo, that defendant‘s conduct fell within the scope of the second amendment, section 24-1.1 nevertheless passes constitutional muster.
¶ 28 We note defendant, after acknowledging that “the majority of the cases have found that the federal statute [banning felons from possessing firearms] is supported by the historical tradition of
¶ 29 In sum, we hold that as a felon, defendant is not a member of the class of individuals protected by the second amendment. That defendant‘s underlying felony did not involve violence is immaterial, as the Supreme Court drew no such distinction in Heller, McDonald, or Bruen. Moreover, assuming arguendo that he is a member of that class, section 24-1.1 is consistent with
IV. CONCLUSION
¶ 30 ¶ 31 In light of the foregoing, we vacate defendant‘s conviction of possession of firearm ammunition without a FOID card and otherwise affirm.
¶ 32 Vacated in part and affirmed in part.