People v. Box , 2024 IL App (4th) 230649-U ( 2024 )

NOTICE 2024 IL App (4th) 230649-UThis Order was filed under
FILED
Supreme Court Rule 23 and is May 29, 2024
NO. 4-23-0649
not precedent except in the Carla Bender
limited circumstances allowed 4th District Appellate
under Rule 23(e)(1).
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
Plaintiff-Appellee, ) Circuit Court of
v. ) Winnebago County
REZA L. BOX, ) No. 21CF274
Defendant-Appellant. )
) Honorable
) Debra D. Schafer,
) Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Cavanagh and Justice Lannerd concurred in the judgment.
ORDER
¶1 Held: The appellate court vacated defendant’s conviction for possession of a defaced
firearm and remanded for further proceedings where the State failed to present
evidence that defendant knew about the defacement of the firearm he possessed.
The court further held that (1) the trial court did not err in denying a motion to
suppress evidence, (2) the evidence was sufficient to convict defendant of
possession of a controlled substance, (3) defendant was not entitled to raise a
necessity defense against the unlawful use of a weapon by a felon charge, and
(4) defendant’s conviction for unlawful use of a weapon by a felon did not violate
the second amendment to the United States Constitution (U.S. Const., amend. II).
¶2 Following a bench trial, defendant, Reza L. Box, was found guilty of possession of
cannabis with intent to deliver (720 ILCS 550/5(d) (West 2020)) (count IV), possession of a
firearm with a defaced serial number (720 ILCS 5/24-5(b) (West 2020)) (count V), unlawful use
of a weapon by a felon (UUWF) (720 ILCS 5/24-1.1(a) (West 2020)) (count VI), and possession
of a controlled substance (720 ILCS 570/402(c) (West 2020)) (count VII). The trial court found
defendant not guilty of being an armed habitual criminal (AHC) (720 ILCS 5/24-1.7(a) (West
2020)) (count I) and two counts of armed violence (720 ILCS 5/33A-2(a) (West 2020)) (counts II
and III). Defendant appeals, arguing (1) the court erroneously denied his motion to suppress
evidence, (2) the State failed to prove beyond a reasonable doubt that defendant committed
possession of a controlled substance and possession of a firearm with a defaced serial number,
(3) the court erroneously determined that defendant was not entitled to a necessity defense, and
(4) defendant’s UUWF conviction violates the second amendment to the United States
Constitution (U.S. Const., amend. II). We vacate defendant’s conviction for possession of a firearm
with a defaced serial number and remand for further proceedings on that count but affirm on all
other grounds.
¶3 I. BACKGROUND
¶4 Defendant was charged with the aforementioned offenses following his February
13, 2021, arrest. On that date, officers observed a handgun with a filed-off serial number on the
floorboard of the vehicle defendant was in. After detaining defendant, officers also located cocaine
and marijuana in the vehicle.
¶5 A. Motion to Suppress
¶6 On April 29, 2021, defendant filed a “motion to quash arrest & suppress physical
evidence.” Therein, defendant requested the trial court “suppress physical evidence seized” from
his vehicle because the arresting officers lacked probable cause or reasonable suspicion to detain
him.
¶7 The trial court held a hearing on the motion to suppress on July 13, 2021. Sergeant
Greg Yalden of the Rockford Police Department testified to the following. On February 13, 2021,
Yalden was patrolling “the area of the Aragona Club” in Rockford in an unmarked car. As Yalden
was driving, he observed an individual he knew “from prior contact” as Von Johnson leaning into
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the front driver’s window of a gray Nissan. Johnson was speaking with defendant, who was sitting
in the driver’s seat of the Nissan. Johnson saw Yalden and immediately walked toward a nearby
white Pontiac. The Pontiac, however, drove away. As Yalden observed this, he saw a bulge in
Johnson’s front left pocket. Yalden drove around the block and returned to the scene. As Yalden
rounded a corner, he saw Johnson sitting in the front passenger seat of the Nissan. Defendant was
still sitting in the driver’s seat. Both then exited the Nissan, walked toward a Hyundai Santa Fe
that was parked nearby, and sat in the back seat before the Hyundai drove away. Yalden did not
see defendant holding anything, and he could not tell whether Johnson still had an object in his
pocket.
¶8 After the Hyundai drove away, Yalden requested other officers to meet him at the
parked Nissan to see whether anything was discarded and to investigate why defendant and
Johnson quickly left the vehicle. Before backup arrived, Yalden parked and walked to the Nissan.
Yalden shined his light through the front passenger window and observed in plain view an uncased
handgun on the passenger floorboard with its serial number filed off. The gun was next to a black
fanny pack. After other officers arrived, they conducted surveillance on the vehicle, waiting for
defendant and Johnson to return to detain them for an uncased and defaced firearm. About 19
minutes later, the Hyundai returned and pulled up behind the Nissan. Defendant exited the rear
seat on the driver’s side of the Hyundai and got into the driver’s seat of the Nissan. When defendant
started the vehicle, Yalden and the officers activated their vehicles’ lights, converged, and took
defendant into custody. Yalden testified that, although the gun was found on the passenger-side
floorboard where Johnson had been sitting, defendant was the driver and the only occupant of the
vehicle where the handgun was found.
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¶9 Officer Jeremiah Cizerle of the Rockford Police Department testified next, and his
testimony was substantially like Yalden’s. Cizerle noted that upon arriving at the scene, he
observed a parked Nissan. Yalden directed him to the front passenger-side floorboard of the
vehicle, where he saw a black handgun next to a black fanny pack. Cizerle observed that the
firearm’s serial number was scratched off. Cizerle testified that officers surveilled the Nissan until
another vehicle approached the area. After defendant got out of that vehicle, he entered the Nissan
and was inside for 30 to 40 seconds before he turned on the headlights. At that time, officers
activated their emergency lights and initiated a traffic stop. When defendant exited the Nissan, he
was wearing the fanny pack that had been next to the firearm on the floorboard. After defendant
was taken into custody, officers searched the vehicle and saw that the firearm had been moved
completely under the passenger seat.
¶ 10 The trial court denied defendant’s motion to suppress. The court found that
defendant was the sole occupant of a vehicle with a firearm that had been on the floorboard, which
officers saw was uncased and had a defaced serial number. The court noted that it was illegal to
transport the firearm while uncased and to possess a firearm with a defaced serial number.
Accordingly, the court found that officers had reasonable suspicion to stop defendant.
¶ 11 B. Bench Trial on AHC and UUWF
¶ 12 On October 7, 2021, defendant filed a motion to sever the AHC and UUWF counts
from the remaining counts, and the trial court granted that motion on October 21, 2021.
¶ 13 A bench trial on the AHC and UUWF counts commenced on January 19, 2022. The
State first called Yalden, whose testimony was substantially like his testimony from the motion to
suppress hearing. Yalden testified, inter alia, that he was patrolling the area near the Aragona at 1
a.m. and saw Johnson talking to defendant, who was in a Nissan. After defendant and Johnson left
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in a nearby Hyundai, Yalden approached the Nissan and shined a light through the front passenger
window. Yalden observed a handgun in plain view next to a black fanny pack on the passenger-side
floorboard. Yalden could “see plainly” that the handgun’s serial number had been scratched or
filed off. After additional officers arrived, they conducted surveillance on the Nissan until the
Hyundai returned. Defendant exited the rear driver’s door of the Hyundai and entered the Nissan.
Once defendant got into the Nissan, the officers converged and arrested defendant. On
cross-examination, Yalden acknowledged that “there were a lot of people” outside the Aragona
and that it was busy.
¶ 14 Cizerle’s testimony also mirrored his testimony from the motion to suppress
hearing. Cizerle testified, inter alia, that he met with Yalden at the Nissan and, upon looking
inside, observed a black handgun on the front passenger-side floorboard, inches away from a black
fanny pack. The serial number of the handgun was scratched off, and the barrel was facing the
passenger-side door. After surveilling the Nissan for about 20 minutes, another vehicle arrived,
which defendant exited before getting into the driver’s seat of the Nissan. Cizerle “observed the
headlights come on, the vehicle came on,” and the officers activated their emergency lights and
initiated a traffic stop. Defendant exited the Nissan and was wearing the black fanny pack that had
been on the passenger-side floorboard. Defendant was detained, and when Cizerle informed
defendant that officers had located a gun, defendant said the gun was Johnson’s. Upon searching
the Nissan, Cizerle observed that the fanny pack was no longer there, and the gun was moved to
underneath the passenger seat. The gun was a loaded Taurus G3 9-millimeter with its serial number
scratched off. The handgun was admitted into evidence. The State also introduced photographs of,
inter alia, the interior of the Nissan and the handgun as it appeared under the passenger seat when
officers located it after defendant’s arrest.
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¶ 15 Detective Nicholas Weber testified that he was a crime scene detective who assisted
in the recording and processing of evidence. Weber test-fired the handgun and found it was
operational. Weber attempted to collect forensic evidence from the firearm, such as DNA or
fingerprints, but he was unable to develop any latent evidence of comparable value.
¶ 16 The State introduced certified copies of defendant’s prior convictions for
possession of a firearm by a felon, aggravated unlawful use of a weapon, residential burglary, and
conspiracy to commit armed robbery.
¶ 17 Defendant testified in his own defense to the following. On February 13, 2021, he
went to a friend’s house, where there were 10 to 15 people. The group decided to go to the Aragona,
and Johnson asked to ride with defendant because another car was full. Defendant, who was
driving his cousin’s Nissan, agreed. When they arrived at the Aragona, defendant parked and got
out of the Nissan. He realized that he still had his bag on, and because bags were not allowed in
the Aragona, he took it off and threw it back into the Nissan. Johnson also exited. Defendant saw
Johnson speaking with people in a Hyundai that had pulled up. Johnson got into the rear passenger
seat of the Hyundai. Defendant approached the Hyundai and asked for a ride to the liquor store,
and the driver agreed.
¶ 18 After spending five to seven minutes at the liquor store, defendant asked to be taken
back to the Aragona, but Johnson did not want to leave. Despite this, the driver agreed to drive
them back. Johnson sat next to defendant in the back seat of the Hyundai, and when they arrived,
defendant got out and went back to the Nissan. Defendant got into the Nissan but did not start it.
Defendant saw his fanny pack on the floor. As he grabbed it, he felt a hard object next to it.
Defendant determined that the object was a firearm and noted that it was on the side of the vehicle
where Johnson had been sitting. Defendant said he had no knowledge of the firearm when he
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entered the Nissan. Defendant explained that the only thing he brought with him was a fanny pack,
and he was the only person in the vehicle. The firearm was in “plain sight,” and he decided that
the “best thing” was not to leave the firearm showing. Defendant “scooted it back with my fanny
pack,” without touching the gun himself. Defendant did not try to take physical control of the
firearm. He exited the Nissan with his fanny pack over his shoulder, and after closing the door, he
saw lights “everywhere.”
¶ 19 On cross-examination, defendant testified that Johnson never spoke with him at
defendant’s driver’s-side window; Johnson was speaking with someone from a different vehicle.
The first time defendant observed the firearm was when he returned to the Nissan, and he did not
know what to do with it. Defendant did not call the police to tell them that there was a firearm in
his car because he had no time. Defendant felt that pushing it under the seat was “the best thing”
to avoid it being seen by others. After the officers activated their lights and approached, defendant
“shouted a lot of stuff” and asked why he was being arrested. Defendant acknowledged that he did
not immediately inform the police that he had a handgun and only told police the gun was
Johnson’s after they told him he was being arrested for “the gun in your car.”
¶ 20 At the conclusion of the evidence, defendant argued that he was entitled to raise the
defense of necessity because he did not know about the firearm until he saw it on the floorboard
of the Nissan. He argued that, because the firearm was in plain view in a busy area, he believed
the best option was to push it under the passenger seat and out of sight. The trial court denied
defendant’s request to raise a necessity defense, concluding that it had “some concerns” about
defendant’s testimony. Among the concerns was that, although defendant claimed to push the
firearm under the passenger seat with his bag, the firearm looked to have been flipped over in the
photograph showing it under the passenger seat, suggesting to the court “more than a quick push
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with an encumbered hand.” The court further found that defendant failed to define a “specific and
immediate threat” to him that required him to act as he did. The court also noted that, even if no
such threat needed to be shown, defendant was not entitled to a necessity defense under these
circumstances because there “were other options available to him other than shoving the gun under
the seat and other ways he could have handled the situation.”
¶ 21 The trial court found defendant guilty of UUWF and, initially, AHC. Defendant
subsequently argued, however, that the court’s guilty verdict on the AHC count was erroneous
because the predicate offense of conspiracy to commit armed robbery was not a forcible felony.
The court agreed and ultimately entered a not guilty finding on the AHC count.
¶ 22 C. Bench Trial on the Remaining Counts
¶ 23 On December 16, 2022, the matter proceeded to a bench trial on the remaining
counts of armed violence, possession with intent to deliver cannabis, possession of a firearm with
a defaced serial number, and possession of a controlled substance. The following relevant evidence
was adduced.
¶ 24 Cizerle testified that, after he and other officers activated their vehicles’ emergency
lights, defendant stepped out of his Nissan wearing a black fanny pack across his chest. After
detaining defendant, officers searched the bag and found 85 grams of suspected cannabis. Cizerle
then searched the Nissan and found (1) a bag of suspected cannabis and a digital scale by the shifter
and (2) another bag of suspected cannabis and a bag containing a substance that tested positive for
cocaine inside the center console. Cizerle explained that officers transported defendant to the
police department to interview him. A video of the interview was entered into evidence. This court
has reviewed the video, though portions of the audio are difficult to hear.
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¶ 25 During the interview, defendant told officers that, after returning from the liquor
store, Johnson asked him to “get my stuff” and to “get me my drugs” from the Nissan. Defendant
stated that he only sold “weed” and admitted that he had “weed” in his bag. Defendant stated that
he knew Johnson sold cocaine. An officer then asked where the “crack” was. Defendant’s response
is difficult to hear, but he seems to respond, “I’m not sure, under the armrest it was there. That’s
what I was grabbing to take to him.” To clarify, the officers asked whether, by “armrest,” defendant
meant “where you put your arm, or, like, what you lift up.” Defendant responded that he could not
remember if it was “in the second part or the first part,” but noted that he “grabbed it.” To further
clarify, the officers asked whether it was “inside the center console,” and defendant answered,
“Yeah, that’s where it was at.” The officers asked what defendant did after he grabbed the bag,
and defendant responded, “[Y]ou guys pulled up just then. I was going to take it to him.”
¶ 26 The parties stipulated that the substances recovered from the Nissan were cannabis
and cocaine.
¶ 27 The parties agreed to incorporate defendant’s testimony from his first bench trial.
Defendant also testified again in his own defense. Defendant explained that after returning to the
Nissan from the liquor store, he intended to grab his mask and go into the Aragona. When officers
detained him, he was outside the vehicle and was wearing his fanny pack, which contained
marijuana. Defendant was upset and asked the officers why he was being arrested. On
cross-examination, defendant explained that when he reached for his mask, he noticed his fanny
pack on the floor and grabbed it. At that point, he observed a gun. Defendant “pushed the gun
under the seat” and “just grabbed what belonged” to him before exiting the car. Defendant
acknowledged that Johnson asked him to “get his stuff” when defendant went back to the Nissan.
Defendant further acknowledged that he “believe[d]” that Johnson’s “stuff” was cocaine, but he
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was not positive. Defendant testified that he picked up and dropped what he thought was cocaine
from the top of the shifter but claimed he later determined he had only picked up marijuana.
¶ 28 During closing arguments, the State argued that defendant was ultimately in control
of the Nissan and its contents. Further, contrary to defendant’s claims, the cocaine was defendant’s,
and he knew that it was in the center console. The State asserted that during defendant’s interview
with the police, he noted that Johnson asked him to “go get his stuff out of the car, which he knew
to mean either a gun or cocaine, and that he was going to go retrieve those items.” Additionally,
defendant admitted “that he picked up the bag of cocaine” and dropped it “once he realized that
the police were present.” The State explained that defendant “had immediate access to the firearm,
as he had just touched it and he had just moved it underneath the passenger seat.”
¶ 29 The trial court found defendant not guilty of the armed violence counts. The court
found defendant guilty of possession of cannabis with intent to deliver, possession of a firearm
with a defaced serial number, and possession of a controlled substance. The court explained that
the evidence established defendant was driving and had primary responsibility for the vehicle.
Additionally, the court noted that there was no evidence that Johnson, who was the only other
individual in the Nissan, went “into the console.” The court sentenced defendant to prison for
concurrent terms of (1) 11 years for UUWF, (2) 8 years for possession with intent to deliver
cannabis, (3) 8 years for possession of a firearm with a defaced serial number, and (4) 5 years for
possession of a controlled substance.
¶ 30 This appeal followed.
¶ 31 II. ANALYSIS
¶ 32 On appeal, defendant argues that (1) the trial court erred by denying his motion to
suppress evidence, (2) the State failed to prove his guilt beyond a reasonable doubt of possession
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of a controlled substance and possession of a defaced firearm, (3) the court erred in finding
defendant was not entitled to a necessity defense as to the UUWF charge, and (4) defendant’s
conviction for UUWF violates the second amendment to the United States Constitution.
¶ 33 A. Motion to Suppress Evidence
¶ 34 Defendant argues that the trial court erred in denying his motion to suppress
evidence obtained from the Nissan because the officers did not have reasonable suspicion to detain
him.
¶ 35 We employ a two-part standard of review of a ruling on a motion to suppress.
People v. Fields, 2024 IL App (4th) 210194-B, ¶ 33. We will reverse the trial court’s findings of
fact if they are against the manifest weight of the evidence. Fields, 2024 IL App (4th) 210194-B,
¶ 33. A finding is deemed against the manifest weight of the evidence if the opposite conclusion
is clearly evident or if the finding is unreasonable, arbitrary, or not based on the evidence that was
presented. People v. Patton, 2022 IL App (4th) 210561, ¶ 88. By contrast, the court’s conclusions
of law are reviewed de novo. Fields, 2024 IL App (4th) 210194-B, ¶ 33.
¶ 36 Both the United States and Illinois Constitutions prohibit unreasonable searches
and seizures. U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6. The touchstone of fourth
amendment analysis is reasonableness, which balances the interest in enforcing the law against the
invasion of a citizen’s privacy. Fields, 2024 IL App (4th) 210194-B, ¶ 34. Typically,
reasonableness requires a warrant supported by probable cause. Fields, 2024 IL App (4th)
210194-B, ¶ 34. However, “a police officer may conduct a brief, investigatory stop of an individual
if the officer has a reasonable belief the individual has committed or is about to commit a crime.”
Fields, 2024 IL App (4th) 210194-B, ¶ 35. The stop must be supported by the officer’s reasonable,
articulable suspicion, i.e., more than an inchoate and unparticularized suspicion of criminal
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activity. Fields, 2024 IL App (4th) 210194-B, ¶ 34. Additionally, the stop must be justified at its
inception, and the officer must point to specific, articulable facts which, along with rational
inferences therefrom, reasonably warrant the government invading a private citizen’s
constitutionally protected interests. Fields, 2024 IL App (4th) 210194-B, ¶ 35. We judge the
officer’s conduct by an objective standard, considering whether the facts available would lead a
reasonable person to believe that the action taken was appropriate. Fields, 2024 IL App (4th)
210194-B, ¶ 35. Moreover, we assess the validity of the stop in light of the totality of the
circumstances. Fields, 2024 IL App (4th) 210194-B, ¶ 35.
¶ 37 Defendant argues that the trial court erred in denying his motion to suppress
evidence because the officers did not have reasonable suspicion to detain him. Specifically,
defendant contends that whether the officers had reasonable suspicion “hinged on the officers’
bare testimony that they were able to see, in plain view prior to the search, that the firearm’s serial
number was defaced.” Defendant asserts Yalden’s and Cizerle’s testimony that they could see a
defaced serial number was unbelievable because the officers’ purported observation occurred
while it was dark, and the officers were looking through the passenger window of the Nissan at a
black handgun on the black floorboard. Given our deferential standard of review of factual
findings, this argument is unpersuasive.
¶ 38 “When ruling on a motion to suppress evidence, the trial court often must choose
between competing versions of fact and weigh the credibility of witnesses.” People v. Lashmet,
372 Ill. App. 3d 1037, 1040 (2007). We thus give “great deference” to the trial court’s ruling on a
motion to suppress, as the trial judge “is in the best position to determine the credibility of
witnesses and to resolve any conflict in their testimony.” People v. Ortiz, 317 Ill. App. 3d 212, 219
(2000).
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¶ 39 Here, Yalden testified that he observed defendant sitting in the driver’s seat of the
Nissan until defendant eventually left with Johnson in another vehicle. After walking up to the
Nissan, Yalden shined his light through the front passenger-side window. Yalden saw in plain
view a handgun on the passenger-side floorboard. The handgun was uncased, and Yalden explicitly
testified that he was able to observe that the serial number of the firearm had been filed off. In
turn, Cizerle testified that Yalden directed him to the passenger floorboard, and when he looked,
he also saw a black handgun with the serial number scratched off. Defendant is correct that the
evidence showed that Cizerle’s and Yalden’s observations occurred around 1 a.m. and that the
handgun was black against the black floorboard of the Nissan. Despite this, the trial court was in
the best position to assess the credibility of Yalden’s and Cizerle’s testimonies that they could see
a defaced serial number on the handgun. The court reasonably determined that their testimony was
credible, and we defer to that determination. Accordingly, we conclude that the court’s finding
was not against the manifest weight of the evidence. As it is illegal to possess a firearm with an
altered, removed, or obliterated serial number (720 ILCS 5/24-5(b) (West 2020)), the court
properly found that the officers had reasonable suspicion to detain defendant, whom they observed
in the driver’s seat of the Nissan where the handgun was found. Thus, we hold that the court did
not err in denying defendant’s motion to suppress evidence.
¶ 40 B. Sufficiency of the Evidence
¶ 41 Defendant argues that the State failed to prove his guilt beyond a reasonable doubt
of both possession of a controlled substance and possession of a defaced firearm.
¶ 42 When reviewing challenges to the sufficiency of the evidence, this court will not
retry the defendant. People v. Jones, 2023 IL 127810, ¶ 28. Instead, we ask whether, “viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
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the essential elements of the offense beyond a reasonable doubt.” (Emphasis added.) Jones, 2023
IL 127810, ¶ 28. We will not substitute our judgment for the trial court’s on issues regarding the
weight of the evidence or the credibility of witnesses. Jones, 2023 IL 127810, ¶ 28. Additionally,
we will draw all reasonable inferences from the evidence in favor of the State. Jones, 2023 IL
127810, ¶ 28. We will not overturn a criminal conviction “unless the evidence is so unreasonable,
improbable, or unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.” Jones, 2023
IL 127810, ¶ 28.
¶ 43 1. Possession of a Controlled Substance
¶ 44 Defendant argues that the State failed to prove beyond a reasonable doubt that he
possessed the cocaine recovered from the vehicle.
¶ 45 To prove defendant guilty of possessing a controlled substance, the State must
prove that he knowingly possessed a controlled substance. 720 ILCS 570/402(c) (West 2020).
Possession falls into two categories, actual and constructive. People v. Johnson, 2013 IL App (4th)
120162, ¶ 24. “ ‘Actual possession exists where the defendant exhibits some form of dominion
over the unlawful substance, such as trying to conceal it or throw it away.’ ” (Internal quotation
marks omitted.) Johnson, 2013 IL App (4th) 120162, ¶ 24 (quoting People v. Scott, 2012 IL App
(4th) 100304, ¶ 19). A defendant exercises constructive possession where he or she has “ ‘no actual
personal present dominion over the narcotics, but there is an intent and a capability to maintain
control *** over them.’ ” (Internal quotation marks omitted.) Johnson, 2013 IL App (4th) 120162,
¶ 24 (quoting Scott, 2012 IL App (4th) 100304, ¶ 19). “To establish constructive possession, the
State must prove that the defendant knew contraband was present and that the defendant exercised
immediate and exclusive control over the area where the contraband was found.” Jones, 2023 IL
127810, ¶ 30. “The rule that possession must be exclusive does not mean, however, that the
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possession may not be joint.” People v. Givens, 237 Ill. 2d 311, 335 (2010). If several individuals
intend to exercise control over an object, then each has possession. Givens, 237 Ill. 2d at 335.
¶ 46 Knowledge is rarely shown by direct proof, and therefore, it is typically proved by
circumstantial evidence. People v. Sanchez, 375 Ill. App. 3d 299, 301 (2007). Knowledge can be
proved where the State presents sufficient evidence from which the fact finder can reasonably infer
that the defendant knew of the controlled substance’s existence at the place officers found it.
Sanchez, 375 Ill. App. 3d at 301. Such evidence can include the defendant’s acts, conduct, or
statements, as well as the surrounding facts and circumstances. Sanchez, 375 Ill. App. 3d at 301.
Additionally, “proof that a defendant had control over the premises where contraband is located
gives rise to an inference of knowledge and possession of that contraband.” Jones, 2023 IL 127810,
¶ 30.
¶ 47 Viewing the evidence in the light most favorable to the State, we conclude that the
trial court reasonably concluded that defendant constructively possessed the cocaine recovered
from the Nissan. The evidence showed that defendant was driving the Nissan the night the cocaine
was discovered. Thus, defendant had control of the vehicle. While the evidence showed that
Johnson accompanied defendant in the Nissan at one point, there was no indication that Johnson
accessed the console. Further, defendant admitted during his police interview that he knew Johnson
sold cocaine, Johnson asked defendant to return his “stuff,” and defendant believed Johnson’s
“stuff” was cocaine. Moreover, after officers asked defendant where the “crack” was, he responded
that it was in the center console and that he grabbed it.
¶ 48 On appeal, defendant contends the video of his police interview does not
definitively show that he knew cocaine was in the Nissan. He argues that, immediately after being
asked where the “crack” was, he stated he was not “sure,” and this, coupled with his testimony that
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he initially thought he grabbed a bag of cocaine from the console but, instead, grabbed a bag of
marijuana, established that he had no knowledge of the cocaine in his vehicle. The audio of
defendant’s immediate response when asked where the “crack” was is difficult to discern, but it
sounds as if defendant responds, “I’m not sure, on the armrest it was there. That’s what I was
grabbing to take to him.” Contrary to defendant’s claim, this statement could be interpreted to
establish that defendant had knowledge of the cocaine.
¶ 49 Even if we disregarded that specific comment because it is difficult to discern, the
subsequent questioning also suggested that defendant had knowledge of the cocaine. Specifically,
the officers asked additional questions, such as whether by “armrest” defendant meant the interior
of the center console. Each of these questions followed the officers asking specifically about
“crack,” and they did not reference any other drugs during this portion of the questioning.
Defendant, in turn, did not seek clarification about what drugs the officers were asking about or
inform the officers that he had no knowledge of the cocaine. The trial court, therefore, could
reasonably conclude that defendant understood the officers’ questioning at this point in the
interview to be specifically about cocaine, i.e., whether there was cocaine in the center console. In
response to this questioning, defendant explained that by “armrest,” he meant the interior of the
center console, and he admitted that he “grabbed it.” Given this context, the court could reasonably
conclude that defendant admitted to knowing that there was cocaine in the center console and
grabbing it. “It is the responsibility of the trier of fact to determine the credibility of witnesses and
the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable
inferences from that evidence.” People v. Johnson, 334 Ill. App. 3d 666, 678 (2002). The court
observed the video of defendant’s interrogation, and as it was in the best position to weigh the
evidence, it was free to resolve any inconsistencies and to accept or reject as much of defendant’s
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testimony as it pleased. People v. Love, 404 Ill. App. 3d 784, 787 (2010). Based upon defendant’s
admissions during his police interview, the court was free to disregard his claims at trial that he
did not know there was cocaine in the Nissan and that he only picked up a bag of marijuana.
¶ 50 Defendant argues People v. Gore, 115 Ill. App. 3d 1054 (1983), and People v.
Hampton, 358 Ill. App. 3d 1029 (2005), establish that the trial court erred in concluding that he
had knowledge and control of the cocaine, because he did not own the Nissan and Johnson was in
the Nissan for the “vast majority” of the time. However, both cases are distinguishable.
¶ 51 In Gore, the defendant borrowed a vehicle and drove to a tavern with two other
individuals. Gore, 115 Ill. App. 3d at 1055-56. At the time the defendant borrowed the vehicle,
there were beer cans on the floorboard. Gore, 115 Ill. App. 3d at 1055. After leaving the tavern,
the defendant’s vehicle was stopped due to erratic driving, and a search of the vehicle revealed
open beer cans and a bag of cannabis under the front passenger’s seat. Gore, 115 Ill. App. 3d at
1056-57. The defendant was convicted of, inter alia, unlawful possession of cannabis, and he
appealed, arguing the State did not prove he possessed the bag of cannabis. Gore, 115 Ill. App. 3d
at 1055-56. The appellate court agreed, determining that, because the defendant was traveling with
passengers and there was no evidence he ever had exclusive control of the place where the cannabis
was discovered, any of the passengers could have been responsible for the cannabis, and therefore,
defendant’s guilt was not established beyond a reasonable doubt. Gore, 115 Ill. App. 3d at 1058.
¶ 52 In Hampton, the defendant was driving, for the first time, a vehicle that was
registered to his brother, who had passed away a month prior. Hampton, 358 Ill. App. 3d at 1030.
An officer pulled over the defendant, who was the sole occupant of the vehicle, because the
vehicle’s temporary registration was expired. Hampton, 358 Ill. App. 3d at 1030. A subsequent
search of the vehicle revealed a firearm inside the glove compartment. Hampton, 358 Ill. App. 3d
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at 1030. Defendant was convicted of unlawful use of a weapon by a felon, and the defendant
appealed, arguing that the State failed to prove that he knew there was a weapon in the vehicle.
Hampton, 358 Ill. App. 3d at 1030-31. The appellate court agreed, concluding that, because the
evidence showed the defendant did not have regular and ongoing control of the vehicle, the State
could not rely on an inference of knowledge stemming from the defendant’s mere presence in the
vehicle. Hampton, 358 Ill. App. 3d at 1032-33. Additionally, because the State presented no other
evidence of knowledge, the State failed to establish that the defendant knowingly possessed the
handgun. Hampton, 358 Ill. App. 3d at 1032-33.
¶ 53 Unlike Gore, the State presented evidence that defendant had exclusive control of
the Nissan. The evidence established that, although defendant drove to the Aragona with Johnson,
after they left in another vehicle and returned from a liquor store, defendant was the only individual
to return to and enter the Nissan. Further, unlike Hampton, the State presented evidence from
which a rational fact finder could find that defendant had knowledge of the cocaine. As explained
above, the evidence established that Johnson had asked defendant to get his “stuff,” which
defendant believed included cocaine. Defendant went back to the Nissan intending to retrieve it,
and defendant admitted during his police interview that he grabbed a bag of cocaine from the center
console.
¶ 54 We conclude that, when viewing the evidence in the light most favorable to the
State, the evidence was sufficient for a reasonable fact finder to conclude that defendant knowingly
and constructively possessed cocaine.
¶ 55 2. Possession of a Defaced Firearm
¶ 56 Defendant also argues the State failed to prove that he knew the serial number on
the handgun was defaced.
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¶ 57 Defendant was convicted of section 24-5(b) of the Criminal Code of 2012 (Code)
(720 ILCS 5/24-5(b) (West 2020)). Section 24-5(b) provides, “A person who possesses any firearm
upon which any such importer’s or manufacturer’s serial number has been changed, altered,
removed or obliterated commits a Class 3 felony.” 720 ILCS 5/24-5(b) (West 2020).
¶ 58 Relying on People v. Ramirez, 2023 IL 128123, defendant argues the State had to
prove that he knew that the firearm was defaced. Defendant contends that, per Ramirez, his
conviction for possession of a defaced firearm should be vacated and the matter remanded for a
new trial on that count.
¶ 59 In Ramirez, police executed a search warrant at the defendant’s residence and
recovered a shotgun from under the defendant’s mattress with its serial number scratched off.
Ramirez, 2023 IL 128123, ¶¶ 3-4. The defendant was charged with possession of a firearm with a
changed, altered, removed, or obliterated serial number, and while the parties stipulated that the
serial number had been defaced, the State presented no direct evidence that the defendant knew of
the defacement. Ramirez, 2023 IL 128123, ¶ 6. Following his conviction, the defendant appealed
to the Illinois Supreme Court, arguing that the State needed to prove that he knew the firearm was
defaced. Ramirez, 2023 IL 128123, ¶¶ 7, 12. The court agreed, concluding that a person must
knowingly possess a defaced firearm and know such firearm is defaced to be convicted under
section 24-5(b). Ramirez, 2023 IL 128123, ¶ 23. The court reasoned that section 24-5(b) is a
possessory offense for which knowledge is the appropriate mental state and that the mental state
of knowledge applied to both the possession and defacement elements of the offense. Ramirez,
2023 IL 128123, ¶¶ 22-23. Accordingly, the court determined the State was required to prove that
the defendant knew the firearm was defaced to convict him of violating section 24-5(b). Ramirez,
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2023 IL 128123, ¶ 23. Because the reversal of the defendant’s conviction was due to a posttrial
change in the law, the court remanded the case for a new trial. Ramirez, 2023 IL 128123, ¶¶ 29-31.
¶ 60 Given Ramirez’s holding, the State concedes that defendant is entitled to a new trial
on the possession of a defaced firearm charge. The State asserts the record established that the
handgun’s defaced serial number was in plain view, and had the prosecution known that it needed
to prove defendant knew of the defacement, it would have introduced the handgun into evidence
at the second bench trial “to show that the defacement was so clear that it could not have escaped
defendant’s notice.” Under these circumstances, we accept the parties’ agreement that the proper
remedy is to vacate defendant’s conviction for possession of a defaced firearm and remand for a
new trial on that charge. Ramirez, 2023 IL 128123, ¶¶ 30-31.
¶ 61 C. Necessity Defense
¶ 62 Defendant argues the trial court erred in determining that he was not entitled to
raise a necessity defense to the UUWF charge.
¶ 63 The necessity defense is outlined in section 7-13 of the Code, which provides:
“Conduct which would otherwise be an offense is justifiable by reason of necessity
if the accused was without blame in occasioning or developing the situation and
reasonably believed such conduct was necessary to avoid a public or private injury
greater than the injury which might reasonably result from his own conduct.” 720
ILCS 5/7-13 (West 2020).
To raise the defense of necessity, the defendant must show some evidence that he (1) “was without
blame in occasioning or developing the situation” and (2) “reasonably believed that his conduct
was necessary to avoid a greater public or private injury than that which might reasonably have
resulted from his conduct.” People v. Janik, 127 Ill. 2d 390, 399 (1989). A necessity defense is
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viewed as a “choice between two admitted evils where other optional courses of action are
unavailable [citations] and the conduct chosen must promote some higher value than the value of
literal compliance with the law.” Janik, 127 Ill. 2d at 399.
¶ 64 The parties dispute whether a necessity defense also requires a showing that the
defendant faced an immediate threat of harm. In particular, defendant argues, while People v. Kite,
153 Ill. 2d 40, 45 (1992), referenced a “specific and immediate threat” in the context of the
defendant raising a necessity defense, that requirement applies only to inmates raising the defense
in the context of prison escapes. The State responds that defendant’s interpretation of Kite is too
narrow.
¶ 65 In Kite, after the defendant, an inmate at a corrections facility, was found to possess
a knife in 1989, the defendant was charged with possession of a knife by a person in custody of a
corrections facility. Kite, 153 Ill. 2d at 42. At trial, the defendant testified that in 1987 and 1988,
prison officials conspired to have him slain by other inmates, and though he claimed officials
passed weapons to other inmates to do so, the defendant named neither the officials nor the inmates
involved. Kite, 153 Ill. 2d at 43. The defendant tendered jury instructions on the affirmative
defense of necessity. Kite, 153 Ill. 2d at 43. The trial court denied the instruction, and after the
defendant was convicted, the appellate court reversed his conviction. Kite, 153 Ill. 2d at 43. The
State appealed, and the supreme court reversed the appellate court, concluding the trial court could
have properly found that a necessity instruction was unwarranted due to a lack of credible evidence
warranting it. Kite, 153 Ill. 2d at 48. In reaching that conclusion, the court explained that case law
had established three factors “to determine when an inmate may be entitled to a necessity defense
instruction in the context of a case involving the possession of a weapon in prison.” Kite, 153 Ill.
2d at 45. Those factors were: (1) the prisoner is faced with—in the immediate future—a specific
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threat of death, forcible sexual attack, or substantial bodily injury; (2) there is no time to complain
to authorities or there is a history of complaints being futile; and (3) the inmate has no time or
opportunity to resort to the courts. Kite, 153 Ill. 2d at 45. In opining on these factors, the court
noted that a “specific and immediate threat, however, constitutes the very nature of a necessity
defense; thus, proof of that factor is a threshold requirement for its establishment. Failure to prove
the existence of a specific and immediate threat obviates the need to conduct an inquiry into the
second and third factors.” Kite, 153 Ill. 2d at 45. The court continued, “the defense of necessity
arises when a person reasonably believes his conduct, which would otherwise constitute an
offense, was necessary to avoid a public or private injury greater than the injury which might have
resulted from his conduct.” Kite, 153 Ill. 2d at 46. Accordingly, “[a]bsent a specific and immediate
threat, an inmate is not faced with such a choice.” Kite, 153 Ill. 2d at 46. The supreme court
concluded that the defendant’s “vague, uncorroborated testimony, coupled with the length of time
between the alleged events, do not support a finding of a specific and immediate threat.” Kite, 153
Ill. 2d at 47.
¶ 66 Defendant seizes on the supreme court’s language that, “[a]bsent a specific and
immediate threat, an inmate is not faced with such a choice” to argue that Kite’s requirement of
proof of a specific and immediate threat was intended to apply only in the “prison escape context.”
(Emphasis added.) Kite, 153 Ill. 2d at 46. Defendant, however, disregards other language from
Kite suggesting that the requirement of such proof was not intended to apply in such limited
circumstances. For example, defendant disregards that the court stated, without qualification, that
a “specific and immediate threat *** constitutes the very nature of a necessity defense.” Kite, 153
Ill. 2d at 45. Similarly, the court explained that “[p]roof of a specific and immediate threat
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continues to be the threshold requirement for the establishment of a necessity defense.” Kite, 153
Ill. 2d at 47.
¶ 67 Defendant responds that the First District, in People v. Crowder, 2018 IL App (1st)
161226, ¶ 33, stated, “Necessity does not require the defendant to show any imminent risk of
harm.” However, that assertion was unsupported by any case law, including Kite, which the First
District had cited elsewhere in the opinion. See Crowder, 2018 IL App (1st) 161226, ¶¶ 23, 33.
Indeed, this court has previously affirmed the requirement that a threat of immediate harm is
necessary to raise a necessity defense. See People v. Brown, 2023 IL App (4th) 220399, ¶ 27 (“A
necessity defense requires that ‘the threat of harm was immediate and defendant’s conduct was the
sole option to avoid injury.’ ” (quoting People v. Boston, 2016 IL App (1st) 133497, ¶ 39)).
¶ 68 Applying Kite and Brown, we conclude that defendant was required to show the
existence of a specific and immediate threat for a necessity defense to be warranted. Defendant,
however, failed to do so. Defendant argued there was a threat to the public if the firearm was not
moved under the passenger seat in the Nissan, because it was in plain view in a crowded area and
someone could have stolen it. This vague assertion, which alleged only the possibility that an
unidentified individual might attempt to steal the firearm, fails to support a finding of a specific
and immediate threat. See Kite 153 Ill. 2d at 47 (noting that “vague, uncorroborated testimony”
failed to establish a specific and immediate threat). Having failed to meet this threshold
requirement, a necessity defense was not warranted.
¶ 69 However, even if defendant had established the existence of a specific and
immediate threat, his argument would still fail, as defendant had other options available to him,
such as contacting the police. In an effort to argue against that conclusion, defendant relies on
People v. Gullens, 2017 IL App (3d) 160668, but that case is distinguishable. In Gullens, the
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defendant was on conditional discharge for a prior theft conviction, which prohibited him from
possessing a firearm. Gullens, 2017 IL App (3d) 160668, ¶ 3. The State filed a petition to revoke
the defendant’s conditional discharge after learning that the defendant had possessed a stolen
firearm while returning it to the retailer. Gullens, 2017 IL App (3d) 160668, ¶ 3. At the hearing on
the petition to revoke, evidence was adduced that, inter alia, the defendant accompanied a group
to a firearm retailer where someone in the group stole a gun without the defendant’s knowledge.
Gullens, 2017 IL App (3d) 160668, ¶¶ 5-6. When the defendant learned this, he took the firearm—
possessing it for about 10 minutes—and returned it to the store, informing the clerk that “his
younger brother had stolen the gun.” Gullens, 2017 IL App (3d) 160668, ¶¶ 1, 5-6, 11. A detective
who investigated the theft of the firearm agreed on cross-examination that (1) prior to the
defendant’s possession of the firearm, the defendant could not have been sure that, if he contacted
the police, the person who stole the firearm would still be present by the time the police arrived,
(2) the defendant faced potential violence if he contacted the police, and (3) it was better that the
firearm was returned to the store than being “out on the street.” Gullens, 2017 IL App (3d) 160668,
¶ 7. The defendant argued the evidence supported a necessity defense because he took the gun to
return it to the store and keep it out of the public. Gullens, 2017 IL App (3d) 160668, ¶ 9. The trial
court determined that the necessity defense did not apply and resentenced the defendant to three
years’ imprisonment. Gullens, 2017 IL App (3d) 160668, ¶¶ 15-16.
¶ 70 The appellate court reversed the revocation of the defendant’s conditional
discharge, concluding that, because a stolen firearm was “out on the street,” there was a specific
and immediate threat to public safety. Gullens, 2017 IL App (3d) 160668, ¶ 25. The court also
concluded that the defendant had no option other than to possess the gun and return it to the store,
because the evidence showed there was no guarantee that police would be able to return the firearm
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if called, and the defendant reasonably believed that the individual who possessed the firearm at
the time would not return it, as he had stolen it. Gullens, 2017 IL App (3d) 160668, ¶ 24.
¶ 71 Unlike Gullens, there is no indication here that the police, had they been informed
of the firearm, would have been unable to secure it before some greater harm came to the public.
The evidence showed that the firearm was inside the Nissan with defendant, albeit in plain view.
There was no evidence suggesting it was likely that another individual would abscond with this
firearm while defendant was still in the car. Instead of calling the police and waiting for officers
to arrive, defendant merely pushed the firearm underneath the passenger seat, which left it
accessible to either defendant or Johnson later. Thus, defendant’s action did not alleviate the threat
of the defaced firearm being “on the streets.” This is unlike Gullens, where the defendant possessed
the stolen firearm only to return it to its lawful possessor. Moreover, the evidence showed that
when police officers encountered defendant, he did not immediately inform them about the
presence of the firearm or that it belonged to Johnson.
¶ 72 Accordingly, even if the firearm being in plain view inside the Nissan posed a
specific and immediate threat, defendant had other options that did not require him to push the
firearm underneath the passenger seat. Thus, a necessity defense would still be unwarranted. As a
result, defendant is entitled to no relief on this issue.
¶ 73 D. Whether Defendant’s Conviction for UUWF Violates the Second Amendment
¶ 74 Finally, defendant argues his conviction for UUWF violates the second amendment
on its face as a result of the United States Supreme Court’s decision in New York State Rifle &
Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022).
¶ 75 The second amendment provides, “A well regulated Militia, being necessary to the
security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.
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Const., amend. II. “[T]he Second and Fourteenth Amendments [(U.S. Const., amends. II, XIV)]
protect the right of an ordinary, law-abiding citizen to possess a handgun” both inside and outside
one’s home “for self-defense.” Bruen, 597 U.S. at 8-9; see District of Columbia v. Heller, 554 U.S.
570, 595 (2008) (holding that the second amendment confers an individual right to keep and bear
arms); see also McDonald v. City of Chicago, 561 U.S. 742, 791 (2010) (holding that the fourteenth
amendment incorporates the second amendment such that the second amendment applies to the
states).
¶ 76 The Supreme Court recently announced a test in Bruen to be applied when assessing
the constitutionality of laws meant to regulate conduct protected by the second amendment. The
Court first provided that, “when the Second Amendment’s plain text covers an individual’s
conduct, the Constitution presumptively protects that conduct.” Bruen, 597 U.S. at 17. To regulate
such protected conduct, “the government must demonstrate that the regulation is consistent with
this Nation’s historical tradition of firearm regulation.” Bruen, 597 U.S. at 17. As such, “[o]nly if
a firearm regulation is consistent with this Nation’s historical tradition may a court conclude that
the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’ ” Bruen,
597 U.S. at 17 (quoting Konigsbery v. State Bar of California, 366 U.S. 36, 50, n.10 (1961)).
Pursuant to this test, the Bruen Court struck down a New York firearm licensing regime that
required individuals to show a “special need for self-defense” to carry a firearm in public, holding
that the regime violated citizens’ rights to bear arms. Bruen, 597 U.S. at 71. In reaching that
determination, the Court analyzed the country’s history of regulating the public carrying of
weapons and concluded that New York’s firearm licensing regime was not supported by “an
American tradition justifying” it. Bruen, 597 U.S. at 11, 70.
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¶ 77 Defendant argues that section 24-1.1(a) of the Code violates the second amendment
on its face pursuant to Bruen. 720 ILCS 5/24-1.1(a) (West 2020). Section 24-1.1(a) provides, in
part:
“It is unlawful for a person to knowingly possess on or about his person or on his
land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this State or any other jurisdiction.”
720 ILCS 5/24-1.1(a) (West 2020).
Defendant first asserts his possession of the firearm was presumptively protected by the second
amendment because the right to keep and bear arms is an individual right that belongs to all
Americans. Defendant continues that the State cannot show the practice of permanently disarming
individuals based upon their status as felons is consistent with the United States’s historical
tradition of firearm regulation. Thus, defendant contends, pursuant to the framework outlined in
Bruen, section 24-1.1(a) violates the second amendment. The State responds that defendant’s
conduct was not constitutionally protected because he is a felon and the second amendment
protects only law-abiding citizens’ possession of firearms.
¶ 78 We find People v. Baker, 2023 IL App (1st) 220328, instructive. In Baker, the
defendant argued that section 24-1.1(a) violated the second amendment as applied to him under
the framework announced in Bruen. Baker, 2023 IL App (1st) 220328, ¶¶ 33, 37. The appellate
court determined the defendant could not challenge section 24-1.1(a) as a violation of the second
amendment, because, as a felon, “Bruen just does not apply to him.” Baker, 2023 IL App (1st)
220328, ¶ 37. According to the court, Bruen “could not have been more clear that its newly
announced test applied only to laws that attempted to regulate the gun possession of ‘law-abiding
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citizens,’ and not felons like defendant.” Baker, 2023 IL App (1st) 220328, ¶ 37 (quoting Bruen,
597 U.S. at 71). The court emphasized that the phrase “law-abiding” was used extensively
throughout the majority opinion in Bruen. Baker, 2023 IL App (1st) 220328, ¶ 37. Further, Justice
Kavanaugh’s concurrence in Bruen, which was joined by Chief Justice Roberts, provided,
“ ‘[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons ***.’ ” Baker, 2023 IL App (1st) 220328, ¶ 37 (quoting Bruen,
597 U.S. at 81 (Kavanaugh, J., concurring, joined by Roberts, C.J.)). The court explained that,
because Bruen limited the application of its test to laws seeking to regulate the possession of
firearms by “ ‘law-abiding citizens,’ ” the defendant was “simply outside the box drawn by
Bruen.” Baker, 2023 IL App (1st) 220328, ¶ 37.
¶ 79 Defendant responds that whether felons are encompassed by the second amendment
“is not settled,” and “the decision in Baker is not binding” on this court. We reject the notion that
the law is unsettled. We note, initially, that in Heller, the Supreme Court held the second
amendment conferred an individual right to keep and bear arms and “elevate[d] above all other
interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
(Emphasis added.) Heller, 554 U.S. at 595, 635. The Court made clear, however, that “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. Thereafter, in McDonald, the Court held that the
second amendment was “fully applicable to the States” (McDonald, 561 U.S. at 750), and Justice
Alito “repeat[ed] those assurances” that prohibitions on possession of firearms by felons were not
to be questioned. McDonald, 561 U.S. at 786 (opinion of Alito, J., joined by Roberts, C.J., and
Scalia and Kennedy, JJ.). Bruen did not contradict the Court’s determinations that the second
amendment protects the rights only of law-abiding citizens to bear arms and that states may
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prohibit felons from being in possession of firearms. Accordingly, Baker comports with second
amendment jurisprudence, and we decline to disregard it.
¶ 80 In fact, this court reached the same conclusion as Baker in People v. Boyce, 2023
IL App (4th) 221113-U, ¶ 16, an unpublished order. In Boyce, the defendant was a felon who
argued that section 24-1.1 of the Code was unconstitutional on its face pursuant to Bruen. Boyce,
2023 IL App (4th) 221113-U, ¶ 11. We relied on Baker and similarly concluded that use of the
phrase “law-abiding” throughout Heller and Bruen confirmed the second amendment does not
encompass felons. Boyce, 2023 IL App (4th) 221113-U, ¶ 15 (“However, the Court’s language in
Bruen supports the validity of its dictum in Heller.”). As a result, we concluded “the Bruen
decision does not apply to felons” and held that the defendant “failed to show section 24-1.1 is
unconstitutional on its face under that decision.” Boyce, 2023 IL App (4th) 221113-U, ¶ 16.
¶ 81 Accordingly, we hold that Bruen does not apply to defendant, as the second and
fourteenth amendments protect the right of “law-abiding citizens” to possess handguns. Bruen,
597 U.S. at 9-10. Thus, Bruen’s historical-tradition test applies to regulations affecting
law-abiding citizens’ possession of firearms. See Bruen, 597 U.S. at 71 (holding that New York’s
proper-cause requirement was unconstitutional where it prevented “law-abiding citizens with
ordinary self-defense needs from exercising their right to keep and bear arms”); Baker, 2023 IL
App (1st) 220328, ¶ 37 (concluding that Bruen applies only to law-abiding citizens); Boyce, 2023
IL App (4th) 221113-U, ¶ 16 (same). Because defendant is a felon, he is, by definition, not a
law-abiding citizen. Therefore, defendant cannot establish that the second amendment protected
his conduct of possessing a firearm, and thus, he does not fall within the scope of Bruen. As a
result, defendant cannot show that section 24-1.1(a) of the Code violates the second amendment
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on its face under the Bruen framework. See Boyce, 2023 IL App (4th) 221113-U, ¶ 16 (rejecting
facial challenge).
¶ 82 III. CONCLUSION
¶ 83 For the reasons stated, we vacate defendant’s conviction for possession of a defaced
firearm and remand for a new trial on that charge, and we affirm on all other grounds.
¶ 84 Affirmed in part and vacated in part; cause remanded.
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