People v. Jones ( 2023 )

2023 IL App (1st) 221613-USIXTH DIVISION
December 15, 2023
No. 1-22-1613
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 22118630001
)
LAMAR JONES, ) Honorable
) Peter Gonzalez,
Defendant-Appellant. ) Judge, presiding.
JUSTICE C.A. WALKER delivered the judgment of the court.
Presiding Justice Oden Johnson and Justice Tailor concurred in the judgment.
ORDER
¶1 Held: We reverse defendant’s conviction for carrying a firearm in a prohibited area
because the State failed to disprove a statutory affirmative defense beyond a
reasonable doubt.
No. 1-22-1613
¶2 After a bench trial, defendant Lamar Jones was found guilty of carrying a firearm in a
prohibited area (430 ILCS 66/65 (West Supp. 2021)) and sentenced to three months’ supervision.
He appeals, claiming the evidence was insufficient to sustain the verdict. We reverse.
¶3 BACKGROUND
¶4 Jones was arrested on June 11, 2022, and charged with carrying a firearm in a prohibited
area in violation of 430 ILCS 66/65 (West Supp. 2021).
¶5 At Jones’s bench trial on September 6, 2022, defense counsel, in his opening statement,
summarized a statutory section as generally maintaining that a “licensee shall not be in violation
of the section while he’s traveling along the public right-of-way, that touches across the premises.”
¶6 Chicago police officer Coyle1 testified that he had worked as a police officer for ten years
at the time of his testimony. On June 11, 2022, he was on routine patrol near the 4700 block of
South Wood Street in Chicago at the “Back of the Yards Festival.” The prosecutor asked if the
festival required a permit, to which defense counsel objected on the basis of foundation. The circuit
court overruled the objection, and Coyle responded, “Yes. Permits are required for this festival,”
and the city was the issuing authority. Coyle stated that the street festival’s east-west “main
thoroughfare” was 47th Street, which was blocked off and closed to traffic from Paulina Street to
Damen Avenue. The entrances and exits were “erected [on] a chain link fenc[e].” On the fencing,
signs were posted, including one indicating firearms were not permitted in the festival. Every
festival entrance and exit had these signs, and Coyle did not believe someone could enter the
festival without seeing them.
¶7 At around 4:40 p.m., Coyle noticed “an individual walking eastbound on 47th Street with a
large bulge on the right side of his hip.” Coyle identified Jones in court as this individual. Coyle
1
The report of proceedings does not contain Coyle’s first name.
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No. 1-22-1613
alerted other officers regarding Jones, then “detained” him for “investigation,” during which
officers recovered a firearm from a holster on Jones’s right hip. Jones stated he was traveling home
to an address on the 5100 block of South Marshfield Avenue in Chicago. Coyle testified that this
location was “multiple blocks away” from the festival, and Jones did not have to walk through the
festival to reach it. Jones claimed that he had to travel on 47th Street because he had been shot at
previously on another route home.
¶8 Coyle testified that Jones had both a Firearm Owner’s Identification (FOID) card and a
concealed carry license (CCL) in his wallet and that Jones verbally confirmed the cards were valid,
testimony to which defense counsel unsuccessfully objected on the basis of foundation and best
evidence. Coyle also confirmed the CCL was current based on the card’s date.
¶9 Coyle further testified that he wore a body camera on June 11, 2022, which recorded the
interaction with Jones. The State published portions of the recording to the court after Coyle
confirmed the recording was accurate. The recording, included in the record on appeal, depicts a
man in a red shirt and black face mask walk in the middle of the street past a group of Chicago
police officers. Coyle testified this man was Jones. At 2:00, officers approach, handcuff Jones, and
remove an item from his pocket. One officer asks if Jones saw a sign. A conversation between an
officer and Jones occurs at 3:04 to 3:24; Coyle testified that Jones says he has a permit during this
exchange, but this is not clearly audible on the recording. Between 5:34 and 5:43, Jones can be
heard saying to an officer, “I didn’t see it.” Between 9:19 and 10:06, Jones says he had to walk
past the event to reach his home because of a previous incident in which someone shot at him.
Another portion of the recording shows a fence with multiple signs posted on it, including one
depicting a firearm in a circle with a line through it. Coyle confirmed this sign accurately depicted
the “Firearms Prohibited” signs posted on “[e]very single” festival entrance.
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No. 1-22-1613
¶ 10 On cross-examination, Coyle testified that he never saw the festival’s permit. He did not see
Jones enter the festival. On non-festival days, the street on which Jones walked when Coyle saw
and stopped him was a public street, and it remained open to the public during the festival “with
the exception that [people] have to follow the rules of the festival.”
¶ 11 The State rested, and Jones moved for a directed finding, advancing multiple arguments. He
first contended the State failed to show he was a “licensee” as required by the statute. Jones further
argued the State had introduced insufficient evidence regarding the festival’s permit because “[w]e
can’t presume that a permit issued *** So the permit needs to be put into evidence.” Finally, Jones
argued he was permitted to walk through the area with his firearm provided it was necessary to
reach his home. The State responded that the testimony about Jones’s CCL, along with his
admission regarding his licenses, constituted evidence he was a “licensee,” and Coyle’s testimony
on the permit and the location of Jones’s home satisfied the statutory requirements for those issues.
The circuit court denied the motion.
¶ 12 Jones testified in his case-in-chief that he was walking home from his mother’s house, which
is located near the intersection of 46h Street and Wood Street, when police officers stopped him.
He admitted that he entered the festival area before the stop, but he did not see signs indicating
firearms were prohibited when he entered. The officers took his wallet and removed his CCL.
Jones told the officers he had “an incident report,” and walked through the festival because he was
afraid to use another route. Officers asked him if he saw [no firearm] signs, and he responded
negatively.
¶ 13 On cross-examination, Jones testified that he had a CCL, which he had to complete training
to procure. He nodded when police officers asked him this on the scene, but did not affirmatively
state it. Jones responded “Yes,” to the question, “Despite your training and knowledge of the
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No. 1-22-1613
conceal carry laws in this state, you decided to knowingly possess a firearm at an event where such
possession was prohibited, yes or no.” On redirect, Jones clarified that he did not know that
carrying firearms was prohibited in the area where the officers stopped him.
¶ 14 At closing arguments, defense counsel contended that the State failed to establish that (1)
Jones “had a valid CCL or a FOID card,” (2) the festival had a permit issued by a local government,
or (3) Jones was not walking through the area to access his residence because other routes were
dangerous. Counsel also contended the State failed to prove the signs met statutory requirements.
The prosecutor argued that a fear for one’s safety is not an exception to the statute, and continued
that Jones’s “credibility is entirely at issue in this case and [his account] just doesn’t check out.”
¶ 15 The circuit court found Jones guilty of carrying a firearm in a prohibited area and sentenced
him to three month’s supervision. In so finding, the court noted that Jones admitted he had a valid
CCL, Coyle could validly testify regarding the permit situation, which was supported by the
fencing, signs and blocked streets, and the testimony and body camera footage suggested the
appropriate signs were present. The court also noted it found Jones incredible regarding whether
he needed to pass through the festival to reach his home for safety reasons.
¶ 16 Jones filed a motion to reconsider and for a new trial, alleging the evidence was insufficient
to prove him guilty beyond a reasonable doubt because the State failed to establish that (1) Jones
was not crossing the area while traveling on a public right of way (hereinafter “crossing
exception”); (2) the signs at the festival barring firearms did not meet statutory requirements; (3)
the festival was one that required a permit (and the circuit court should not have permitted Coyle’s
testimony on this point because he did not have personal knowledge, making his testimony on the
issue hearsay); (4) Jones was a “licensee” per the statute; (5) Jones did not have to walk through
the festival to reach his home; and (6) Jones acted knowingly.
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No. 1-22-1613
¶ 17 On October 14, 2022, the circuit court denied Jones’s motion to reconsider and for a new
trial. During argument on the motion, defense counsel specifically argued the crossing exception
issue, but the State did not respond to the argument, and the court made no express ruling on it.
This appeal followed.
¶ 18 JURISDICTION
¶ 19 This court has jurisdiction pursuant to Illinois Supreme Court Rules 603 (eff. Feb. 6, 2013)
and 606 (eff. Sept. 18, 2023) because the circuit court denied Jones’s motion to reconsider and for
a new trial on October 14, 2022, and Jones filed his notice of appeal that same day.
¶ 20 ANALYSIS
¶ 21 On appeal, Jones challenges the sufficiency of the evidence on six grounds, claiming the
State failed to establish that: (1) the crossing exception did not apply; (2) the festival’s signs
conformed with the statutory requirements; (3) the festival qualified as one for which a permit was
required; (4) Jones had a CCL, and was thus a “licensee” per the statute; (5) Jones did not have to
travel through the festival to reach his residence; and (6) Jones acted knowingly.
¶ 22 When a defendant claims on appeal that the State’s evidence was insufficient, the reviewing
court will construe the evidence in the light most favorable to the prosecution, and determine if
any rational factfinder could have found the defendant guilty beyond a reasonable doubt. People
v. Jones, 2023 IL 127810, ¶ 28. The reviewing court will not substitute its judgment for that of the
factfinder on matters of witness credibility or evidentiary weight. Id. Reversal is inappropriate
“unless the evidence is so unreasonable, improbable, or unsatisfactory” that it justifies “a
reasonable doubt of the defendant’s guilt.” Id.¶ 23 A criminal defendant has the right to have the State prove each element of an offense beyond
a reasonable doubt. People v. Murray, 2019 IL 123289, ¶ 28. Additionally, when a defendant raises
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No. 1-22-1613
an affirmative defense, the State must also disprove that defense beyond a reasonable doubt.
People v. Bardsley, 2017 IL App (2d) 150209, ¶ 17 (citing People v. Jeffries, 164 Ill. 2d 104, 127
(1995)).
¶ 24 Jones was convicted of carrying a firearm in a prohibited area under the Firearm Concealed
Carry Act. 430 ILCS 66/65 (West Supp. 2021). To establish this charge, the State had to prove
Jones was a licensee under the act, and he knowingly carried a firearm while in the prohibited area.
430 ILCS 66/65(a), (a)(10) (West Supp. 2021). The prohibited area at issue here is defined as,
“Any public gathering or special event conducted on property open to the public that requires the
issuance of a permit from the unit of local government, provided this prohibition shall not apply
to a licensee who must walk through a public gathering in order to access his or her residence,
place of business, or vehicle.” 430 ILCS 66/65(a)(10) (West Supp. 2021). In section (c), the statute
further provides, in relevant part: “A licensee shall not be in violation of this Section while he or
she is traveling along a public right of way that touches or crosses any of the premises under
subsection (a) *** if the concealed firearm is carried on his or her person in accordance with the
provisions of this Act.” 430 ILCS 66/65(c) (West Supp. 2021). Finally, the statute requires that,
“Signs stating the that the carrying of firearms is prohibited shall be clearly and conspicuously
posted at the entrance (of the above-listed prohibited areas). *** Signs shall be of a uniform design
*** and shall be 4 inches by 6 inches in size.” 430 ILCS 66/65(d) (West Supp. 2021).
¶ 25 We will first consider Jones’s argument that the State failed to prove beyond a reasonable
doubt that he was not traveling on a public right of way that crossed the festival per 430 ILCS
66/65(c) (West Supp. 2021).
¶ 26 Before turning to the evidence on this point, we must resolve the parties’ dispute over
whether this issue is properly before this court. The State contends Jones forfeited this argument
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No. 1-22-1613
because it is an affirmative defense, and he did not raise it in a pleading or during trial, and thus
cannot now raise it on appeal. In support, the State emphasizes that defense counsel did not
mention the crossing exception in his motion for a directed verdict or closing argument.
¶ 27 Jones responds that whether the crossing exception applies is an element of the charge, and
thus it is not subject to forfeiture, as a defendant may argue the State’s evidence was insufficient
to prove each element beyond a reasonable doubt at any time. See People v. Carter, 2021 IL
125954, ¶ 41. He further maintains that even if the crossing exception is an affirmative defense,
he sufficiently raised it at trial such that the State had the burden to disprove it beyond a reasonable
doubt, which it failed to do.
¶ 28 An exception is an element of a statutory offense when the exception appears in the “body”
of the offense. See People v. Laubscher, 183 Ill. 2d 330, 335 (1998). The Laubscher court
considered the AUUW exception for carrying on one’s own property in explaining this
proposition, with the statutory language at issue reading: “(a) A person commits the offense of
unlawful use of weapons when he knowingly: *** (4) Carries or possesses * * * concealed on or
about his person except when on his land or in his own abode or fixed place of business any pistol,
revolver, stun gun or taser or other firearm * * *.” (Emphasis added.) 720 ILCS 5/24-1(a)(4) (West
1994). The Laubscher court held that based on this language, the exception was so intrinsic to the
statutory language defining the offense that it had to be understood as an element of the offense.
Laubscher, 183 Ill. 2d at 335.
¶ 29 An exception may still be an affirmative defense even if listed in the same statute, however,
because while “an exception may appear within the statutory definition of an offense, it is part of
the body of the offense only if it is so incorporated with the language of the definition that the
elements of the offense cannot be accurately described without reference to the exception.”
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No. 1-22-1613
(Internal quotations omitted.) People v. McPeak, 2012 IL App (2d) 110557, ¶ 6. Conversely, “if
the exception merely withdraws certain acts or certain persons from the operation of the statute,
the exception is a matter of defense, and its position in the statute makes no difference.” (Internal
quotations omitted.) Id.; see also People v. Tolbert, 2016 IL 117846, ¶¶ 15-17.
¶ 30 Where an exception is an affirmative defense, a defendant must raise it at trial or risk
forfeiting the defense. People v. Shepherd, 2020 IL App (1st) 172706, ¶ 17. Typically, a defendant
should raise an affirmative defense in discovery or in a pleading before trial, but a defendant may
also raise it via the evidence at trial. People v. Wiggen, 2021 IL App (3d) 180486, ¶ 18. The core
consideration is whether the defendant placed the State on notice that it must disprove the elements
of the affirmative defense while the trial is ongoing, providing the State the opportunity to do so.
Shepherd, 2020 IL App (1st) 172706, ¶¶ 16-18 (citing Bardsley, 2017 IL App (2d) 150209, ¶¶ 17,
22).
¶ 31 Whether a statutory exception is an element or affirmative defense is an issue of statutory
interpretation.2 The purpose of statutory interpretation is to give effect to the legislative intent.
People v. Stewart, 2022 IL 126116, ¶ 13. The best indication of legislative intent is the statutory
text itself, “given its plain and ordinary meaning.” Id. Where the language of a statute is clear and
unambiguous, a reviewing court must apply the statute as written. Id.¶ 32 We hold the statutory language is clear and unambiguous that the crossing exception is an
affirmative defense, not an element. The crossing exception is not so intrinsic to the language of
the charge itself such that one could not describe the elements without including it. McPeak, 2012
IL App (2d) 110557, ¶ 6. Instead, the elements of the crime are straightforward, and can certainly
2
The circuit court did not address the crossing exception, but had it done so, we note that we would
not have been bound by its interpretation because appellate courts review matters of statutory interpretation
de novo. See Tolbert, 2016 IL 117846, ¶ 12.
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No. 1-22-1613
be described without reference to the crossing exception—a defendant violates the section if, as a
licensee, he knowingly carries a firearm while on the premises of an event requiring a permit. 430
ILCS 66/65(a)(10) (West Supp. 2021); McPeak, 2012 IL App (2d) 110557, ¶ 6. The crossing
exception then removes certain acts from this bar—specifically, the act of traveling on a public
right of way that touches or crosses the prohibited area. 430 ILCS 66/65(c) (West Supp. 2021).
This language and structure makes the statute clear on its face that the legislature intended to make
the exception an affirmative defense. See McPeak, 2012 IL App (2d) 110557, ¶ 6.
¶ 33 We disagree with the State, however, that Jones failed to raise this affirmative defense.
Defense counsel directly invoked the crossing exception in his opening statement. Coyle testified
that the only conduct he saw Jones perform was walking on the street, and defense counsel then
elicited testimony from Coyle that the street was both generally open to the public in normal
circumstances and still open to the public during the festival. While there is no set method a
defendant must use to raise an affirmative defense, Illinois law maintains that it can be done both
before trial and via the evidence introduced during trial. See Wiggen, 2021 IL App (3d) 180486,
¶ 18. Based on this understanding, Jones gave the State more than sufficient notice by directly
referencing the exception in the opening statement and eliciting testimony to support the argument.
This placed the State on notice that it now had the burden to prove beyond a reasonable doubt that
the crossing exception did not apply. Bardsley, 2017 IL App (2d) 150209, ¶ 17. Accordingly, it is
of no consequence that defense counsel did not then specifically argue the crossing exception in
his directed verdict motion or closing argument, as disproving the crossing exception had become
part of the State’s sufficiency of the evidence obligations.
¶ 34 Having found Jones sufficiently asserted the crossing exception as an affirmative defense,
we may consider the merits of his argument that the State’s evidence was insufficient to prove the
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crossing exception did not apply beyond a reasonable doubt. For the purpose of examining this
exception, we presume (without finding) that the State’s evidence was sufficient to establish the
other elements of the charge.
¶ 35 The exception states that a licensee is not in violation of the statute if he possesses the
firearm while on “a public right of way” that crosses the relevant protected area, here the festival.
430 ILCS 66/65(c) (West Supp. 2021). The Illinois Highway Code defines a “right-of-way” as the
“land, or interest therein, acquired for or devoted to a highway.” 605 ILCS 5/2-217 (West 2020).
A highway is, “any public way for vehicular travel,” and “shared-use paths for nonvehicular public
travel, sidewalks *** and all other structures and appurtenances necessary or convenient for
vehicular traffic,” and may be called a “street” in a “municipal” location. 605 ILCS 5/2-202 (West
Supp. 2021).
¶ 36 Coyle testified that 47th Street was generally open to the public, and remained open to the
public during the festival, subject to the statutory restrictions. The bodycam recording depicts
Jones walking down the middle of the street while the festival is ongoing. Both Coyle and Jones
testified consistently with the video.
¶ 37 Based on this record, no rational factfinder could conclude that the State proved the crossing
exception did not apply beyond a reasonable doubt. There is nothing in the record from which we
could conclude 47th Street is not a public right of way, and it is undisputed that Jones’s conduct
consisted only of walking on 47th Street. Moreover, his testimony that he was walking across the
festival to go home, and thus not spending time at the festival or engaging in any behavior that
would deviate from only traveling on 47th Street to cross the festival, was uncontested. The
evidence shows Jones did not stop, interact with anyone, visit a booth, buy food or shop; he just
crossed the festival by walking on the street. Finally, there was no evidence whatsoever that Jones
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was not carrying his concealed firearm according to statutory requirements. It follows that the
record lacks any evidence, let alone sufficient evidence, that the State disproved the crossing
exception beyond a reasonable doubt, making reversal for insufficient evidence appropriate.
Bardsley, 2017 IL App (2d) 150209, ¶ 17.
¶ 38 CONCLUSION
¶ 39 Jones successfully raised the crossing exception as an affirmative defense, and the State
then failed to disprove it beyond a reasonable doubt. Accordingly, the evidence was insufficient
to sustain the verdict.
¶ 40 Reversed.
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