People v. Cunningham

• Decision Date: 29 March 2019
• Docket Number: No. 1-16-0709,1-16-0709
• Citation: 126 N.E.3d 600,430 Ill.Dec. 512,2019 IL App (1st) 160709
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daekwon CUNNINGHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 160709

126 N.E.3d 600

430 Ill.Dec. 512

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Daekwon CUNNINGHAM, Defendant-Appellant.

No. 1-16-0709

Appellate Court of Illinois, First District, Fifth Division.

Opinion filed March 29, 2019

James E. Chadd, Patricia Mysza, and Todd T. McHenry, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Doulas P. Harvath, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 The State charged defendant, Daekwon Cunningham, with unlawful use of a weapon (UUW) and reckless discharge of a firearm. Because defendant allegedly possessed the firearm while in public housing the State sought to have defendant sentenced as a Class 3 felon. Following a bench trial, the circuit court of Cook County convicted defendant of both counts and sentenced him to three years' imprisonment for Class 3-felony UUW and a concurrent two-year term of imprisonment for reckless discharge of a firearm. Defendant appeals his convictions arguing the UUW statute is unconstitutional on its face and, therefore, his conviction for UUW is void; and the State failed to prove every element of reckless discharge of a firearm beyond a reasonable doubt and his conviction must be reversed.

¶ 2 For the following reasons, we affirm in part and reverse in part.¹

¶ 3 I. BACKGROUND

¶ 4 The State charged defendant with unlawful use of a weapon and reckless discharge of a firearm based on defendant having shot himself in the leg. The charging instrument stated the State sought to have defendant sentenced as a Class 3 felon because the incident took place in an apartment owned by the Chicago Housing Authority and used as public housing. Count I of the information against defendant reads, in pertinent part, as follows:

"Daekwon Cunningham committed the offense of UNLAWFUL USE OF A WEAPON in that HE, KNOWINGLY CARRIED OR POSSESSED CONCEALED ON OR ABOUT HIS PERSON ANY FIREARM, AT A TIME WHEN HE WAS NOT ON HIS OWN LAND OR IN HIS OWN ABODE OR FIXED PLACE OF BUSINESS, IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 24-1(a)(4) OF THE ILLINOIS COMPILED STATUTES * * * AND THE STATE SHALL SEEK TO SENTENCE HIM AS A CLASS 3 OFFENDER PURSUANT TO SECTION 24-1(c)(1.5) IN THAT THE VIOLATION OCCURRED IN RESIDENTIAL PROPERTY OWNED, OPERATED OR MANAGED BY A PUBLIC HOUSING AGENCY OR LEASED BY A PUBLIC HOUSING AGENCY AS PART OF A SCATTERED SITE OR MIXED-INCOME DEVELOPMENT."

¶ 5 The State called three witnesses at defendant's bench trial: Chicago Police Department Sergeant Joseph Nemcovic, Chicago Police Department Officer Brendan Gill, and Kenya Gayton, whose apartment the incident occurred in.

¶ 6 Gayton testified she lived in her apartment with her boyfriend and daughter. When Gayton arrived home on the day defendant was shot, defendant, Gayton's boyfriend Jerry, and two others were in the apartment. Gayton saw them running from the area of two back bedrooms. Defendant exclaimed, "I'm shot, I'm shot." Gayton initially believed the exclamation was a prank, so she went to her bedroom. When she returned to the living room she saw defendant lying on the floor bleeding from his right leg. Jerry and the two others were also present. Jerry was holding a gun. Gayton took the gun from Jerry and put it in a different apartment in the building. Gayton returned to her apartment and police arrived soon thereafter. Gayton was evasive at first but eventually retrieved the gun and gave it to police. Gayton testified that at the time defendant was shot he had been staying in her apartment for about one week, but defendant did not pay any rent or bills.

¶ 7 Sergeant Nemcovic testified he responded to Gayton's apartment for a report of a gunshot victim. Sergeant Nemcovic testified defendant stated he was shot outside while walking up the street. Based on his observations of the location of the gunshot wound and defendant's clothing Sergeant Nemcovic did not believe that defendant was shot outside. An ambulance arrived to transport defendant to the hospital. While en route Sergeant Nemcovic learned another officer had recovered a shell casing from the back bedroom of Gayton's apartment. Officer Gill testified he recovered the shell casing from the floor of the far rear bedroom in Gayton's apartment. Sergeant Nemcovic testified that once at the hospital defendant apologized to Sergeant Nemcovic for not telling him the truth earlier and stated he (defendant) had shot himself.

¶ 8 At the close of the State's case defendant moved for a directed verdict. Defendant argued that because he had stayed in the apartment for a week he was in his own abode for purposes of the UUW statute. Defendant also argued the State failed to elicit any evidence he acted recklessly, and the evidence was only that he shot himself accidentally. The trial court denied defendant's motion for a directed verdict. Defendant did not testify and did not present any evidence. The court found defendant guilty of UUW and reckless discharge of a firearm and sentenced him to three years' imprisonment for UUW and a concurrent term of two years' imprisonment for reckless discharge.

¶ 9 This appeal followed.

¶ 10 II. ANALYSIS

¶ 11 Defendant challenges the constitutionality of the UUW statute and the sufficiency of the evidence to prove reckless discharge of a firearm. "The question of whether a statute is unconstitutional is a question of law, which this court reviews de novo ." People v. Chairez , 2018 IL 121417, ¶ 15, 423 Ill.Dec. 69, 104 N.E.3d 1158.

"When considering a challenge to the sufficiency of the evidence, a reviewing court must determine whether, viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the required elements beyond a reasonable doubt. [Citation.] [I]t is not the function of this court to retry the defendant. [Citation.] All reasonable inferences from the evidence must be drawn in favor of the prosecution. [I]n weighing evidence, the trier of fact is not required to disregard inferences which flow normally from the evidence before it, nor need it search out all possible explanations consistent with innocence and raise them to a level of reasonable doubt. [Citations.] We will not reverse the trial court's judgment unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of the defendant's guilt. [Citation.]" (Internal quotation marks omitted.) People v. Newton , 2018 IL 122958, ¶ 24, 427 Ill.Dec. 881, 120 N.E.3d 948.

¶ 12 A. Constitutionality of UUW Statute

¶ 13 The trial court convicted defendant for violating section 24-1(a)(4), (c)(1.5) (in public housing) of the Criminal Code of 2012 (Criminal Code) which reads, in pertinent part, as follows:

"(a) A person commits the offense of unlawful use of weapons when he knowingly:

* * *

(4) Carries or possesses in any vehicle or concealed on or about his person except when on his land or in his own abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, any pistol, revolver, stun gun or taser or other firearm, except that this subsection (a) (4) does not apply to or affect transportation of weapons that meet one of the following conditions:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shipping box, or other container by a person who has been issued a currently valid Firearm Owner's Identification Card;

* * *

(c) Violations in specific places.

* * *

(1.5) A person who violates subsection 24-1(a)(4) * * * in residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development * * * or on any public way within 1,000 feet of the real property comprising any * * * residential property owned, operated, or managed by a public housing agency or leased by a public housing agency as part of a scattered site or mixed-income development commits a Class 3 felony." 720 ILCS 5/24-1(a)(4), (c)(1.5) (West 2014).

The statutory language of section 24-1(a)(4) amounts to a comprehensive ban on the possession of an operable firearm for self-defense outside of the home which the United States Court of Appeals for the Seventh Circuit found unconstitutional in Moore v. Madigan , 702 F.3d 933, 942 (7th Cir. 2012). This court followed suit and found "nearly identical" language in section 24-1(a)(4) facially unconstitutional in People v. Gamez , 2017 IL App (1st) 151630, ¶ 14, 416 Ill.Dec. 909, 86 N.E.3d 1194. Defendant acknowledged that our supreme court recently held that the "specific places" provision of the UUW statute ( section 24-1(c) (1.5) ) creates separate offenses from the unconstitutional blanket prohibition on the possession of firearms outside the home for self-defense stated in section 24-1(a)(4). Chairez , 2018 IL 121417, ¶ 18, 423 Ill.Dec. 69, 104 N.E.3d 1158 (" section 24-1(c) (1.5) is separate and apart from the sentencing provision of the UUW statute, section 24–1(b). Thus, we presume that the General Assembly intended that, if proven at trial, the specific locations enumerated in section 24-1(c) (1.5) are to be separate offenses that carry their own enhanced sentences different from the prescribed sentences in section 24-1(b)."). Consistent with its holding that each "specific place" constitutes a separate offense, our supreme court vacated the trial court's judgment finding the entirety of section 24-1(c) (1.5) unconstitutional because the defendant in that case "was convicted of violating section 24-1(a)(4), (c)(1.5) by being within 1000 feet of a public park, [therefore] the various other ‘specific places’ offenses set forth in section 24-1(c) (1.5) were not before the circuit court, and *...