People v. Marin, No. 1-01-1080.

CourtUnited States Appellate Court of Illinois
Citation342 Ill. App.3d 716,277 Ill.Dec. 285,795 N.E.2d 953
Docket NumberNo. 1-01-1080.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gabriel MARIN, Defendant-Appellant.
Decision Date11 August 2003

795 N.E.2d 953
342 Ill.
App.3d 716
277 Ill.Dec.
285

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Gabriel MARIN, Defendant-Appellant

No. 1-01-1080.

Appellate Court of Illinois, First District, First Division.

August 11, 2003.


795 N.E.2d 955
Michael J. Pelletier (Jodi L. Garvey, of counsel), Office of the State Appellate Defender, Chicago, for Appellant

Richard A. Devine (Renee Goldfarb, John Nowak and Daniel Maloney, of counsel), Cook County State's Attorney, Chicago, for Appellee.

Presiding Justice GORDON delivered the opinion of the court:

Following a bench trial, defendant, Gabriel Marin, was convicted of aggravated unlawful use of a weapon and sentenced to 24 months of probation. On appeal, defendant contends he was not proven guilty beyond a reasonable doubt. Defendant further contends that the aggravated unlawful use of a weapon statute (720 ILCS 5/24-1.6 (West 2002)), under which he was convicted, is unconstitutionally overbroad, thereby violating his right to due process. We affirm.

BACKGROUND

Three witnesses testified during defendant's bench trial. Chicago police officer Sean Loughran testified that while on patrol with his partner, he observed defendant and three other individuals standing in front of a house at 5753 South Campbell Street in Chicago. Loughran stated that defendant was holding a small, shiny metallic object in his right hand, which Loughran believed to be a gun. Loughran's partner stopped the unmarked police car about 25 feet away from the four individuals and, when Loughran emerged from the car, defendant dropped the suspected gun and Loughran heard it hit the ground. After the officers apprehended the four men, Loughran recovered a semiautomatic,.22-caliber, loaded handgun from the porch of the house. The men were handcuffed and searched, but nothing further was recovered. Defendant was taken to the police station after the three other individuals, who were minors, were released.

Loughran testified that upon arriving at the police station, defendant waived his Miranda rights. Defendant then told Loughran that he purchased the handgun for $80 or $90 and was carrying it for a street gang, the "Party People," with which he was affiliated. He further stated that the gun was not worth more than $50.

Andrew Martinez, a minor who was detained with defendant, testified that he, defendant and two other young men were standing on the porch of 5753 South Campbell when they were approached by two police officers. Martinez stated that he was holding the gun when the police arrived and that he dropped the gun in the grass. Martinez asserted that, although he told the police the gun was his, the police implicated defendant because Martinez was a minor and defendant was not.

Finally, defendant testified at trial that he and his brother were walking his dog when a friend called him over to the porch at 5753 South Campbell. After speaking with the individuals on the porch, he returned to walking his dog. As he walked away from the porch, however, two police officers arrived and detained him and three other individuals who were on the porch. After asking the four young men their ages, the officers took defendant to the police station. Defendant denied that he was holding a gun. He further denied that he was a member of a street gang and that he made a statement to the police officers at the police station.

The trial court found defendant guilty of aggravated unlawful use of a weapon and sentenced him to 24 months of probation. The court noted that it found Officer Loughran's testimony to be credible, while inconsistencies between the testimony of

795 N.E.2d 956
Martinez and defendant rendered them not credible as witnesses

ANALYSIS

On appeal, defendant contends that the aggravated unlawful use of a weapon statute (aggravated UUW) is unconstitutional on the grounds that the statute requires no culpable mental state and thereby punishes innocent conduct, resulting in the contravention of the due process provisions of both the state and federal constitutions. Defendant further contends that he was not proven guilty of aggravated UUW beyond a reasonable doubt. For the following reasons, we find the statute to be constitutional and affirm defendant's conviction.

With respect to defendant's due process contentions, we initially note that this court recently rejected this exact argument in the cases of People v. McGee, 341 Ill.App.3d 1029, 276 Ill.Dec. 605, 794 N.E.2d 855 (2003), and People v. Grant, 339 Ill.App.2d 792, 274 Ill.Dec. 304, 791 N.E.2d 100 (2003). We do the same here for the following reasons.

The aggravated UUW statute provides:

"(a) A person commits the offense of aggravated unlawful use of a weapon when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed on or about his or her person except when on his or her land or in his or her abode or fixed place of business any pistol, revolver, stun gun or taser or other firearm; or
(2) Carries or possesses on or about his or her person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his or her own land or in his or her own abode or fixed place of business, any pistol, revolver, stun gun or taser or other firearm; and
(3) One of the following factors is present:
(A) the firearm possessed was uncased, loaded and immediately accessible at the time of the offense; or
(B) the firearm possessed was uncased, unloaded and the ammunition for the weapon was immediately accessible at the time of the offense; or
(C) the person possessing the firearm has not been issued a currently valid Firearm Owner's Identification Card; or
(D) the person possessing the weapon was previously adjudicated a delinquent minor under the Juvenile Court Act of 1987 for an act that if committed by an adult would be a felony; or
(E) the person possessing the weapon was engaged in a misdemeanor violation of the Cannabis Control Act or in a misdemeanor violation of the Illinois Controlled Substances Act; or
(F) the person possessing the weapon is a member of a street gang or is engaged in street gang related activity, as defined in Section 10 of the Illinois Streetgang Terrorism Omnibus Prevention Act; or
(G) the person possessing the weapon had a[n] order of protection issued against him or her within the previous 2 years; or
(H) the person possessing the weapon was engaged in the commission
795 N.E.2d 957
or attempted commission of a misdemeanor involving the use or threat of violence against the person or property of another; or
(I) the person possessing the weapon was under 21 years of age and in possession of a handgun as defined in Section 24-3, unless the person under 21 is engaged in lawful activities under the Wildlife Code or described in subsection 24-2(b)(1), (b)(3), or 24-2(f).
* * *
(c) This Section does not apply to or affect the transportation or possession of weapons that:
(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.
(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; a second or subsequent offense is a Class 2 felony. Aggravated unlawful use of a weapon by a person who has been previously convicted of a felony in this State or another jurisdiction is a Class 2 felony." 720 ILCS 5/24-1.6 (West 2002).

Defendant contends that, because the statute only requires a knowing mental state and does not require criminal intent, it sweeps too broadly and permits felony convictions for wholly innocent conduct in violation of substantive due process. By way of example, defendant asserts that a hunter who receives a call about an emergency at home, thereby forgetting to unload or case his gun before he drives away, would be guilty of a felony. Similarly, he asserts that a Good Samaritan, who does not have a firearm owner's identification card, would be guilty of a felony if he found a gun on the street and, not wanting a neighborhood child to find it, put it in his car to take to the police station. Defendant argues that because the aggravated UUW statute punishes such wholly innocent conduct, it is not sufficiently confined to solely remedy the particular purpose targeted by the legislature, which he alleges is to limit gun possession by gang members and organized crime figures. The State responds to defendant's contentions by arguing that the aggravated UUW statute has valid applications and that the statute is not vague as applied to defendant under the facts of this case. Because the evidence was sufficient to establish that defendant was a gang member and was on gang-related business when he was apprehended with a loaded weapon, we agree that a vagueness challenge would fail. However, the basis of defendant's constitutional challenge is not vagueness, but overbreadth; and vagueness and overbreadth are two different legal principles. See People v. Greco, 204 Ill.2d 400, 416, 274 Ill.Dec. 73, 790 N.E.2d 846, 856 (2003) (a statute is unconstitutionally vague where its prohibitions are not sufficiently definite "to give a person of ordinary intelligence fair warning as to what conduct is prohibited," and it does not provide "sufficiently definite standards for law enforcement officers and triers of fact that its application does not depend merely on their private conceptions"); compare People v. Wright, 194 Ill.2d 1, 24, 251 Ill.Dec. 469, 740 N.E.2d 755, 767 (2000) (a statute is overbroad where it does not bear a reasonable relationship to a public interest to be served and the means adopted are not a reasonable method of accomplishing the...

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46 practice notes
  • Kachalsky v. Cacace, No. 10-CV-5413 (CS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2011
    ...("New York has a strong interest in the safety of its residents and territory from handgun violence . . . ."); People v. Marin, 795 N.E.2d 953, 958-959, 962 (Ill. Ct. App. 2003) ("The overall purpose of the . . . statute is to protect the public from gun violence. This purpos......
  • People v. Aguilar, No. 1–09–0840.
    • United States
    • United States Appellate Court of Illinois
    • February 23, 2011
    ...831 N.E.2d 18; [408 Ill.App.3d 147] People v. Austin, 349 Ill.App.3d 766, 285 Ill.Dec. 768, 812 N.E.2d 588 (2004); People v. Marin, 342 Ill.App.3d 716, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003); McGee, 341 Ill.App.3d at 1032, 276 Ill.Dec. 605, 794 N.E.2d 855. The State notes that the only cas......
  • People v. Fields, No. 1–13–0209.
    • United States
    • United States Appellate Court of Illinois
    • December 31, 2014
    ...health, comfort, safety and welfare even though the prohibitions invade an individual's right of liberty). In People v. Marin, 342 Ill.App.3d 716, 723–24, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003), this court looked at the history and language of the AUUW statute and determined that its purpo......
  • People v. Mosley, No. 115872.
    • United States
    • Supreme Court of Illinois
    • February 20, 2015
    ...382 Ill.Dec. 240, 12 N.E.3d 519 ; People v. Pulley, 345 Ill.App.3d 916, 924, 281 Ill.Dec. 332, 803 N.E.2d 953 (2004) ; People v. Marin, 342 Ill.App.3d 716, 723–24, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003) ; see also People v. Williams, 60 Ill.App.3d 726, 727, 18 Ill.Dec. 132, 377 N.E.2d 285 ......
  • Request a trial to view additional results
46 cases
  • Kachalsky v. Cacace, No. 10-CV-5413 (CS)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • September 6, 2011
    ...2007) ("New York has a strong interest in the safety of its residents and territory from handgun violence . . . ."); People v. Marin, 795 N.E.2d 953, 958-959, 962 (Ill. Ct. App. 2003) ("The overall purpose of the . . . statute is to protect the public from gun violence. This purpose is acco......
  • People v. Aguilar, No. 1–09–0840.
    • United States
    • United States Appellate Court of Illinois
    • February 23, 2011
    ...831 N.E.2d 18; [408 Ill.App.3d 147] People v. Austin, 349 Ill.App.3d 766, 285 Ill.Dec. 768, 812 N.E.2d 588 (2004); People v. Marin, 342 Ill.App.3d 716, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003); McGee, 341 Ill.App.3d at 1032, 276 Ill.Dec. 605, 794 N.E.2d 855. The State notes that the only cas......
  • People v. Fields, No. 1–13–0209.
    • United States
    • United States Appellate Court of Illinois
    • December 31, 2014
    ...health, comfort, safety and welfare even though the prohibitions invade an individual's right of liberty). In People v. Marin, 342 Ill.App.3d 716, 723–24, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003), this court looked at the history and language of the AUUW statute and determined that its purpo......
  • People v. Mosley, No. 115872.
    • United States
    • Supreme Court of Illinois
    • February 20, 2015
    ...382 Ill.Dec. 240, 12 N.E.3d 519 ; People v. Pulley, 345 Ill.App.3d 916, 924, 281 Ill.Dec. 332, 803 N.E.2d 953 (2004) ; People v. Marin, 342 Ill.App.3d 716, 723–24, 277 Ill.Dec. 285, 795 N.E.2d 953 (2003) ; see also People v. Williams, 60 Ill.App.3d 726, 727, 18 Ill.Dec. 132, 377 N.E.2d 285 ......
  • Request a trial to view additional results

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