People v. Lee, 2019 IL App (1st) 162563 (February). Episode 605 (Duration 5:29)
Exactly what does the state have to prove in regards to possessing a gun with defaced serial number?Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
The State indicted defendant for the offense of defacing identification marks of a firearm and two counts of AUUW.
Police were undergoing drug surveillance when they spotted a suspicious car and van.
Upon further observation men were seen getting out of the vehicles and opened the trunk of the car. 2 men were seen putting guns in their waistband. When they saw the police they ran. They were arrested and defendant was seen tossing a black revolver.
The serial number was damaged as though a tool was taken to it to scratch it out.
Defacing Identification Marks
The Criminal Code of 2012 (Criminal Code) defines the offense of defacing identification marks of a firearm as follows:
“(a) Any person who shall knowingly or intentionally change, alter, remove or 1-16-2563 9 obliterate the name of the importer’s or manufacturer’s serial number of any firearm commits a Class 2 felony. (b) 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.
The Jury Instruction
Defendant objected to the use of Illinois Pattern Jury Instructions, Criminal, No. 18.24 (3d ed. 1992), modified, arguing that the “knowing possession” must attach not only to the possession of the firearm, but also to the defacement of the firearm’s serial number.
The State argued it only had to prove defendant knowingly possessed a firearm that was defaced, and Illinois law did not require the State to also prove that defendant knew that the firearm was defaced.
Trial Court Instruction
The court found that under People v. Falco, 2014 IL App (1st) 111797, ¶ 18, and People v. Stanley, 397 Ill. App. 3d 598, 609 (2009), the statute was clear that the State only had to prove that defendant knowingly possessed the firearm and that the firearm’s serial number was altered, obliterated, or removed.
The Jury Note
The jury sent another note asking,
“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”
The court stated to the parties that “Under the Falco case and the Stanley case, the State must prove the knowing possession of the firearm of the defendant but need not prove the defendant’s knowledge of the character of the firearm.”
Defendant renewed his objection, arguing that knowledge of the defacement was an element of the statute despite the case law and that any other reading meant that the offense de facto became a strict liability offense.
The State argued that the court should provide a direct answer to the question, and defendant argued that the jury has the law under their instructions and that no further instructions were necessary.
The trial court found that the note presented a question of law that the court was obligated to answer. The court overruled defendant’s objection and sent a note back to the jury, stating “no, the State must prove beyond a reasonable doubt the knowing possession of the firearm. Proof of knowledge of the defacement is not required.”
The next morning the jury began its deliberations at 10:15 a.m. At 1:25 p.m., the jury returned its verdict, finding defendant guilty of AUUW, based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq.); guilty of aggravated unlawful use of a weapon, based on not having a currently valid firearm owner’s identification card; and guilty of defacing identification marks of a firearm.
The court sentenced defendant to 30 days in jail, with credit for time defendant already served; 100 hours of community service; and 24 months’ probation.
Defendant argues the State failed to prove him guilty beyond a reasonable doubt because the State had to prove knowledge of the defacement and not simply knowledge of possession of a firearm with defaced identification marks, and the State did not present evidence proving beyond a reasonable doubt that defendant knew the identification markings were defaced on the firearm he possessed.
Defendant claims that his conviction should be reversed.
People v. Stanley
In that case we found that under section 24-5(b) of the Criminal Code, the State is only required to prove beyond a reasonable doubt that defendant knowingly possessed a firearm and that the firearm’s serial number was defaced.
“The State, however, need not prove knowledge of the character of the firearm. Though the defacement unmistakably bears upon the commission of the offense, it is not an element of the offense. We find support for this interpretation in the Committee Comments to section 4-9, explaining that: ‘[A] mental-state requirement should be implied as an application of the general rule that an offense consists of an act accompanied by a culpable mental state, as expressed in 4-3.’” People v. Stanley, 397 Ill. App. 3d 598, 609 (2009).
The knowledge required applies only to the possessory component of the offense.
Our interpretation is in conformance with the legislature’s recognition of the dangerousness posed by defaced weapons. Thus, we perceive that the mere possession of such weapons is the evil sought to be remedied by this offense to, inter alia, deter the possession of altered weapons. This court has had a number of opportunities to revisit our holding in Stanley, and we have repeatedly reaffirmed Stanley and its reasoning.
Again, we note that had the legislature intended to impose such a knowledge requirement, it could easily have done so by amending section 18-4 to specify a mental state for the circumstances elevating the offense to its aggravated form. This court, and the legislature, has had ample opportunity to consider the issue of knowledge attaching to the defacement of the firearm as well as its possession.
This court has consistently held that under section 24-5(b) the State need only prove knowledge of possession of a gun that has defaced identification marks, and the legislature has not acted to change the law.
We find the State was not required to prove that defendant knew the firearm he possessed was defaced, and the jury instruction did not misstate the law.
Episode 009 – People v. Falco, 2014 IL App (1st) 111797 (August) (jury instructions said nothing at all about the mental state).
The Trial Court’s Answer to a Question From the Jury
Recall that during deliberations the jury asked:
“Does it matter that the defendant actually knows the identification marks are defaced on a firearm in his possession?”
Defendant argues the circumstances were not appropriate for the trial court to answer the jury’s question because the giving of an answer would cause, and did cause, the court to express an opinion that impermissibly directed a verdict in favor of the State.
The General Jury Question Rule
“The general rule when a trial court is faced with a question from the jury is that the court has a duty to provide instruction to the jury when the jury has posed an explicit question or requested clarification on a point of law arising from facts about which there is doubt or confusion. Nevertheless, a trial court may exercise its discretion to refrain from answering a jury question under appropriate circumstances. Appropriate circumstances include when the instructions are readily understandable and sufficiently explain the relevant law, where further instructions would serve no useful purpose or would potentially mislead the jury, when the jury’s inquiry involves a question of fact, or where the giving of an answer would cause the court to express an opinion that would likely direct a verdict one way or another. Further, the court should not submit new charges or new theories to the jury after the jury commences its deliberations.”
People v. Millsap, 189 Ill. 2d 155, 160-61 (2000).
Did The Court Have A Duty To Answer?
In this case the issue of whether the trial court should have responded to the jury’s question turns on whether the court had a duty to answer. See People v. Gray, 346 Ill. App. 3d 989, 992 (2004) (“Generally, a trial court has a duty to answer when a jury raises (1) an explicit question (2) on a point of law (3) about which the jury indicates doubt or confusion.”).
The jury’s question here was explicit; it was a question of law because it dealt with the mens rea requirement and the construction of its jury instruction (Leach, 2011 IL App (1st) 090339, ¶ 17 (“the construction of a jury instruction is a question of law”)); and the jury expressed confusion over what the State was required to prove defendant had knowledge of.
We cannot say that the trial court’s decision to answer the jury’s question was arbitrary or unreasonable, or that no reasonable court would take the view adopted by the trial court here. Therefore, the trial court did not abuse its discretion deciding to answer the jury’s question. The court’s answer to the jury’s question did not express an opinion on an issue of fact. The court’s answer simply stated that the knowledge requirement applied to the possession of the weapon and not to the defacement of the weapon’s serial number.
The court did not abuse its discretion by choosing to answer the jury’s question, and the court’s answer did not misstate the law.
Therefore, the trial court did not err in providing its answer to the jury’s question.
OK. What About This Bullet Testimony?
“[O]therwise relevant evidence is inadmissible if its probative value is outweighed by such dangers as unfair prejudice, jury confusion, or delay.” People v. Walston, 386 Ill. App. 3d 598, 610 (2008). “Evidence is considered ‘relevant’ if it has any tendency to make the existence of any fact that is of consequence to the determination of an action more or less probable than it would be without the evidence.” People v. Illgen, 145 Ill. 2d 353, 365-66 (1991). Evidence is admissible if it is directly probative of an element of the offense. See People v. Hester, 271 Ill. App. 3d 954, 958 (1995) (“defendant’s prior conviction was properly admitted as evidence directly probative of that element of the offense, similar to the admission of evidence relevant to any other element of an offense”).
Evidence is inadmissible, and its admission may be reversible error, if it has little to no probative value and its only purpose is to stir the emotions of the jury. See People v. Orange, 168 Ill. 2d 138, 161 (1995); People v. Iniguez, 361 Ill. App. 3d 807, 817 (2005). Defendant was charged with, inter alia, aggravated unlawful use of a weapon based on not having a currently valid license under the Firearm Concealed Carry Act (430 ILCS 66/1 et seq. 720 ILCS 5/24-1.6(a)(3)(A-5).
Officer Serio testified that he examined both the gun and the bullets.
The Hollow Points
He said there were two types of bullets, full metal jacket and hollow point, and that they were live rounds. This testimony was proper because it relates to an element of one of the offenses charged. However, the State proceeded to elicit further testimony about the dangerous character of the hollow point bullets.
The character of the bullets is not an element of any of the offenses the State charged defendant with violating. There is no relationship between the charges against defendant and Officer Serio’s testimony that hollow point bullets are designed to do more damage to their target by opening up like a flower and are different from full metal jacket bullets because a full metal jacket bullet will maintain its shape when fired.
This testimony provided no probative value while being highly prejudicial.
The State introduced no facts to show defendant knew two of the bullets in the gun at issue were hollow point bullets or that defendant knew the dangerous nature of these bullets.
A commonsense assessment of the evidence reveals that it was closely balanced.
We also find the testimony describing the dangerous nature of the bullets found in the gun as designed to inflict greater damage to their target could have affected the weight the jury attributed to defendant’s testimony and caused it to render a verdict on an improper basis. Accordingly, we find the evidence is so closely balanced that the error alone threatened to tip the scales of justice against defendant.
We find defendant has shown clear error in a closely balanced case, and he is therefore entitled to relief under the first prong of the plain-error doctrine.
Therefore, defendant’s convictions for defacing identification markings of a firearm and for two counts of AUUW are reversed, and the cause remanded for a new trial.