                         No. 3--07--0016
_________________________________________________________________
Filed March 11, 2008
                              IN THE

                  APPELLATE COURT OF ILLINOIS

                          THIRD DISTRICT

                            A.D., 2008

THE PEOPLE OF THE STATE         ) Appeal from the Circuit Court
OF ILLINOIS,                    ) of the 10th Judicial Circuit,
                                ) Peoria County, Illinois,
     Plaintiff-Appellee,        )
                                )
     v.                         ) No. 06--CF--356
                                )
MICHAEL DIGGINS,                ) Honorable
                                ) Stephen Kouri,
     Defendant-Appellant.       ) Judge, Presiding.
________________________________________________________________

JUSTICE HOLDRIDGE delivered the Opinion of the Court:
________________________________________________________________

     The defendant, Michael Diggins, was convicted of aggravated

unlawful use of weapons following a jury trial and was sentenced

to a term of 30 months imprisonment.     On appeal, defendant

maintains that the trial court erred: (1) in precluding defense

counsel from arguing that the center console of the defendant’s

automobile was a "case" during closing arguments; (2) in

instructing the jury that a center console is not a "case" under

Illinois law; (3) in refusing defendant’s proposed jury

instruction defining aggravated unlawful use of weapons; (3) in

refusing to allow defendant to argue that the laws of Florida and

other states would allow defendant to transport guns and

ammunition in the manner he was transporting them in Illinois;
and in finding defendant guilty beyond a reasonable doubt.

Because we find the trial court erred in holding that the center

console was not a case, we reverse and remand for a new trial.

     Peoria police officers stopped defendant’s vehicle for

making a right turn without signaling on March 24, 2006.    An

officer asked the defendant for his license and proof of

insurance.   The defendant obtained his insurance card for the

glove box and handed it to the officer.   When the officer asked

about defendant’s driver’s licence, defendant told the officer

that defendant had a firearm owner’s identification card.    The

officer asked the defendant if he had a gun, and defendant

responded "Yes, I do."   The defendant pointed to the center

console of his vehicle and told the officer that there were two

firearms in the console.   The officer then told the defendant not

to reach in the console and he and his partner handcuffed

defendant and defendant’s passenger and removed them from the

vehicle.

     One officer then entered the vehicle and observed that the

lid on the center console was raised and that a key was inside

the lock of the console.   The officer lifted the console lid

further and observed two handguns, a chrome revolver and a semi-

automatic pistol.   The officer also observed six rounds of .357

ammunition and a magazine loaded with .45 ammuntion.   On cross-

examination, the officer confirmed that the lid of the console


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was open and that the key was in the locking mechanism of the

console.

     The defendant and his passenger each testified that the

center console was locked and the keys thereto were kept in the

glove box of the car.    Both described the center console as being

a fully enclosed space between the driver and the passenger in

the front seat of the vehicle.

     Prior to trial, the court granted the People’s motion in

limine to prohibit any argument that the defendant was a resident

of Florida and that the laws pertaining to the transportation of

firearms was different in Florida and in every state between

Florida and Illinois.

     At the close of all the evidence, defense counsel sought a

jury instruction, based upon section 24-1.9 of the Illinois

Criminal Code (720 ILCS 5/24-1.6 (West 2004)), to instruct the

jury that under Illinois law a person is not guilty of aggravated

unlawful use of weapons if the weapons are 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 (FOID card).       The record was un-controverted

that the defendant had a current valid FOID card, and that the

weapons were unloaded.

     The trial judge denied the jury instruction sought by the

defendant.


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     On the People’s motion, the defendant was prohibited from

making arguments during closing argument that the location in

which the officers found the firearms was a "case" or "other

container" under section 24-1.6.       During the People’s closing

argument, the prosecutor argued that the center console was not a

"case."

     During deliberations, the jury queried the trial judge,

asking "what is the legal definition of a case?"       Over defense

objection, the trial judge to the jury that a center console was

not a "case" under Illinois law.       The jury then quickly returned

a guilty verdict.

     Defendant maintains on appeal that the trial court erred

when it refused to allow him to argue and establish that the

center console of his car was a "case" under an exception to the

unlawful use of weapons statute.       The question presented concerns

the construction and application of a statute to undisputed facts

and therefore raises a question of law.       A question of law is

considered de novo.   People v. Stanitz, 367 Ill. App. 3d 3d 980

(2006).

     Section 24-1.6 of the Illinois Criminal Code mandated that a

person is not guilty of aggravated unlawful use of a weapon if

that weapon is "unloaded and enclosed in a case, firearm carrying

box, shipping box, or other container by a person who has been




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issued a currently valid Firearm Owner’s Identification Card."

720 ILCS 5/24-1.6 (West 2004).

     In the instant matter, the uncontested testimony revealed

that the defendant owned the weapons, and the weapons were stored

in the center console and were unloaded.   The defendant provided

a valid FOID card to the arresting officer.    Thus, the only

question remaining was whether the center console constituted a

"case" under the statute.

     In People v. Cameron, 336 Ill. App. 3d 548 (2002), the

Fourth District of this court affirmed a trial court’s ruling

that a glove compartment of the defendant’s car was not a "case"

or "other container" under section 24-1.6.    According to the

Cameron court:

          "Under the doctrine of ejusdem generis, when

          a statutory clause specifically describes

          several classes of things and then includes

          "other things," the word "other" is

          interpreted as meaning ‘other such like.’" *

          * * People v. Davis, 199 Ill.2d 130, 138

          (1998). * * * Applying the doctrine of

          ejusdem generis and strictly construing the

          container exemption, we determine that a

          vehicle’s glove compartment is not an "other

          container" under the container exemption.    A


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          glove compartment is fundamentally different

          from a case, firearm carrying box, or

          shipping box because those receptacles are

          portable whereas a glove compartment is a

          fixed area in the dashboard of a vehicle.

          Therefore, a glove compartment is not an

          "other container" similar to the ones

          enumerated in the container exemption."

          Cameron, 336 Ill. App. 3d at 548.

     The Cameron court focuses its analysis on the fact that

carrying boxes and shipping boxes are portable.   However, there

is nothing in the plain meaning of the word "case" "firearm

carrying box," "shipping box" or "other container" which when

considered together indicate that the legislature intended the

statutory exemption to apply only to portable carrying devices.

There is nothing in the plain meaning of the statute to indicate

a limitation on the definition of a case.   The statute does not

say "portable" case, firearm box, shipping box or other

container.

        If the legislature intended the word "case" to be limited

to portable containers, it would have stated so in the statute.

For example, in the Illinois Wildlife Code (520 ILCS 5) the

legislature defined "case" for the purposes of describing a

container used to contain a weapon as:


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           "Case. Case means a container specifically

           designed for the purpose of housing a gun or

           bow and arrow device which completely

           encloses such gun or bow and arrow device by

           being zipped, snapped, buckled, tied or

           otherwise fastened with no portion of the gun

           or bow and arrow device exposed."   520 ILCS

           5/1.2b-1 (West 2004).

     When the legislature intended for the word "case" to have a

special meaning, as in the Wildlife Code, it wrote that special

meaning into the statute.    In the Criminal Code, at issue in the

instant matter, there is no special meaning attached to the word

"case."   The omission of a special meaning indicates that the

term is to have its ordinary meaning.    People v. Smythe, 352 Ill.

App. 3d 1056, 1059 (2004).

     Webster’s dictionary defines the term "case" as "a box or

receptacle to contain or hold something."    Webster’s Third New

International Dictionary 346 (1986).    Further, the statute

requires that the weapon be "enclosed" in a "case."     To "enclose"

means "to envelop" (Webster’s Third New International Dictionary

746 (1986) and to "envelop" means "to enclose completely within a

garment or other covering" (Webster’s Third New International

Dictionary 759 (1986).   Thus, as the court noted in Smythe,

"given the plain meaning of term in light of all the relevant


                                   7
provisions of the statute, it is evident that the term "case"

refers to an item that completely encloses the weapon in a

firearm carrying box, shipping box, or other container."       Smythe,

352 Ill. App. 3d at 1059.

     We note that the court in Smythe referred to the legislative

history of this provision of the criminal code, wherein the

sponsoring legislator referred to the Wildlife Code as his

understanding of the meaning of the word "case" in Criminal Code.

See, Smythe, 352 Ill. App. At 1060.    However, we would not resort

to legislative history, as we find the common definition of the

term is sufficient and unambiguous.    Where the term is clear and

unambiguous, there is no need to resort to legislative history

for clarification.    See, People v. Hicks, 164 Ill.2d 218, 222

(1995).

     Moreover, we see no logical reason to distinguish between

portable and fixed containers, as the court did in Cameron, Under

the analysis articulated in Cameron, the defendant could not keep

his unloaded weapon locked in a fixed area such as a glove box or

center console, yet he could keep the weapon in a duffel bag

anywhere in the vehicle.    The law is well established that

"statutes are to be construed in a manner that avoids absurd or

unjust results."     People v. Hanna, 207 Ill. App. 486 (2003).

Allowing drivers to hide weapons anywhere in the vehicle, so long

as the case is portable, while prohibiting the storage of such


                                   8
weapon in a glove box or center console absurd, illogical and

unjust.

     The People submit that People v. Williams, 368 Ill. App. 3d

616 (2006) is on point.   The Williams court, relying in part upon

Cameron held that a zippered compartment that was attached to the

back of the driver’s seat was not a case under the statute at

issue.    Since Williams relies upon Cameron, and we decline to

follow Cameron, we also decline to follow Williams.

     Having determined that the center console is a case as

intended by the legislature in providing exceptions to the

aggravated unlawful use of weapons statute, we must now determine

the practical effect of the trial court’s error in holding

otherwise.   First, we find the jury was improperly instructed as

to the statutory exception.   The defendant proposed instructing

the jury on the exception for FOID card holders carrying firearms

unloaded and cased.   The defendant proposed the following

instruction:

           "A person commits the offense of Aggravated

           Unlawful Use of Weapons when he knowingly

           possesses an uncased and unloaded firearm

           with the ammunition immediately accessible,

           in a vehicle except when on his land, in his

           abode, or in his fixed place of business.   A

           person does not commit the offense where the


                                  9
           transportation or possession of a weapon that

           is not immediately accessible or is unloaded

           and enclosed in a case, firearm carrying box,

           shipping box, or other container, when that

           person has a currently valid firearms owner’s

           identification card."

     A trial court’s refusal to issue a specific instruction is

reviewed under an abuse of discretion standard of review.     People

v. Douglas, 362 Ill. App. 3d 65 (2005).   We find the trial court

abused its discretion in not giving this instruction.     "Where an

instruction is given in the language of a statute which is

pertinent to the issues it must be regarded as sufficient.

Laying down the law in the words of the law itself ought not be

pronounced as error."   Deming v. City of Chicago, 321 Ill. 341,

345 (1948).

     As it was error to instruct the jury without reference to

the container exception, it was also error not to permit the

defendant to argue in his closing argument that the console fit

within the legislative exception for encased weapons.     These

errors require the matter to be reversed and remanded for a new

trial.

     Prior to remand, we must address the defendants contention

that he was not proven guilty of the offense beyond a reasonable

doubt.   Where the sufficiency of the evidence is challenged on


                                   10
appeal, the relevant question is whether, after viewing the

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found all of the elements of

the offense beyond a reasonable doubt.    People v. Collins, 106

Ill.2d 237 (1985).

     Here, taking the evidence in the light most favorable to the

prosecution, evidence was presented which, when taken in the

light most favorable to the prosecution, would have shown that

the console was open.   Thus, even if the jury had been properly

instructed as to the console being a case, it is possible that

the jury could have found that the console was open, thus making

the statutory exception inapplicable.    Such factual question

precludes our finding that the defendant was not proven guilty

beyond a reasonable doubt.    We must therefore remand for a new

trial.

     For the foregoing reasons, the judgment of the circuit court

of Peoria County is reversed and the matter is remanded for a new

trial consistent with this decision.

     Reversed and remanded.

     SCHMIDT and O’BRIEN, JJ., concur.




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