                                  Illinois Official Reports

                                          Appellate Court



                             People v. Moore, 2014 IL App (1st) 110793-B



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      TAMAR MOORE, Defendant-Appellant.



District & No.               First District, Sixth Division
                             Docket No. 1-11-0793



Filed                        April 25, 2014
Rehearing denied             May 19, 2014



Held                         Defendant’s conviction for the Class 2 offense of aggravated unlawful
(Note: This syllabus         use of a weapon was upheld, where defendant failed to show that the
constitutes no part of the   arresting officers’ testimony that they saw defendant hide a firearm
opinion of the court but     under a bush was not credible, and the decision in Aguilar finding the
has been prepared by the     Class 4 offense of aggravated unlawful use of a weapon
Reporter of Decisions        unconstitutional does not apply to the Class 2 offense, so his
for the convenience of       conviction did not violate the second amendment.
the reader.)




Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-9162; the
Review                       Hon. Sharon M. Sullivan, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Sean Collins-Stapleton,
     Appeal                   all of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Matthew Connors, and Anne L. Magats, Assistant State’s Attorneys,
                              of counsel), for the People.



     Panel                    JUSTICE REYES delivered the judgment of the court, with opinion.
                              Justices Hall and Lampkin concurred in the judgment and opinion.


                                               OPINION

¶1         Following a bench trial, defendant Tamar Moore (defendant) was found guilty of two
       counts of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (2),
       (3)(A), (d) (West 2010)) and one count of unlawful use of a weapon by a felon (720 ILCS
       5/24-1.1(a), (e) (West 2010)). After merging the counts into one, the trial court sentenced
       defendant to three years and six months of imprisonment on the Class 2 form of the AUUW
       offense (720 ILCS 5/24-1.6(a)(1), (d) (West 2010)). On appeal, defendant contends: (1) the
       State failed to prove his guilt beyond a reasonable doubt because the officers’ testimony was
       not credible; and (2) his conviction under the AUUW statute violates his second amendment
       rights of the United States Constitution (U.S. Const., amend. II). This court initially affirmed
       defendant’s conviction, finding: (1) the trier of fact could have reasonably found the arresting
       officers’ testimony credible; and (2) the AUUW statute was constitutional. People v. Moore,
       2013 IL App (1st) 110793. The Illinois Supreme Court subsequently entered a supervisory
       order directing us to vacate our judgment and reconsider our opinion in light of People v.
       Aguilar, 2013 IL 112116. People v. Moore, No. 115935 (Ill. Jan. 29, 2014). Upon further
       examination, we reaffirm defendant’s conviction.

¶2                                          BACKGROUND
¶3         The State charged defendant by information on May 19, 2010 with two counts of the
       Class 2 form of AUUW and one count of the Class 2 form of unlawful use of a weapon by a
       felon. The State based the charges on police testimony that defendant, a previously convicted
       felon, possessed a loaded and concealed handgun while in public.
¶4         At a bench trial, the State presented the testimony of Sergeant Michael Saladino and
       Officer Bjornn Millan of the Chicago police department. Both officers testified that early in the
       morning on May 6, 2010, they were patrolling the intersection of North Avenue and Mayfield
       Avenue on the west side of Chicago. The Chicago police department sent Saladino, Millan,
       and Officer Joseph Plovanich to survey the area after receiving numerous complaints about
       violent activity originating from a social club operating near the intersection. The officers
       observed the intersection from their respective marked squad cars, which were parked next to
       each other on North Avenue.


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¶5          At approximately 4:15 a.m., the officers observed a group of men congregating at the
       southeast corner of the intersection. The group then began moving south down Mayfield
       Avenue. Millan and Plovanich turned left on Mayfield and drove south to investigate. Saladino
       turned his vehicle around to improve his line of sight, stopping in the intersection and facing
       south approximately 50 to 75 feet away from the group. Saladino testified that after Millan and
       Plovanich passed defendant, he observed defendant stop in front of a tall bush, reach into his
       waistband with his right hand, and pull out a handgun. According to Saladino, defendant
       dropped the weapon and kicked it under the bush. Millan and Plovanich then stopped and
       exited their vehicle, approaching the group. Millan testified he observed defendant appear
       from under the bush to rejoin the rest of the group. While Saladino and Plovanich secured all of
       the members of the group, Millan searched the bush, where he recovered a loaded
       semiautomatic pistol.
¶6          Based on the testimony establishing the foregoing facts, the trial court found defendant
       guilty on all counts. At a subsequent hearing, the trial court merged counts II and III into count
       I, sentencing defendant on the Class 2 form of the AUUW offense (720 ILCS 5/24-1.6(a)(1),
       (d) (West 2010)).

¶7                                              ANALYSIS
¶8                                       I. Reasonable Doubt Claim
¶9          Defendant argues the trial judge could not have found him guilty of the charges beyond a
       reasonable doubt because the testimony used to convict him was “inherently unbelievable.”
       When a defendant challenges the sufficiency of the evidence, as defendant does here, the
       reviewing court must decide whether, after viewing the evidence in the light most favorable to
       the prosecution, any rational trier of fact could have found the elements of the crime beyond a
       reasonable doubt. People v. Evans, 209 Ill. 2d 194, 209 (2004). This court will not reverse a
       decision by the trier of fact unless the evidence is so unreasonable, improbable, or
       unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. Id.
¶ 10        According to defendant, the idea that he would remove a weapon from his person in the
       vicinity of the police belies common sense; in other words, no one would ever be so foolish
       and, therefore, there must be some reasonable doubt as to whether the officers testified
       truthfully. To the contrary, we find defendant’s actions are consistent with the situation that he
       found himself in–that is, being pursued by law enforcement–and hardly improbable. Indeed, a
       criminal opting to dispose of contraband after becoming aware of a police presence is not only
       believable, but also common. See, e.g., California v. Hodari D., 499 U.S. 621, 623 (1991)
       (while being pursued by officers, defendant tossed away a bag of crack cocaine); United States
       v. Ryerson, 545 F.3d 483, 486 (7th Cir. 2008) (incarcerated defendant requested from prison to
       have his friend dispose of the machine gun hidden in his garage before the police discovered
       it); People v. Comage, 241 Ill. 2d 139, 142 (2011) (after officers arrived in parking lot,
       defendant ran away and threw drug paraphernalia over a fence); In re M.F., 315 Ill. App. 3d
       641, 643-44 (2000) (upon hearing police knock and announce their presence, defendant exited
       the apartment through a window and began to throw bags of cocaine toward the street).
¶ 11        According to the testimony of Saladino and Millan, they observed defendant and his group
       from their marked squad cars from a short distance away. It is certainly believable that
       defendant–aware of both nearby law enforcement and of the fact that he was illegally in
       possession of the weapon–attempted to rid himself of the firearm before the officers had an

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       opportunity to detain him. Millan and Plovanich had passed defendant on the street and
       defendant never turned around to see that Saladino had changed his position. With no evidence
       to suggest defendant realized Saladino had a direct view of his abandonment of the weapon, a
       rational trier of fact could conclude defendant decided he could safely and quickly abandon the
       weapon at this point without being detected. Moreover, contrary to defendant’s assertions, the
       fact that he used his right hand to accomplish this task, despite being left handed, does not
       make the officers’ account any less credible. Accordingly, we do not find defendant’s
       argument that the officers’ testimony is “inherently unbelievable” persuasive.
¶ 12       Defendant further contends police officers frequently fabricate stories (referred to as
       “dropsy” testimony) of criminal suspects conveniently dropping evidence in plain view of a
       police officer in order to circumvent the search and seizure restrictions of the fourth
       amendment. See People v. Ash, 346 Ill. App. 3d 809, 816 (2004) (“A ‘dropsy case’ is one in
       which a police officer, to avoid the exclusion of evidence on fourth-amendment grounds,
       falsely testifies that the defendant dropped the [evidence] in plain view ***.”). According to
       defendant, false “dropsy” testimony is commonplace and has become a pervasive problem that
       threatens the legitimacy of the justice system. Defendant supports this claim with various
       newspaper and law review articles that either directly or indirectly comment on the
       phenomenon. These reports allegedly establish the widespread nature of false “dropsy”
       testimony, thereby undermining the officers’ version of events. In short, defendant argues
       because police frequently invent such stories, Saladino and Millan cannot reasonably be
       believed.
¶ 13       Even assuming, however, that this anecdotal evidence actually establishes a trend or
       problem, it does little to discredit the officers’ testimony in this case. It does not follow that
       because other police officers have falsified similar testimony in the past that reasonable doubt
       has been conclusively established here. At best, such evidence suggests one would be wise to
       consider the frequency of police perjury as a factor when judging credibility. Such evidence
       does not, however, compel the trier of fact to disbelieve any officer’s testimony that describes
       witnessing a defendant dropping or abandoning contraband. See, e.g., People v. Gustowski,
       102 Ill. App. 3d 750, 753-54 (1981) (discrepancies in the officers’ testimony pertaining to the
       defendant’s dropping of contraband were insufficient to render the trier of fact’s credibility
       determination unreasonable).
¶ 14       After considering all of the evidence in this case, the trial judge found the officers to be
       credible. The trier of fact is the sole judge of credibility at trial and defendant has not
       established the trial court’s determination was so improbable and unreasonable that we must
       reverse. People v. Hernandez, 278 Ill. App. 3d 545, 552 (1996). Viewing the evidence in a
       light most favorable to the prosecution, the trial judge reasonably could have found the
       elements of the crime proved beyond a reasonable doubt. Evans, 209 Ill. 2d at 209.

¶ 15                                       II. Second Amendment
¶ 16       In his initial brief, defendant argued his conviction under the AUUW statute violated his
       right to keep and bear arms under the second amendment of the United States Constitution,
       relying on District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v. City of
       Chicago, 561 U.S. 742 (2010). Section 24-1.6 of the AUUW statute provides in relevant part:
                   “(a) A person commits the offense of aggravated unlawful use of a weapon when he
               or she knowingly:

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                       (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, legal
                   dwelling, 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[.]
                                                     ***
                   (d) Sentence.
                       (1) Aggravated unlawful use of a weapon is a Class 4 felony; a second or
                   subsequent offense is a Class 2 felony for which the person shall be sentenced to a
                   term of imprisonment of not less than 3 years and not more than 7 years.
                       ***
                       (3) 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 for
                   which the person shall be sentenced to a term of imprisonment of not less than 3
                   years and not more than 7 years.” 720 ILCS 5/24-1.6 (West 2010).
           After the initial disposition of this appeal, our supreme court decided Aguilar, which found
       the Class 4 form of the AUUW offense to be unconstitutional. Aguilar, 2013 IL 112116, ¶ 22.
       The record in this case reveals the trial court convicted and sentenced defendant under the
       Class 2 form of the offense. While Aguilar did not directly address whether the Class 2 form of
       AUUW was similarly invalid, this court has since visited the issue and determined the Class 2
       form of AUUW remains constitutional. See People v. Burns, 2013 IL App (1st) 120929, ¶ 27
       (“[T]he Class 2 form of AUUW *** merely regulates the possession of a firearm by a person
       who has been previously convicted of a felony” and, therefore, “defendant’s constitutional
       challenge to the Class 2 form of the offense in the AUUW statute fails.”); see also People v.
       Soto, 2014 IL App (1st) 121937, ¶ 14 (“[W]e agree that the Class 2 form of AUUW under
       section 24-1.6(a)(1), (a)(3)(A) is a reasonable regulation of the second amendment right to
       bear arms.”). Accordingly, Aguilar does not affect defendant’s conviction for AUUW and we
       reaffirm the judgment of the circuit court of Cook County.

¶ 17                                       CONCLUSION
¶ 18      For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 19      Affirmed.




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