                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Moore, 2013 IL App (1st) 110793




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                      March 22, 2013


Held                       Defendant’s convictions for aggravated unlawful use of a weapon and
(Note: This syllabus       unlawful use of a weapon by a felon were upheld over his constitutional
constitutes no part of     challenge to the former offense and his contention that the testimony of
the opinion of the court   the arresting officers that they saw defendant drop a firearm and kick it
but has been prepared      under a bush was unbelievable, since the mere fact that officers are
by the Reporter of         frequently charged with giving false “dropsy” testimony did not establish
Decisions for the          that the officers here could not be believed.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 10-CR-09162; the
Review                     Hon. Sharon M. Sullivan, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Sean Collins-Stapleton, all
Appeal                     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.
                           Presiding Justice Lampkin and Justice Hall concurred in the judgment
                           and opinion.



                                            OPINION

¶1          Following a bench trial, defendant Tamar Moore was convicted of two counts of
        aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (2), (3)(A) (West
        2010)) and one count of unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West
        2010)). The trial court sentenced defendant to three years and six months of imprisonment.
        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. We
        affirm defendant’s conviction and sentence, finding: (1) the trier of fact could have
        reasonably found the arresting officers’ testimony credible; and (2) the AUUW statute is
        constitutional.

¶2                                        BACKGROUND
¶3          The State arrested and charged defendant on May 6, 2010 with two counts of AUUW and
        one count 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 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 Sergeant Saladino,
        Officer 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.
¶5          At approximately 4:15 a.m., the officers observed a group of men congregating at the


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       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                                          ANALYSIS
¶7                                   I. Reasonable Doubt Claim
¶8          On appeal, 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.
¶9          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 he
       was in–that is, being pursued by law enforcement–and hardly improbable. Indeed, a criminal
       opting to dispose of contraband after becoming aware of 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).
¶ 10        According to the testimony of Sergeant Saladino and Officer Millan, they observed
       defendant and his group from their marked squad cars from a short distance away. It is hardly
       unbelievable 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


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       officers had an opportunity to detain him. Additionally, there is no evidence to suggest
       defendant realized the police had a direct view of his abandonment of the weapon. Millan
       and Plovanich had passed defendant on the street and defendant never turned around to see
       that Saladino had changed his position. Defendant likely assumed 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.
¶ 11       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. It follows, according to defendant, that these reports establish the widespread
       nature of false “dropsy” testimony, undermining the officers’ version of events. In short,
       because police frequently invent such stories, Saladino and Millan cannot reasonably be
       believed.
¶ 12       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.
¶ 13       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. 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.

¶ 14                                  II. Second Amendment
¶ 15       In addition, defendant argues his conviction under the AUUW statute violates his right
       to keep and bear arms under the second amendment of the United States Constitution.
       Defendant relies on District of Columbia v. Heller, 554 U.S. 570 (2008), and McDonald v.
       City of Chicago, 561 U.S. ___, 130 S. Ct. 3020 (2010). In Heller, after a lengthy discussion
       of the history and context surrounding the adoption of the second amendment, the Court
       found “the inherent right of self-defense has been central to the Second Amendment right.”


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       Heller, 554 U.S. at 628. The Heller Court then defined the home as the place “where the
       need for defense of self, family, and property is most acute.” Id. Accordingly, the Court held
       that the second amendment right to bear arms necessarily included the right to possess a
       handgun in the home for self-defense. Id. at 628-29 (“Under any of the standards of scrutiny
       that we have applied to enumerated constitutional rights, banning from the home the most
       preferred firearm in the nation to keep and use for protection of one’s home and family
       [citation] would fail constitutional muster.” (Internal quotation marks omitted.)). In
       McDonald, the Court further defined self-defense as a basic right “deeply rooted in this
       Nation’s history and tradition.” (Internal quotation marks omitted.) McDonald, 561 U.S. at
       ___, 130 S. Ct. at 3036 (quoting Washington v. Glucksberg, 521 U.S. 702, 721 (1997)).
       Thus, the Court incorporated the second amendment right to keep and bear arms against the
       states. Id. at ___, 130 S. Ct. at 3050.
¶ 16        Defendant reads these cases as acknowledging a constitutional right to carry a firearm for
       self-defense in certain public areas outside of the home. As noted by defendant in his brief,
       this argument has recently been rejected by this court and is currently under review by the
       Illinois Supreme Court. See People v. Aguilar, 408 Ill. App. 3d 136, 148 (2011), appeal
       allowed, No. 112116 (Ill. May 25, 2011) (“The [United States] Supreme Court’s decisions
       do not define the fundamental right to bear arms to include the activity barred by the AUUW
       statute.”); People v. Mimes, 2011 IL App (1st) 082747, ¶ 81 (“We are not persuaded *** that
       allowing an individual to carry a loaded and immediately accessible firearm in public for the
       lawful purpose of self-defense is not very different from that same individual’s fundamental
       right to have a loaded and accessible handgun at home for the purpose of self-defense.”).
¶ 17        After the filing of this appeal, however, the Seventh Circuit Court of Appeals issued an
       opinion finding Illinois’s AUUW statute unconstitutional. See Moore v. Madigan, 702 F.3d
       933 (7th Cir. 2012).1 Nonetheless, the decision is not binding on Illinois courts. People v.
       Stansberry, 47 Ill. 2d 541, 544-45 (1971). Without a ruling from the United States Supreme
       Court, a split often exists between the lower federal courts.2 Id. at 545. As the United States
       Supreme Court has not yet ruled on this question, the Seventh Circuit’s decision in Moore
       constitutes at most persuasive authority. Id.
¶ 18        Regarding the constitutionality of the AUUW statute, we do not find the Seventh
       Circuit’s reasoning in Moore persuasive. We find it important to note again that the Court
       in “Heller and McDonald specifically limited its rulings to interpreting the second
       amendment’s protection of the right to possess a handgun in the home for self-defense
       purposes, not the right to possess handguns outside of the home.” Aguilar, 408 Ill. App. 3d


               1
                On December 24, 2012, this court ordered the parties to file supplemental briefing
       addressing the Seventh Circuit’s decision in Moore v. Madigan.
               2
                 In fact, the Tenth Circuit recently concluded “the concealed carrying of firearms falls
       outside the scope of the Second Amendment’s guarantee.” Peterson v. Martinez, No. 11-1149, 2013
       WL 646413, at *11 (10th Cir. Feb. 22, 2012). While this decision does not run entirely contrary to
       the Seventh Circuit’s holding in Moore, it does raise some doubt as to the uniformity of the federal
       circuit courts.

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       at 148. Accordingly, we do not agree with the Seventh Circuit that the right to self-defense
       delineated in Heller and McDonald encompasses a right to carry a loaded, readily accessible
       firearm in public areas. Given the line of contrary precedent in Illinois courts on this issue,
       we see no reason to adopt the decision in Moore.
¶ 19       Moreover, defendant’s constitutional challenge additionally suffers because of his status
       as a felon.3 Neither Heller, McDonald, nor Moore has suggested the second amendment right
       to keep and bear arms guarantees a felon’s ability to own and possess a firearm. See Heller,
       554 U.S. at 626 (“nothing in our opinion should be taken to cast doubt on longstanding
       prohibitions on the possession of firearms by felons”); McDonald, 561 U.S. at ___, 130 S.
       Ct. at 3047 (repeating Heller’s “reassurances” regarding felons); Moore, 702 F.3d at 940
       (finding bans limited to felons do not fall within second amendment protection).
       Accordingly, we reject defendant’s constitutional claim and affirm his convictions under the
       AUUW statute.

¶ 20                                   CONCLUSION
¶ 21       For the aforementioned reasons, we affirm defendant’s convictions and sentence under
       the AUUW and unlawful use of a weapon by a felon statutes.

¶ 22       Affirmed.




               3
                At trial, the parties stipulated that defendant had a prior felony conviction for possession
       of a controlled substance.

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