the third case on our call today is people vs home one zero nine zero one three zero john the number three counsel are you ready to proceed please good morning honors may it please the court christine neil from the office of the state a public defender and behalf of the appellant defendant in this case leonard holmes i will be addressing the arguments before the court in the order that they were presented in the holmes opening in reply briefs i would begin with a discussion of argument one for argument two i will stand on the points articulated in my briefs and then i will turn my focus to argument three indiana resident leonard holmes was charged with two counts of aggravated unlawful use of a weapon after he was pulled over for a minor traffic violation in chicago holmes produced a valid indiana driver's license and car registration and when asked to step out of his car he informed the officer they had a gun in the vehicle that was registered in indiana at holmes jury trial it is undisputed that the gun was recovered from the closed latched back seat arm rest of the vehicle whether the gun was recovered loading or unloading immediately accessible or not immediately accessible was in dispute at trial count one allege that holmes carried and uncased loaded and immediately accessible firearm and his vehicle and count to  allege that holmes carried a firearm in his vehicle without having been issued a currently valid firearm owners identification card jury entered a finding of guilt on a general verdict form for aggravated unlawful use of a weapon not one good count remains to uphold holmes's conviction argument one invalidates the conviction as to count one argument three demonstrates that forms was exempt from prosecution altogether under count two as he's an indiana resident with a lawful gun permit from his home state of indiana thus conviction as to count it's of the gun recovered in this case was encased it was recovered from a closed last compartment in the back seat of the car the dickens case to find a case using as plain an ordered a meaning as any portable and non portable receptacle and need not be interpreted only in reference to firearms and dickens's court h console of the vehicle fell within the exception of twenty four dash one point six c three the state agrees that if this court finds the weapon was in case under dickens that forms conviction under count one was improper therefore because the state failed to prove every element in count one which was a gun was encased loaded and immediately accessible one of those three was not proven holmes is not guilty of aggravated unlawful use of a weapon under count one this court doesn't have any questions about the first argument i will i will proceed if they found that films had not been issued a currently valid boyd card that was that was all they were given in the instruction for count as an out of state resident l could not legally a chain of foid card his attorney attempted to enter his indiana comment at trial he made a proffer and the state acknowledged that they were on notice the court refused to allow them to bring that in and the court sensibly directed a guilty verdict on count two by prohibiting flumes from presenting his indiana firearm permit to prove his exemption as a result whom who had no prior felony record is now a convicted felon for not having in his possession something that he never could have illegally obtained the attorney then attempted to instruct the jury as to i p i eighteen point zero one eight exemptions to firearm to weapons offenses which would have told the jury that as a nonresident holmes was not able to have a floyd card but was it was necessary that he be legally permitted to obtain a firearm in his home state the court refused to give that instructing shocks and to the jury this court by the plain language of the aggravated unlawful use of a rock and statute and the foid card act by reading that the ag u w statute specifically references the ford card act and if i may also point out as was mentioned in the briefs the illinois state police website specifically says that there's three statutory codes that regulate the possession the transfer and the transport of firearms in illinois and those three statutes are the criminal code the wildlife code and the po illinois state police clearly says that for a nonresident to comply by our laws and bring their firearm into our state they must as illinois residents have an unloaded enclosed in  case firearm and nonresidents must be eligible to possess or acquire firearms and ammunition in their state of residence so with can taking on both of those statutes into consideration for one's conviction under count two should be reversed and if his conviction in count one is not likewise for first then he asked that on notice that mr holmes had the gun permit in indiana but then later when you attempted to introduce the seventh there was an objection by the state is that right correct and then they their argument is based on all this is an affirmative defense were not properly on notice for the affirmative but you've argued an exception or an exemption is distinct from an affirmative defense exactly and you just good point for a bit here yes defense counsel clearly argue to judge right us and you know before the state that the exemption of an out of state permit is not an affirmative defense and it is never an issue for the state to prove that the defense was responsible for proving by a preponderance of the evidence that he was properly permitted it obtain the firearm in his state of residence good morning your honor may have placed the score with neil my name is and the gas same assistant state's attorney from cook county and i am here on behalf of the people your honour's the defendant in this case was properly convicted of an aggravated most of how this court chooses to reply to defendant's arguments that his firearm was in case pursuant to take guns or how this court chooses to respond to any of defendant's claims with respect to count one this defendant was of weapons the legislature has predicated felony aggravated u w i now being issued a firearm owners identification card in doing this the legislature by reading the statutes we can infer that the legislature has said that if you're going to possess a firearm unlawfully and illinois then you need to be registered under the strictures of the illinois legislature has created for possessing a firearm owners identification card or a firearm in the first instance it w logic that the legislature would now choose to accept the standard setting out another state's legislature has created for acquiring an out of state gun license and substituting that to protect the public from person is charged with a violation of the point hard act and out of state license will qualify to accept a person from prosecution for a violation of the point or the act so is there or is there some absurdity to make someone a phone for failing to have something that the wall does not require there is no absurdity because what the the defendant in this case was charged with was unlawfully using and transporting a weapon within illinois and he did not meet the requirements of the additional requirements of having this card so that argument really if we disagree with the argument that the exceptions or your argument that the exceptions of the fourth kurdish should not be read into  a defendant from aggravated u w they would not have only have included this exception in the aggravated u w statute or in the section governing exemptions to aggravated u w they would have used the term out of state license and they have used the term possessed his firearm in a lawful fashion and again the aggregate of u w statute itself and subsection twenty four to the time of the criminal code expressly provides that any person including an out of state resident who is unable to attain an illinois f a y d card may transfer transfer for a firearm in illinois without being liable for any prosecution for aggravated u w so long that is to break it down in a non functioning state or make it not immediately accessible and to find it in case this situation did neither of them what he did do is he transported a loaded functioning immediately accessible nine millimeter semi automatic handgun in illinois the evidence that this fire misfunctioning was henri bought it when this the weapon was recovered from defendant's car there was a bullet in cased in the chamber and it was ready to be fired we also this court can decide defendants case today by finding that he was properly convicted of an aggravated unlawful use of a weapon counts and count to charge him with possessing a firearm and not being and there was a way for him to transfer this firearm within illinois without being issued this card and because the legislature has provided in the aggravated u w statute itself and in the exemptions  to the aggravated use of the use statute that all defendant had to do was to break his firearm down into a nonfunctioning state or make it not immediately accessible defendant's argument that the statute or the aggravated statue in the fourth card act pari materia should be denied the basis of defendant's argument is that there was no way for defendant to transport a firearm in illinois and now be liable under the aggravated u w statue however again the legislature has already created a means for defendant to do exactly what he says the law prevents him from doing also when we look at the plane in order in ordinary language of both the aggravated u w statute and the  scope they were enacted for different purposes and that there is no basis to basically in graft an exception that the legislature created in and limited to the fourth card act into the aggravated u w statue the legislature created a multitude of exemptions to aggravated u w and section twenty four two of the criminal code and the legislature could of but chose not to include out of state residents with out of state licenses also the foid card act was enacted as card act only apply to violations of the fourth card act they do not the legislature did not say that these exceptions apply to violations of the fourth card act and violations of the criminal code in addition your honors even if th were to decide that this exception to the foid card to actually be imported into the aggravated you w statute defendant was still properly convicted of an aggravated u w charge the foid card act requires that a person have a firearm owners identification card in their possession at the time they possess this firearm this is not the case in our case because defendant by his own admission to the police said he had an indiana gun license but it was in indiana i if this were an exception to find and still did not put himself within the ambit of it a defendant had possessed this firearm lawfully the aggravated unlawful use of a weapon statue would not be an issue and then he might have an exception to exemption for when this firearm is broken down in a non functioning state or is not immediately accessible so if defendant had either broken his firearm down or made it inaccessible to him by putting it in the trunk of the case if defendant had been a responsible gun owner and broke his firearm down or put it in the trunk of his car and made it inaccessible to him he would be exams but he was not a responsible gun owner in this case because he had a loaded immediately accessible firearm in the back seat arm rest of this car defendant was properly convicted of an aggravated u w count in this case based on that his conviction and sentence should be  that that's part we do maintain with count one that is if this court were to find that the firing was in case his conviction should be reduced soon as to be straight also take the position that the defendant was not entitled to unlawful use of a weapon instruction at that time that's correct again i have to ask is there any inconsistency between asking in this court rather than the reverse of right would employ unlawful use of a weapon some evidence that it's firearm was unloaded because he testified that he took the magazine out of his gun however there was an rebut it evidence in this case that came from two police officers that there was a bullet in cased in the chamber of the gun ready to be fired therefore there was evidence that this gun was that this gun was unloaded the evidence was on repotted and the trial court's not abused its discretion in deciding to deny this instruction based on that there was no request or there wasn't an argument made that he was the define it was denied an unlawful use of the weapon instruction on the basis of the basis of his firearm being a case yes i mean it's just a i thought he testified the gun was unloaded the defendant testified that his gun was unloaded so there was some evidence in the case the gun was unlocked his testimony that his gun was unloaded constituted his claim that when he pulled over he took the magazine out of his gun and put it in his pocket he did not account for the bullet that was neale i'm going to begin with argument one yawners holmes testified that when he got into his vehicle in indiana he remembered that his newly purchased and registered firearm in indiana was in the car he under the loaded the firearm in indiana not when he was pulled over in illinois that was his testimony at trial and it was on rebutted as to that respect  the state has conceded that i respond out argument is not forfeited here and i wanted to also  inform the court that for the lesser included you u w poem's maintains that he should have a reversal on count one outrage that it should not be put down to the lesser included it you you  and there is based upon the evidence that was presented at trial holmes could have been found guilty of the lesser included u w if the jury found that the gun was immediately accessible in case as this court found under diggins and loaded and he could have been found not guilty of aggravated u w if the jury found that the gun was immediately accessible encased as per diggins and loaded so there is you know there was the possibility of the proper instruction to the jury of the lesser included offense of you know you you w  immediately accessible was contended it because the defendant testified that the closed latch backseat on rust was pushed back into the trunk of his vehicle whereas the officers testified that the armrest in the down position so it was a question of fact for the jury to determine unlike the question of log presented by diggins as to rather not the gun was enclosed in a  case as forward argument three it was in possibility by the way the jury was instructed that they could find films guilty under count two for holmes residents are giving it no way of getting out of illinois law they are still required to just our illinois residence to follow the requirements and aggravated unlawful use of a weapon statu the privileges and immunities ensures that the right gang cheated by states to its citizens by not withheld from citizens of sister states such as mr holmes so if he had been able to present to the jury his proper and valid indiana gun permit then it that would make under defoe illinois residents and non illinois residents being held it to the requested by defense counsel then the jury would have had all the information necessary to to determine whether or not wilma's who was guilty of not having an illinois conviction under the aggravated unlawful use for ruckman statute and our answer is no as as your own has pointed out the plain language of twenty four one point six says that in aggravated on lawful use for weapons the plain language of sixty five to be before your card act states that the provisions of this section regarding the possession of firearms and firearms in munition do not apply m m b ten to nonresidents and there's also be nine which references that in august state resident if the gun is enclosed in a case and unloaded it is able to bring their firearm into illinois for events such as the gun in sparta illinois and i referenced in my opening theory and the reason for that is that some states in the united states do not actually require residents to have a moment or a registration so in illinois we say no one's bringing in a firearm unless they have it properly unloaded in clos sheesh you know are questions that are presented to to the jury and they are not required to have the permit on their person as i said in my opening not one good count remains against holmes undertakings the uncontested evidence presented at trial his gun was in case so no conviction on count one and where holmes was charged for use of weapon counts outright thank you for your time