## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

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

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. TAMAR MOORE, Def

endant- Appellant.

District & N o. First District, Six th Division Docke t No. 1-11-0793

Filed Marc h 22, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def endant’ s convic t ions for ag gravated unlawful use of a wea pon and unlawful use of a wea

pon by a felon wer e upheld over his constitutional challeng e to the for

mer off ense a nd his contention that the testimony of the arresting office rs t hat t hey saw defenda nt drop a firea

rm an d kick i t under a b u s h was unbelievable
, since the mere fac t that office rs are fre quently char g ed with g iving false “dropsy ” testimony did not establish that the offic ers he re c ould not be believed.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CR-09 1 6 2 ; the Hon. Sharon M. Sullivan, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Sean Col lins-Stapleton, all of State Appe llate Def

ender ’s Off

ice, of Chicag o, for a

ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Matthew Connors, and Anne L . Mag ats, Assistant State’s Att orney s, of counsel), f

or the People.

Panel J USTI CE REYES delivered the judg ment of the c ourt, with opinion. Presiding J ustice L ampkin and J ustice Ha l l co ncurr ed in the judgme nt and opinion.

OP INION

¶ 1 Following a bench trial, defen d an t T am ar M o o re wa s convicted of two counts of
ag g ravated unlawful use of a wea pon (AUU W) (720 I L CS 5/24-1.6(a) (1), (2), (3)( A) (West 2010)) a nd one count of unlawful use of a wea pon by a felon (720 IL CS 5/ 24-1.1(a ) (West 2010)). The trial court sentenc ed defe ndant to three y ear s and six months of imprisonment. On appea l, defe ndant contends : (1 ) the State failed to prove his guilt beyond a rea sonable doubt beca

use the office rs’ testimony was not cre dible; and (2 ) h i s conviction under the AUUW statute violates his second amendment rig hts of the United States Constit ution. We aff irm defe n d ant’s conviction and sentenc e, finding : (1) the trier of fac t could have

rea sonably found the arr esting office rs’ testimony cre dible; an d (2 ) t he AUUW statute is constitutional.

¶ 2 BA CKGROUND ¶ 3 The State arr ested and charg ed defe ndant on May 6, 2010 with two counts of AUUW and

o n e count of unlawful use of a wea pon by a felon. The State based the char g es o n p o l i ce testimony that defe ndant, a previously convicted fe l o n, possessed a loaded and conce aled handgun while in public. ¶ 4 At trial, the Sta t e p re s en t ed t h e t estimony of Serg eant Michae l Saladino and Of fice r Bjornn Mil l an o f the Chicag o police depar tment. Both office rs testified that early in the morning on May 6, 2010, they wer e patrolling the intersec tion of North Avenue and May field Avenue on the west side of Chicag o. The Chicag o police depar tment sent Serg eant Saladino, Offic er Millan, and Offic er J oseph Plovanich to survey the are a afte r rec eivi n g n u merous complaints about violent activity ori gi n at i n g from a social club operating near the intersec tion. The office rs observe d the intersec tion from their respe ctive marke d squad car s, which we re pa

rked ne x t to each othe r on North Ave nue. ¶ 5 At approximately 4:15 a.m., the office rs observe d a gro up o f men cong reg ating at the

-2-southeast corne r of the intersec tion. The g roup then beg an moving s outh down May field

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 intersec tion and fac ing south approximately 50 to 75 fee t awa y from the g roup. Saladino testi fi ed t h at after Millan and Plovanich passed defe ndant, he observe d defe ndant stop in front of a t al l bush, rea ch into his waistband with his rig ht hand, and pull out a handgu n

. Acc ording to Saladino, defe ndant dropped the wea pon and kicked it under the bush. Millan and Plovanich then s topped and exit ed their vehicle, approa ching the group. Mil lan t estified he o b s erved defe ndant appea

r from under the bush to rejoin the rest of the g roup. Whil e S al ad i n o and Plovanich secur ed all o f t h e m em b ers of the g roup, Millan sear ched the bush, wher e he

rec overe d a loade d semiautomatic pistol.

¶ 6 ANALYSI S ¶ 7 I . Reasonable Doubt Claim ¶ 8 On appea l, defe ndant argues the trial judge could no t h av e fo u n d h i m guilty of the char g es beyond a rea sonable doubt beca use the testimony used t o convict him was “inher ently unbelievable .” When a defe ndant challeng es the sufficie ncy of the evidenc e, as d ef en d an t does here, the revie wing court must decide whether
, afte r vi ewing the evidence in the light most favor able to the prosec ution, any rational trier of fac t could have found the elements of the crime beyond a rea sonable doubt. People v. Eva ns , 209 I ll. 2d 194, 209 (2004). This court will not reve rse a decision by t h e trier of fac t unless the evidenc e is so

unrea sonable, improbable, or unsatisfac tory that it ra i s es a rea sonable doubt of the defe ndant’s guilt. Id. ¶ 9 Acc ording to defe ndant, the idea that he would remove a wea pon from his person in the vicinity of the police belies common sense; in other words, no one would ever be so foolish

an d
, t h ere fore
, there must be some rea sonable doubt as to whether the office rs testifi ed truthfully . To the contra

ry , we f ind defe ndant’s ac tions are consistent with the situation he

was in–that is, being pursued by law enfor ceme nt–and hardly improbable. Indeed, a criminal opting to dispose of contra band after b ec o m i n g awa re of police prese nce is not only believable , but also common. See, e.g. , Calif ornia v. Hodari D.
, 499 U.S. 621, 623 (1991) (while being pursued by office rs, d ef endant tossed awa

y a bag of cra ck coca ine); United States v. Rye rson , 545 F.3d 483, 486 (7th Cir. 2008) (inca rce rate d defe ndant reque sted from prison to ha

ve his f riend dispose of the machine gun hidden in his g ara g e bef ore the police discovere d it); People v. Comage
, 241 I ll. 2d 139, 142 (2011) (a ft er o ff icer s arr ived in parking lot, defe ndant ran awa y and threw drug para

pherna lia over a fenc e); In re M.F.
, 315 I ll. App. 3d 6 41, 643-44 (2000) (upon hear ing police knock and announce their prese nce, defe ndant exit ed the apar

tment throug h a window and beg an to throw bag s of coca ine toward the stree t). ¶ 10 Acc ording to th e t es t i m o n y o f S er geant Saladino and Offic er Millan, they observe d defe ndant and his g roup from their marke d squad car s from a short distance awa y

. I t is hardly unbelievable that defe ndant–awa re o f b o t h near

by law enforce ment and of the fact that he

was illega lly in possession of the wea pon–attempted to rid himself of the firea rm befor e the

-3-office rs had an o p p o rt unity to detain him. Additionally
, there is no evidenc e to sug g est

defe ndant realized the pol ice had a direct v i ew of hi s abandonme nt of t he weapon. Mi llan and Plovanich had passed defe ndant on the street and defe ndant never turned around to see that Saladino had chang ed his position. Def endant likely assumed he could safe ly and qui ck l y abandon the wea pon at this point without being detec ted. Moreove r, contra ry to defe ndant’s assertions, the fact that he used h i s ri ght hand to acc omplish this task, despite being left handed, does not make the office rs’ acc ount any less cre dible. Acc ording ly
, we do
not find defe ndant’s argument that the office rs’ testimony is “inher entl y unbelievable ”
persua sive. ¶ 11 Defen d an t fu rt h er contends police office rs fre quently fabr icate stories (re fer red to as “dropsy” testi mony) of criminal sus pects conveniently dropping evidence in plain view of

a police office r in order to circ umvent the sear ch and seizure restri ct ions of the fourth amendment. See People v. Ash
, 346 I ll. App. 3d 809, 816 (2004) (“A ‘dropsy case ’ is one in which a police officer
, t o av oid the exclusion of evidenc e on fourth-a mendment g rounds, fa l sely testifies that the defendant dropped t he [ evidenc e] in plain view ***.”). Acco rd i n g to defe ndant, false “dropsy ” testimony is commonplace and has become a perva sive problem that threatens the leg itimacy of the justice sy stem. Def endant supports this claim with v a rious
newspa per and law revie w article s that either direc tly o r indirectly comment on the phenomenon. I t follows, acc ording to defe ndant, that these repor ts establish the widespre ad
nature of false “dropsy” testimony
, undermining the office rs’ version of events. In short, beca use police fre quently invent such stories, Saladino and Mil l an cannot rea sonably be believed. ¶ 12 Even assuming, howeve r, that t h i s an ecdotal evidenc e actua lly establishes a trend or problem, it does littl e to discredit the office rs’ testimony in this case

. I t does not follow that beca use other police office rs have falsified simil ar testimony i n the past that rea sonable doubt has been conclusively established here

. At best, such evidenc e sug g ests one would be wise t o consider the fre quency of pol ice perjury as a fac tor when judging cre dibilit y

. Such evidenc e does not, howeve r, compel the trier of fac t to disbelieve any office r’s testimony that descr ibes witnessinga def endant dr opping or

abandoningcontra

band. ¶ 13 After considering all of the evidenc e in this case , the trial judge found the office rs to be

cre dible. The trier of fac t is the sole judge of cre dibilit y at trial and defe ndant has not established the trial court’s deter mination was so improbable and unrea sonable that we must

reve rse. Viewing the evidenc e in a light most favor able to the prosec uti o n , t he trial judge

rea sonably

could have found the e lements of the c rime prove d beyond a re asonable doubt.

¶ 14 I I . Second Amendme nt ¶ 15 In addition, de fenda nt a rgues his c onviction unde r the AUUW statute violates his right
to keep and bear arms under the second amend ment of the United States Constit ution. Def endant relies on District of Columbia v. Heller
, 554 U.S. 570 (2008), and McD onald v

. City of Chicago
, 561 U.S. ___, 130 S. Ct. 3020 (2010). In Heller
, afte r a leng thy discussion of the history and context surrounding the adoption of the second amendment, the Court found “the inhere nt rig ht of self-de fense has been centr al to the Second Amendment rig ht.”

-4-Heller
, 554 U.S. at 628. The He l ler Court then define d the home as the place “whe re the

need for defe nse of self, family
, and proper ty is most acute .” Id. Acc ording ly
, the Court held that the second amendment rig ht to bear arms nece ssarily included the ri gh t to possess a handgun in the home for self-de fense

. Id. at 628-29 (“Under any of the standards of scrutiny that we have applied to enumer ated constitut ional rig hts, banning from the home the most pref err ed fi re ar m i n the nation to keep and use for protec tion of one’s home and family [citation] would fail constitutional muster.” (Interna l quotation m arks omitted.)). In McD onald
, the Court further define d self-de fense as a basic right “dee ply rooted in this Nation’s history and tradition.” (Interna l quotation marks omitted.) McD onald
, 561 U.S. at

___, 130 S. Ct. at 303 6 (q u o t i ng W ashington v. Glucksbe rg , 521 U.S. 702, 721 (1997))

. Thus, the Court incorpora ted the second amendment rig ht to keep and bear arms ag ainst the
states. Id. at ___, 130 S. Ct. at 3050. ¶ 16 Def

endant rea ds these case s as acknow ledg ing a constitutional rig ht to car ry a firea rm for self-de fense in cer

tain public are as outside of the home. As noted by defe ndant in his brief, this argument has recently been rejec ted by this court and is curr ently under review b y the I l l inois Supreme Court. See People v. Aguilar
, 408 I ll. App. 3d 136, 148 (2011), a p p ea l allowed , No. 112116 (I ll. Ma y 25, 2011) (“The [Unit ed States] Supreme Court’s decisions do not define the fundame ntal rig ht to bear arms to include the activity barr ed by the AUUW statute.”); People v. Mimes
, 2011 I L App (1st) 082747, ¶ 81 (“We are not persua ded *** that allowing an individual to car ry a loaded and immediately acc essible firea rm in public for the lawful purpose of self-de fense is not very differ ent from that same individual’s fundame ntal rig ht to have a loa ded and a cce ssible handgun at home for the purpose of

self-de fense .”). ¶ 17 After the filing of this appea l, howeve r, the Seventh Circuit Court of Appea ls issued an opinion finding I llinois ’s AUUW statute unconstitutional. See Moore v. Madigan
, 702 F.3d 933 (7th Cir. 2012). Nonethele ss, the decision is not bin d i n g on I llinois courts. People v. 1 Stansberry
, 47 I ll. 2d 541, 544-45 (1971). Wit hout a ruling from the United States Supreme Court, a split often exis ts betwee n the lower fede ral courts. Id. at 545. As the United States 2 Supreme Court has not yet ruled on this question, the Seventh Circuit’s decision in Moore constitutes at most persuasive a uthority

. Id. ¶ 18 R ega rd i n g t h e constitutionalit y of the AUUW statute, we do not fin d t h e S ev en t h Circuit’s rea soning in Moore persua sive. We find it important to note ag ain t hat t he C ourt in “ Heller an d McD onald specific ally limit ed its ruling s to interpre ting the second

am en d m en t ’s protec tion of the right to possess a handgun in the home for self-de fense
purposes, not the rig ht to possess handguns outside of the home.” Aguilar
, 408 I ll. App. 3d

On Dece m

ber 24, 2012
, thi s cou rt ord er ed the par ti es to fi le sup ple m ent al bri ef ing 1 add re ssi ng the Sevent h Ci rc uit ’s dec is ion in Mo ore v. M adi gan

.

I n fa ct , the T ent h Cir cui t re cen t l y con cl ude d “t he con cea le d car rying of fi re ar m s fa ll s 2
out si de the sco pe of the Sec ond Am end m ent ’s guaran te e.” Pet ers on v. Ma rt ine z , No. 11- 1149
, 2013 WL 6464 13, at *11 (10 th Cir

. Feb. 22, 2012 ). Wh il e thi s dec is ion doe s not run ent ir el y con tr ary to the Sevent h Cir cui t’ s hol din g in Mo ore , it doe s ra is e some doub t as to the uni for m it y of the fe der al ci rc uit cou rt s.

-5-at 148. Acc ording ly
, we do not ag ree with the Seventh Circuit that the right to self-de fense

delineate d in Heller and McD onald encompa sses a rig ht to car ry a loaded, rea dily acc essible firea rm in public are as. Given the line of contra ry prec edent in I llinois courts on this iss ue,

we se e no re ason to adopt the de cision in Moore

. ¶ 19 Moreove r, defe ndant’s constitutional challeng e additionally suffe rs beca use of his status

as a felon. Neither Heller
, McD onald
, nor Moore has sug g ested the second amendment rig ht

3
to keep and bear arms guara ntees a felon’s ability to own and possess a firea rm. See Heller
, 554 U.S. at 626 (“nothing in our opi n i on should be taken to cast doubt on longsta nding prohibitions on the possession of fire arms by felons”) ; McD onald , 561 U.S. at ___, 130 S. Ct. at 3047 (re peating Heller ’s “re assura n ce s ” re garding felons); Moore
, 702 F.3d at 940 (f i n d ing bans limit ed to felons do not fall within second amendment protec tion ). Acc ording ly
, we reje ct defe ndant’s constitutional claim and aff irm his convictions under the AUUW statute.

¶ 20 CONCLUSI ON ¶ 21 For the afor ementioned rea sons, w e aff irm defe ndant’s convictions and sentenc e under the AUUW and unlaw ful use of a wea pon by a fe lon statutes.

¶ 22 Affir

med.

At tr ia l, the par ti es st ipu la te d t hat def end ant hada p ri or fe lon y convict ion fo r pos ses si on 3 of a c ont rol le d su bst anc e.

-6-