2023 IL App (4th) 230162-U 

NO. 4-23-0162 

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, 

Plaintiff-Appellee,

v. 

KELVIN G. LANGSTON, 

Defendant-Appellant. 

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Appeal from the

Circuit Court of

Winnebago County 

No. 19CF195 

Honorable 

Brendan A. Maher, 

Judge Presiding.

 

JUSTICE CAVANAGH delivered the judgment of the court.

Presiding Justice DeArmond and Justice Turner concurred in the judgment.

ORDER

¶ 1 Held: The appellate court affirmed, finding (1) the unlawful possession of a weapon by 

a felon statute is constitutional under both the United States and Illinois 

Constitutions, (2) defendant’s as-applied challenge under the United States 

Constitution was forfeited, and (3) the trial court’s review of evidence not 

admitted at trial was harmless error.

¶ 2 In December 2022, following a bench trial, the trial court convicted defendant, 

Kelvin G. Langston, of unlawful possession of a weapon by a felon. 720 ILCS 5/24-1.1(a) (West 

2018). On appeal, defendant argues (1) the unlawful possession of a weapon by a felon statute 

violates the second amendment (U.S. Const., amend. II) both on its face and as applied to him 

pursuant the United States Supreme Court’s decision in New York State Rifle & Pistole Ass’n, 

Inc. v. Bruen, 597 U.S. 1 (2022); (2) the statute violates article I, section 22 of the Illinois 

Constitution (Ill. Const. 1970, art. I, § 22) both on its face and as applied to him because it 

NOTICE

This Order was filed under 

Supreme Court Rule 23 and is

not precedent except in the 

limited circumstances allowed 

under Rule 23(e)(1). 

FILED

December 27, 2023

Carla Bender

4th District Appellate

Court, IL
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provides greater protection than the second amendment; and (3) he was denied due process when 

the trial court considered inculpatory evidence that was never admitted at trial. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In February 2019, the State charged defendant by indictment with unlawful 

possession of a weapon by a felon after having been previously convicted of aggravated unlawful 

use of a weapon. The State subsequently amended the indictment in October 2022 to allege 

defendant was previously convicted of leaving the scene of an accident involving death or 

personal injury. 720 ILCS 5/24-1.1(a) (West 2018). Defendant waived trial by jury and the 

matter proceeded to a bench trial in October 2022.

¶ 5 The trial court admitted a certified copy of defendant’s conviction for leaving the 

scene of a motor vehicle accident involving death or personal injuries.

¶ 6 Police officer Jesse Geiken of the Rockford Police Department testified he was on 

patrol on January 21, 2019, when he observed defendant driving over the posted speed limit. 

Before initiating a traffic stop, he ran the vehicle’s license plate. The check revealed the vehicle 

belonged to defendant. Geiken then performed a traffic stop of the vehicle. When Geiken 

approached the driver’s side of the vehicle, defendant had both of his hands outside of the 

driver’s side window. Geiken observed defendant’s hands were shaking. Defendant gave Geiken 

his driver’s license and proof of insurance. Geiken gave defendant’s information to another 

officer on scene who is only identified in the record as “Officer Stec.” Geiken viewed 

defendant’s behavior as nervous and had his K-9 partner, Sully, conduct a free air sniff around 

the exterior of defendant’s vehicle for the presence of narcotics. Sully gave a positive indication

near the passenger’s front door of defendant’s vehicle. Douglas Hollyfield was seated in the 

passenger’s seat. Geiken had defendant exit the vehicle and step to the rear of the vehicle, where 
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he performed a search of defendant’s person. Geiken located a handgun in the right pocket of 

defendant’s jacket. The firearm recovered from defendant’s jacket was admitted into evidence 

over defendant’s objection. On cross-examination, Geiken stated no narcotics were found in 

defendant’s vehicle. Geiken and the other police officers present discussed whether Hollyfield 

made defendant take the gun because Hollyfield was currently on parole. Sergeant Bruce Voyles 

testified he performed a test fire on the firearm recovered from defendant, and confirmed the 

firearm was operational.

¶ 7 The trial court admitted People’s Exhibit No. 3, a video from “squad 232” of a 

conversation between officers Geiken, “Stec,” and Officer Schuster. Defendant stipulated to the 

video’s admissibility. Defendant asked the court to review the “entire video.” The State 

explained its exhibit, which was defendant’s copy, contained three videos. Defendant clarified he 

was “not asking the Court to consider anything but what’s considered squad video 232.” 

Defendant stated the stipulation to the video was for the purpose of impeaching Geiken’s 

testimony. 

¶ 8 After the State and defendant rested, the trial court recessed the proceedings until 

it could view the video prior to closing arguments. After a series of delays, the court resumed the 

trial proceedings after reviewing the video.

¶ 9 Following closing arguments, the trial court recited the trial evidence, stating: 

“Defense counsel then referenced People’s Exhibit No. 3 containing the 

audio and video recording of the traffic stop on January 21st of 2019, noting that 

officers on scene were openly discussing whether the firearm belonged to the 

passenger, Douglas Hollyfield, due to the fact that officers knew that Hollyfield, 

the passenger, was on parole. When questioned by an officer while seated in the 
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back seat of the squad car, however, Hollyfield denied that [defendant] was taking 

the rap for him.”

¶ 10 Defendant objected, stating Hollyfield’s statements were not entered into 

evidence and were not a part of the stipulation to the State’s evidence. After discussing the issue, 

the trial court stated, “I’ll make it very, very clear that particular detail does not have a material 

impact on the Court’s ultimate decision in this case. It is simply a fact of something that 

happened on the video.”

¶ 11 Thereafter, the trial court found defendant guilty of unlawful possession of a 

weapon by a felon. 

¶ 12 On December 20, 2022, defendant filed a motion for new trial, arguing, inter alia, 

the trial court erred when considering Hollyfield’s statements in the video evidence. Following a 

February 2023 hearing, the court denied defendant’s motion, reiterating that Hollyfield’s 

statements were not material to its ultimate decision. 

¶ 13 At the sentencing hearing, the trial court admitted defendant’s presentence 

investigation report (PSI) into evidence with minor corrections. Neither party presented any 

further evidence. The PSI showed defendant was adjudicated a delinquent three times and had

felony convictions for aggravated unlawful use of a weapon and attempted armed robbery, along 

with convictions for various other misdemeanor and traffic offenses. The court sentenced 

defendant to seven years’ imprisonment.

¶ 14 This appeal followed.

¶ 15 II. ANALYSIS

¶ 16 On appeal, defendant argues (1) the unlawful possession of a weapon by a felon 

statute violates the second amendment both on its face and as applied to him pursuant the United 
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States Supreme Court’s decision in Bruen, (2) the same statute violates article I, section 22 of the 

Illinois Constitution both on its face and as applied to him because it provides greater protection 

than the second amendment, and (3) he was denied due process when the trial court considered 

inculpatory evidence that was never admitted at trial. We address each argument in turn.

¶ 17 A. Second Amendment Facial Constitutional Challenge

¶ 18 In response to defendant’s facial challenge, the State cites People v. Boyce, 2023 

IL App (4th) 221113-U, where this court addressed the issue of whether the unlawful possession

of a weapon by a felon statute violated the second amendment on its face. Therein, we stated:

“ ‘The constitutionality of a statute is analyzed under well-settled 

principles. Statutes are presumed constitutional, and to rebut that presumption, the 

party challenging a statute’s constitutionality has the burden of establishing a 

clear violation. [Citation.] A party raising a facial challenge to a statute faces a 

particularly heavy burden. [Citation.] A statute will be deemed facially 

unconstitutional only if there is no set of circumstances under which the statute 

would be valid. [Citation.] The particular facts related to the challenging party are 

irrelevant. [Citation.] If it is reasonably possible to construe the statute in a way 

that preserves its constitutionality, we must do so.’ ” Id. ¶ 12 (quoting People v. 

Bochenek, 2021 IL 125889, ¶ 10).

¶ 19 Boyce cited People v. Baker, 2023 IL App (1st) 220328, ¶ 37, for the proposition 

that “[t]he Bruen Court could not have been more clear that its newly announced test applied 

only to laws that attempted to regulate the gun possession of ‘law-abiding citizens,’ and not 

felons like [the] defendant.” (Internal quotation marks omitted.) Boyce, 2023 IL App (4th) 

221113-U, ¶ 14. In the case sub judice, much like in Boyce, defendant contends we discount the 
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“law-abiding citizens” language from Bruen. Defendant argues we interpret “law-abiding 

citizens” to include those who had been convicted of nonviolent felonies. However, Bruen

specifically upheld an earlier statement from District of Columbia v. Heller, 554 U.S. 570 

(2008), that courts should not “ ‘cast doubt on longstanding prohibitions on the possession of 

firearms by felons.’ ” Bruen, 597 U.S. at 81 (Kavanaugh, J., concurring, joined by Roberts, C.J.)

(quoting Heller, 554 U.S. at 626). We find nothing in defendant’s arguments that would persuade 

us to believe Bruen does not apply to felons simpliciter, and defendant provides no argument 

challenging the decision in Boyce or why this case is distinguishable from Boyce. Therefore, 

defendant has failed to show the statute is facially unconstitutional. Boyce, 2023 IL App (4th) 

221113-U, ¶ 16.

¶ 20 B. Second Amendment As-Applied Challenge

¶ 21 In response to defendant’s as-applied challenge, the State argues defendant has 

forfeited the issue because he raised it for the first time on appeal and cites our decision in 

People v. Ivy, 2023 IL App (4th) 220646-U. Defendant initially contends a constitutional 

challenge may be raised at any time. This is simply not true. As we stated in Ivy: 

“ ‘The distinction between facial and as-applied constitutional challenges 

is critical.’ People v. Harris, 2018 IL 121932, ¶ 38. An as-applied constitutional 

challenge requires a defendant show a ‘statute is unconstitutional as it applies to 

the specific facts and circumstances’ of that defendant. Id. Because an as-applied 

constitutional challenge depends on the specific facts and circumstances of that 

defendant, it is vital the record be sufficiently developed on the defendant’s 

specific facts and circumstances for appellate review. Id. ¶ 39. ‘A court is not 

capable of making an “as applied” determination of unconstitutionality when 
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there has been no evidentiary hearing and no findings of fact. [Citation.] Without 

an evidentiary record, any finding that a statute is unconstitutional “as applied” is 

premature.’ (Internal quotation marks omitted.) Id.” Id. ¶ 14. 

¶ 22 Nonetheless, defendant requests we consider his as-applied challenge in the 

interest of judicial economy because the record is sufficiently developed. Judicial economy, 

however, is not a substitution for an evidentiary record as articulated in Harris above. See 

People v. House, 2021 IL 125124, ¶ 31 (holding the appellate court erred when addressing an 

as-applied constitutional challenge pursuant to the proportionate penalties clause of the Illinois 

Constitution without a developed evidentiary record or factual findings).

¶ 23 In Ivy, we stated, “The trial court did not make any factual findings related to 

[the] defendant’s prior convictions nor how they pertain to his present claim pursuant to Bruen. 

Given the record is minimal concerning [the] defendant’s prior felonies ***, we find [the] 

defendant’s as-applied constitutional challenge premature.” Ivy, 2023 IL App (4th) 220646-U, 

¶ 18. Here, like Ivy, the record only contains basic information about defendant’s prior criminal 

history as contained in the PSI. We find nothing in the case at bar is distinguishable from Ivy. 

“Therefore, defendant has forfeited his as-applied constitutional challenge to his unlawful 

possession of a weapon by a felon conviction by raising it for the first time on appeal.” Id.

¶ 24 C. Illinois Constitutional Challenges 

¶ 25 In response to defendant’s facial and as-applied challenges pursuant to article I, 

section 22 of the Illinois Constitution, the State, again, cites Boyce, where we addressed this very 

issue. Defendant provides no argument challenging the decision in Boyce or explaining why this

case is distinguishable from Boyce. We note the same arguments from defendant here were 

presented in Boyce. “Accordingly, we find [the unlawful possession of a weapon by a felon 
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statute] is a proper exercise of police power, and thus defendant has not shown that [it] violates 

the Illinois Constitution on its face or as applied to him.” Boyce, 2023 IL App (4th) 221113-U, 

¶ 18. 

¶ 26 D. Due Process Claim

¶ 27 Lastly, defendant argues the trial court’s consideration of evidence showing 

Hollyfield’s statements to officers—statements not admitted at trial—amounted to reversible 

error. “[T]he deliberations of the trial judge are limited to the record made before him in open 

court,” and “any private investigation *** constitutes a denial to the defendant of the 

constitutional guarantee of a due process of law.” People v. Cooper, 398 Ill. 468, 472 (1947); see 

People v. Thunberg, 412 Ill. 565, 567 (1952); see also People v. McGeoghegan, 325 Ill. 337, 

355-56 (1927). 

¶ 28 The State contends that any error was either invited or harmless. Regarding 

invited error, the State specifically argues defendant expressly asked the trial court to consider 

the video evidence stipulated to by defendant without specifying any limitations, knowing the 

disk contained other videos not admitted into evidence. 

¶ 29 “[U]nder the doctrine of invited error, an accused may not request to proceed in 

one manner and then later contend on appeal that the course of action was error.” (Internal 

quotation marks omitted.) People v. Harvey, 211 Ill. 2d 368, 385 (2004). “Illinois courts have 

applied the invited error doctrine in numerous cases to bar a defendant from claiming error in the 

admission of improper evidence where the admission was procured or invited by defendant.” Id.

at 386.

¶ 30 We note this issue could have been avoided had the parties taken a moment to edit 

the disk to include only the stipulated video before providing it to the trial court. Nonetheless, we 
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do not find the State’s argument for invited error persuasive. While defendant provided the court 

with the video containing additional video evidence not admitted and asked it to view the “entire 

video,” defendant clearly stated he was “not asking the Court to consider anything but what’s 

considered squad video 232.” Therefore, we decline to find this issue falls under the invited error 

doctrine. 

¶ 31 After a series of delays in the trial proceedings, it is apparent from the record the 

trial court ultimately reviewed the entirety of videos on the disk submitted by defendant, and not 

just the video containing “squad video 232.” Due process does not permit the trier of fact—in 

this case, the trial judge—to go outside the record, except for matters of which a court may take 

judicial notice, and the deliberations of the trial judge are limited to the exhibits offered and 

admitted into evidence and the record made before the trial judge in open court. People v. 

Savage, 5 Ill. 2d 296, 302 (1955). Therefore, we find a due process violation occurred. However, 

“[a]fter finding a due process violation, an appellate court must still consider whether the 

violation was harmless.” People v. Williams, 2013 IL App (1st) 111116, ¶ 93. “An error is 

harmless only if the State can demonstrate, beyond a reasonable doubt, that the error did not 

contribute to the verdict.” Id.

¶ 32 The State argues the error did not contribute to the trial court’s verdict, citing the 

court’s direct statement, upon reaching its verdict, “I’ll make it very, very clear that [Hollyfield’s 

statement] does not have a material impact on the Court’s ultimate decision in this case. It is 

simply a fact of something that happened on the video.” When ruling on the issue again on 

defendant’s motion for a new trial, the court reiterated, “it wasn’t material to the Court’s decision 

on this particular case.” Defendant contends the court’s statements do not eliminate the fact the 

court, to some extent, considered Hollyfield’s statements.
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¶ 33 Further, the State argues defendant was found in actual possession of the firearm. 

Defendant argues this is not responsive to the issue raised at trial and on appeal that defendant’s 

possession was not knowing because Hollyfield may have surreptitiously put the firearm into 

defendant’s pocket.

¶ 34 At trial, the State was required to prove that defendant knowingly possessed a 

firearm and he had previously been convicted of leaving the scene of an accident involving death 

or personal injury. 720 ILCS 5/24-1.1(a) (West 2018). The record shows a certified copy of 

defendant’s conviction for the felony offense of leaving the scene of an accident involving death 

or personal injury was properly admitted. The sole issue was whether defendant knowingly 

possessed the firearm recovered from his jacket pocket.

¶ 35 The evidence shows the firearm was found in defendant’s actual possession in his 

jacket pocket. Defendant contends, on appeal, reasonable doubt exists because Hollyfield could 

have surreptitiously put the firearm into defendant’s pocket. The officers on scene considered 

this possibility, but nothing other than this possibility was further developed by defendant during 

his cross-examination of Geiken. Defendant provides no evidence from the record to show 

Hollyfield placed the firearm in defendant’s pocket. As a reviewing court, it is not our duty to 

“search out all possible explanations consistent with innocence and raise them to a level of 

reasonable doubt.” (Internal quotation marks omitted.) People v. Newton, 2018 IL 122958, ¶ 24. 

Based on the evidence presented and admitted at trial, this was not a close case. 

¶ 36 An evidentiary error is harmless where no reasonable probability exists that the 

trier of fact would have acquitted the defendant absent the error. In re E.H., 224 Ill. 2d 172, 180 

(2006). Given the trial court expressly stated its review of Hollyfield’s statements did not impact 
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its verdict and the evidence is sufficient to support beyond a reasonable doubt defendant 

knowingly possessed the firearm while being a convicted felon, the error was harmless.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we affirm the trial court’s judgment.

¶ 39 Affirmed.