People v. Spencer

                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Spencer, 

2012 IL App (1st) 102094

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



District & No.             First District, First Division
                           Docket No. 1-10-2094


Filed                      February 6, 2012


Held                       Defendant’s conviction for unlawful use of a weapon was upheld over his
(Note: This syllabus       contentions that the State failed to present sufficient evidence to prove his
constitutes no part of     guilt beyond a reasonable doubt where the evidence, viewed in the light
the opinion of the court   most favorable to the prosecution, coupled with the reasonable inferences
but has been prepared      drawn therefrom, warranted the conclusion that a rational trier of fact
by the Reporter of         could have found defendant constructively possessed the revolver and
Decisions for the          ammunition discovered in a search of defendant’s residence and that the
convenience of the         State had proven the essential elements of unlawful possession of a
reader.)
                           weapon by a felon beyond a reasonable doubt, and, furthermore, the
                           appellate court rejected defendant’s argument that the statute under which
                           he was convicted unconstitutionally infringed on the second amendment
                           right to bear arms.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-06736; the
Review                     Hon. Nicholas Ford, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 DePaul University College of Law, of Chicago (Patrick F. Cassidy, of
Appeal                     counsel), for appellant.

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


Panel                      PRESIDING JUSTICE HOFFMAN delivered the judgment of the court,
                           with opinion.
                           Justices Karnezis and Rochford concurred in the judgment and opinion.



                                             OPINION

¶1           Following a bench trial, the defendant, Terrence Spencer, was convicted of unlawful use
        of a weapon (720 ILCS 5/24-1.1 (West 2008)) and sentenced to serve three years in the
        Illinois Department of Corrections, with a recommendation for boot camp. On appeal, the
        defendant challenges his conviction, asserting that (1) the State failed to present sufficient
        evidence to prove his guilt beyond a reasonable doubt, and (2) the statute under which he was
        convicted is unconstitutional because it infringes on the right to bear arms as guaranteed by
        the second amendment. For the reasons that follow, we affirm.
¶2           At trial, the State called Chicago police officer James Green, who testified that, at
        approximately 10 p.m. on March 21, 2009, he executed a warrant authorizing a search of the
        defendant and of the premises located at 2101 South 12th Avenue in Maywood, Illinois.
        Officer Green stated that he was accompanied by about 16 other officers, some of whom
        went with him to the front door of the single-family house, while others proceeded to the
        backyard. According to Officer Green, the officers knocked on the front door and announced
        their office, but no one answered. After waiting an appropriate amount of time, they forced
        entry through the front door, which opened into a living room. Beyond the living room was
        a bedroom, a second bedroom, a bathroom, a third bedroom, a kitchen, and a rear door that
        led out to the backyard. In addition, there was a basement in the residence that contained a
        single bedroom.
¶3           Officer Green testified that, when he and his fellow officers entered the house, he saw
        the defendant and several other individuals in the living room, but the defendant immediately
        ran toward the kitchen and the rear of the house. Officer Green stated that he pursued the
        defendant as he fled from the house. When the defendant got to the backyard, he was
        detained by Officer Kuri, who was standing outside with the defendant’s mother. Officer
        Green testified that he went out to the backyard and heard the defendant make a statement
        indicating that the police “were going to find nothing but money.” The officers then took the
        defendant and his mother back into the house.

                                                 -2-
¶4        Officer Green further stated that, after a canine unit had completed a search of the
     premises, he began his own systematic search of the house. In the third bedroom, he found
     a bed, a dresser, and a closet containing men’s clothes. Lying on the top of the dresser were
     three live rounds of .357-caliber ammunition, several bundles of cash totaling $9,286, and
     a plastic bag containing a substance that he suspected was cannabis. Another officer
     recovered several other items indicating that the defendant lived in the house. Those items
     consisted of (1) a December 29, 2008, letter from the circuit court of Cook County probation
     department, which was addressed to the defendant at that house, (2) the defendant’s Illinois
     identification card bearing the same address, (3) two photographs depicting the defendant
     and other men, and (4) a set of keys that opened the outer doors of the house. The probation
     department letter was recovered from the closet, and the identification card, keys, and
     photographs were recovered from the “closet area.” Officer Green testified that, when these
     items were discovered, he returned to the living room, placed the defendant in custody, and
     advised him of his Miranda rights. According to Officer Green, the defendant indicated that
     he understood each of his rights and then made a statement to the effect that “if you had my
     kind of money, you’d have a gun, too.”
¶5        Officer Green further testified that he and some of his team members then proceeded to
     search the kitchen. Officer Lipsey knelt on the kitchen counter and reached up to the top of
     a kitchen cabinet, where she discovered a loaded bluesteel .357-caliber revolver containing
     6 live rounds, a black holster, and a plastic bag containing 14 rounds of 7.62-caliber
     ammunition and 2 rounds of .357-caliber ammunition. The officers then searched the first
     bedroom near the front of the house, where Officer Kuri recovered approximately $14,020
     from a small metal box on the nightstand. Finally, Officer Kuri performed a custodial search
     of the defendant and recovered $525. Officer Green further testified that he created contact
     cards for the individuals who were in the house at the time of the search. These individuals
     included Laura Grays, Devon Mennett, Lee Arlee, Dante Fox, and Terrell Spencer. Arlee,
     Fox, and Terrell Spencer all gave the address of the house identified in the search warrant
     as their residence.
¶6        Following Officer Green’s testimony, the State introduced a certified copy of the
     defendant’s conviction in case number 06 CR 10848, in which he had pled guilty to
     aggravated unlawful use of a weapon and was sentenced to 18 months’ probation on
     December 12, 2008.
¶7        The defendant called four witnesses to testify on his behalf. Liana Grays, the defendant’s
     younger sister, testified that she lived at 2101 South 12th Avenue in Maywood and was in
     the living room when the police executed the search warrant. She also stated that, when the
     police entered the house, they met her cousin, Dante Fox, at the front door. The officers then
     told her to get on the floor while they searched and questioned her. According to Liana, the
     defendant was in the backyard of the house that day, but he did not live at the house, nor did
     he run to the back of the house when the police arrived. Liana admitted that she had a
     previous felony conviction for possession of a controlled substance from 2004 and that she
     is close to her brother and would not want anything bad to happen to him.
¶8        Dante Fox, the defendant’s cousin, testified that he lived at the house in Maywood and

                                              -3-
       was in the living room with Liana when the police arrived. According to Fox, the police told
       them to get down and put their hands up. Fox stated that he did not see the defendant run
       through the house when the police arrived and that he had not seen the defendant before the
       police arrived. He also acknowledged that he was close to the defendant and did not want
       anything bad to happen to him. In addition, Fox denied that he had ever spoken with the
       defendant about what occurred that day.
¶9         Laura Grays, the defendant’s mother, testified that she operated a cash business from her
       home, selling packaged dinners for $10 each, and that she was in the kitchen when the police
       arrived. Laura denied that the defendant lived in her house at that time, but she
       acknowledged that he was in the backyard when the police came to execute the search
       warrant. She also denied seeing the defendant run through the house and out of the back
       door, though he had been inside the house earlier that day. According to Laura, the residents
       of the house consisted of herself, her daughter, Liana, Dante Fox, Michael Jenkins, and
       Devon Mennett. Laura also testified that she had never spoken with her son about the case.
¶ 10       Edwin King testified that he was the defendant’s barber. King stated that, when the police
       arrived, he was in the kitchen because he wanted to purchase two packaged dinners from the
       defendant’s mother. King stated that he did not live at the house and did not know where the
       defendant lived on March 21, 2009. King further stated that he had seen the defendant in the
       backyard earlier, but he did not know where the defendant was when the police arrived. King
       testified that he had cut the defendant’s hair several times since the date of the search and
       that, although the defendant told him to be in court to testify, he had never spoken with the
       defendant about what occurred that day.
¶ 11       During closing arguments, the prosecutor stated that the letter from the probation
       department was dated “March 11, 2009, approximately ten days prior to this incident.” In
       finding the defendant guilty, the trial judge stated that his ruling was predicated on his
       observation of the witnesses and his review of the exhibits. The court found that Officer
       Green was a “competent,” “credible,” and “good witness,” and, based on the items recovered
       from the third bedroom, the court concluded that the defendant lived at the house. In
       particular, the court noted that there was “proof of residency dated almost on top of the date
       the search warrant was executed.” The court further noted the defendant’s Illinois
       identification card listed that address as his residence and that the photographs depicted the
       defendant and other men displaying gang signals. In addition, the court observed that, as soon
       as the defendant was apprehended and before the premises had been searched, he told the
       officers that all they were going to find was money and that the officers found almost
       $24,000 in cash, of which $9,000 was found along with ammunition on the dresser in the
       third bedroom. The court determined that the defendant’s knowledge of the presence of the
       cash, coupled with the items indicating that he resided in the house, established that the
       defendant lived there.
¶ 12       The trial court further found that, although the defense witnesses were “not terrible,” they
       were “tainted” by their relationships with the defendant and that “a dark cloud” was cast over
       their testimony. The court rejected as entirely implausible the defendant’s theory that he did
       not live at the house but knew there would be a large amount of money there because his

                                                 -4-
       mother sold dinners for $10 each. The trial court also found it significant that the defendant
       connected himself to the revolver by stating that, considering the amount of money he had,
       it was necessary to have a gun. In particular, the court commented that, “[o]nce the gun is
       found, it’s like, well, yeah, I’ve got a gun, you’ve got to have a gun if you’ve got this much
       money. His gun, his money, he constructively possessed it.”
¶ 13        The defendant filed a motion for a new trial, arguing that he had not been proven guilty
       beyond a reasonable doubt. In denying the motion, the trial court reiterated that the proofs
       of residence recovered from the same bedroom as the bullets and the defendant’s statement
       to the police that they would not find anything but money were strong evidence of his
       residence at the house and his possession of those bullets. In addition, the court stated that
       the defendant’s admission about having a gun in conjunction with that quantity of money
       established his possession of the firearm.
¶ 14        Following a sentencing hearing, the court sentenced the defendant to three years in the
       Illinois Department of Corrections, with a recommendation for boot camp. The court also
       imposed a fine of $15,000 to be collected from the money recovered during the search. This
       appeal followed.
¶ 15        The defendant initially argues that the State failed to prove him guilty beyond a
       reasonable doubt. We disagree.
¶ 16        The due process clause of the fourteenth amendment to the United States Constitution
       requires that a person may not be convicted in state court “ ‘except upon proof beyond a
       reasonable doubt of every fact necessary to constitute the crime with which he is charged.’ ”
       People v. Cunningham, 

212 Ill. 2d 274, 278

, 

818 N.E.2d 304

 (2004) (quoting In re Winship,
       

397 U.S. 358, 364

 (1970)). When a defendant challenges the sufficiency of the evidence, the
       appellate court must determine “whether, after viewing the evidence in the light most
       favorable to the prosecution, any rational trier of fact could have found the essential elements
       of the crime beyond a reasonable doubt.” (Emphasis omitted.) Jackson v. Virginia, 

443 U.S. 307, 319

 (1979); see also People v. Collins, 

214 Ill. 2d 206, 217

, 

824 N.E.2d 262

 (2005). It
       is not the role of the reviewing court to retry the defendant, and a conviction will not be set
       aside unless the evidence is so unreasonable, improbable, or unsatisfactory that it creates a
       reasonable doubt of the defendant’s guilt. People v. Sutherland, 

223 Ill. 2d 187, 242

, 

860 N.E.2d 178

 (2006). In reviewing the evidence, we will not substitute our judgment for that
       of the trier of fact. Sutherland, 

223 Ill. 2d at 242

. The determination of the weight to be given
       the witnesses’ testimony, their credibility, resolution of inconsistencies and conflicts in the
       evidence, and reasonable inferences to be drawn from the testimony are the responsibility of
       the trier of fact. Sutherland, 

223 Ill. 2d at 242

.
¶ 17        Section 24-1.1(a) provides, in relevant part, as follows:
            “It is unlawful for a person to knowingly possess *** in his own abode *** any firearm
            or any firearm ammunition if the person has been convicted of a felony under the laws
            of this State or any other jurisdiction.” 720 ILCS 5/24-1.1(a) (West 2008).
       When a defendant is not found in actual possession, the State must prove constructive
       possession. People v. McCarter, 

339 Ill. App. 3d 876, 879

, 

791 N.E.2d 1278

 (2003). To

                                                 -5-
       establish constructive possession, the prosecution must prove that the defendant (1) had
       knowledge of the presence of the firearm and ammunition and (2) exercised immediate and
       exclusive control over the area where the firearm and ammunition were found. McCarter,
       

339 Ill. App. 3d at 879

; People v. Brown, 

327 Ill. App. 3d 816, 824

, 

764 N.E.2d 562

 (2002).
       Knowledge may be shown by evidence of a defendant’s acts, declarations, or conduct from
       which it can be inferred that he knew the contraband existed in the place where it was found.
       People v. Beverly, 

278 Ill. App. 3d 794, 798

, 

663 N.E.2d 1061

 (1996). Control is established
       when a person has the “intent and capability to maintain control and dominion” over an item,
       even if he lacks personal present dominion over it. People v. Frieberg, 

147 Ill. 2d 326, 361

,
       

589 N.E.2d 508

 (1992). The defendant’s control over the location where weapons are found
       gives rise to an inference that he possessed the weapons. McCarter, 

339 Ill. App. 3d at 879

.
       Habitation in the premises where contraband is discovered is sufficient evidence of control
       to constitute constructive possession. People v. Cunningham, 

309 Ill. App. 3d 824, 828

, 

723 N.E.2d 778

 (1999). “ ‘Proof of residency in the form of rent receipts, utility bills and clothing
       in closets is relevant to show the defendant lived on the premises and therefore controlled
       them.’ ” Cunningham, 

309 Ill. App. 3d at 828

 (quoting People v. Lawton, 

253 Ill. App. 3d 144, 147

, 

625 N.E.2d 348, 350

 (1993)). In deciding whether constructive possession has been
       shown, the trier of fact is entitled to rely on reasonable inferences of knowledge and
       possession, absent other factors that might create a reasonable doubt as to the defendant’s
       guilt. See People v. Smith, 

191 Ill. 2d 408, 413

, 

732 N.E.2d 513

 (2000).
¶ 18       In this case, the evidence presented at trial established that three live rounds of .357-
       caliber ammunition were found on the dresser in the third bedroom, along with numerous
       bundles of cash totaling more than $9,000. In the closet of that same room, the police
       discovered the defendant’s Illinois identification card, listing the address of the house as his
       residence, as well as the December 29, 2008, letter mailed by the Cook County probation
       department to the defendant at that address, a set of keys that operated the exterior doors of
       the house, two photographs depicting the defendant, and men’s clothing. In addition, Officer
       Green testified that the defendant made two statements while the officers were on the
       premises: before the search had begun, the defendant told the officers that they would not
       find anything but money; after the three rounds of .357-caliber ammunition were discovered
       along with several bundles of cash on the dresser in the third bedroom, the defendant made
       a statement to the effect that he needed to have a gun because of the amount of money that
       he had. As the trial court observed, by making these statements, the defendant linked himself
       to both the gun and the large amounts of cash recovered in the house. Moreover, Officer
       Green’s testimony that the defendant fled from the house by running from the living room
       and out to the backyard would support a reasonable inference that he had knowledge of the
       presence of the revolver and ammunition. See People v. Harris, 

52 Ill. 2d 558, 561

, 

288 N.E.2d 385

 (1972) (holding that evidence of flight is admissible as a circumstance tending
       to show consciousness of guilt); People v. Peete, 

318 Ill. App. 3d 961, 966

, 

743 N.E.2d 689

       (2001). Viewing all of the evidence in the light most favorable to the prosecution, coupled
       with the reasonable inferences that may be drawn therefrom, we conclude that a rational trier
       of fact could have found that the defendant constructively possessed the revolver and the


                                                 -6-
       ammunition recovered at the time of the search and that the State had proven the essential
       elements of unlawful possession of a weapon by a felon beyond a reasonable doubt. See
       Jackson, 

443 U.S. at 319

; Collins, 

214 Ill. 2d at 217

.
¶ 19        In reaching this conclusion, we reject the defendant’s claim that the trial court improperly
       relied on evidence of other crimes and placed undue emphasis on the substantial amount of
       money that was recovered during the search. The record reflects that the trial judge stated
       that “the money only shows that [the defendant] had an awareness of what was going on in
       the house” and that “that’s not why I’m finding him guilty. He knew about the money right
       away, indicating he lived *** there. When he talks about the gun, he talked about the fact
       that it was a necessity when considered in concert with the money.” Nor did the court
       demonstrate faulty reasoning by stating “[h]is gun, his money, he constructively possessed
       it.” When read in context, this comment clearly indicates that the trial judge was merely
       stating his ultimate conclusion that the defendant constructively possessed the revolver,
       which the defendant had indicated was necessary in order to safeguard the large amounts of
       cash he had in the house.
¶ 20        We are also unpersuaded by the defendant’s assertion that his conviction was based on
       speculation and misstatements of the facts because the trial court did not recall the evidence
       as to the timing of his statement regarding the need for a gun. Though the court did remark
       at one point that the defendant’s statement was made “[o]nce the gun [was] found,” the court
       previously had found that the statement was made “before the gun [was] recovered,” which
       was consistent with the testimony of Officer Green.
¶ 21        In addition, we do not agree that the trial court’s statement that there was “proof of
       residency dated almost on top of the date the search warrant was executed” mandates reversal
       of the defendant’s conviction. This comment apparently related to the December 29, 2008,
       letter from the Cook County probation department, which was mailed to the defendant
       almost three months prior to the search of the house. Though it appears that the trial judge’s
       reference to the timing of that letter was mistaken, that circumstance does not demonstrate
       a violation of the defendant’s due process rights. As set forth above, the totality of the
       evidence presented at trial, considered with all reasonable inferences that may be drawn
       therefrom and in the light most favorable to the prosecution, supports a finding that the
       defendant constructively possessed the revolver and ammunition recovered during the search.
¶ 22        Finally, we reject the defendant’s contention that consideration of his statement regarding
       the need for a gun would violate the corpus delicti rule. The recovery of the revolver from
       above the kitchen cabinet constituted sufficient evidence to corroborate his incriminating
       statement. See People v. Bounds, 

171 Ill. 2d 1, 42

, 

662 N.E.2d 1168

 (1995) (holding that
       independent corroborative evidence required to corroborate a confession need not establish
       beyond a reasonable doubt that an offense occurred). Based on all of the above
       considerations, we hold that the evidence presented at trial was sufficient to prove the
       defendant’s guilt of unlawful use of a weapon beyond a reasonable doubt.
¶ 23        We next address the defendant’s argument that the unlawful use of a weapon (UUW)
       statute under which he was convicted is unconstitutional because it infringes on the right to


                                                 -7-
       bear arms as guaranteed by the second amendment to the United States Constitution. Though
       this issue was not presented to the trial court, a constitutional challenge to a statute may be
       raised at any time. See In re J.W., 

204 Ill. 2d 50, 61-62

, 

787 N.E.2d 747

 (2003); People v.
       Williams, 

2011 IL App (1st) 093350

, ¶ 49. Whether a statute is constitutional is a question
       of law to be reviewed de novo. People v. Morgan, 

203 Ill. 2d 470, 486

, 

786 N.E.2d 994

       (2003); Williams, 

2011 IL App (1st) 093350, ¶ 49

. The second amendment provides as
       follows:
                “A well regulated Militia, being necessary to the security of a free State, the right of
            the people to keep and bear Arms, shall not be infringed.” U.S. Const., amend. II.
¶ 24        Relying on the Supreme Court’s decisions in District of Columbia v. Heller, 

554 U.S. 570

 (2008), and McDonald v. City of Chicago, 

561 U.S. ___

, 

130 S. Ct. 3020

 (2010), the
       defendant contends that, because the core of the second amendment is the protection of an
       individual’s right to keep a firearm in his home for self-defense, the UUW criminal statute
       is facially unconstitutional under the second amendment and is unconstitutional as applied
       to him under the specific facts of this case because his prior felonies were nonviolent. We
       disagree with both contentions.
¶ 25        In Heller, the Supreme Court struck down a District of Columbia ordinance because it
       imposed a total ban on possession of a functional handgun in the home and required that any
       lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering
       it inoperable. Heller, 

554 U.S. at 628

. The Court’s decision was based on its conclusion that
       the second amendment “elevates above all other interests the right of law-abiding,
       responsible citizens to use arms in defense of hearth and home.” Heller, 

554 U.S. at 635

. In
       McDonald, the Supreme Court struck down two similar municipal ordinances and held that
       the protections of the second amendment applied to the states through the due process clause
       of the fourteenth amendment. McDonald, 

561 U.S. at ___

, 

130 S. Ct. at 3050

. The Court also
       held that the right to bear arms under the second amendment is a fundamental right.
       McDonald, 

561 U.S. at ___

, 

130 S. Ct. at 3036

-37 (citing Heller, 

554 U.S. at 594

).
¶ 26        In addressing the defendant’s argument, we initially consider the level of constitutional
       scrutiny that should be applied to the UUW statute in this case. Although statutes limiting
       a fundamental right are typically subject to strict scrutiny and, therefore, are presumed to be
       unlawful (see People v. Aguilar, 

408 Ill. App. 3d 136, 145

, 

944 N.E.2d 816

 (2011) (citing
       Harris v. McRae, 

448 U.S. 297, 312

 (1980)), appeal allowed, No. 112117 (Ill. May 25,
       2011)), the Supreme Court has declined to impose this level of scrutiny to statutes
       prohibiting felons from possessing firearms and has specifically recognized that such statutes
       are presumptively valid (see Heller, 

554 U.S. at 627

 n.26). Therefore, we find that the
       intermediate level of scrutiny applies. See People v. Robinson, 

2011 IL App (1st) 100078, ¶ 18

; People v. Mimes, 

2011 IL App (1st) 082747, ¶ 74

 (and cases cited therein); People v.
       Ross, 

407 Ill. App. 3d 931, 939

 (2011) (and cases cited therein); Aguilar, 

408 Ill. App. 3d at 146

. To satisfy the intermediate level of constitutional scrutiny, the challenged statutory
       provision must serve a significant, substantial or important governmental interest, and the
       fit between the challenged law and the asserted objective must be reasonable. Mimes, 

2011 IL App (1st) 082747, ¶ 74

; Wilson v. Cook County, 

407 Ill. App. 3d 759, 767

, 943 N.E.2d

                                                 -8-
       768 (2011), appeal allowed, No. 112026 (Ill. May 25, 2011); see also United States v.
       Williams, 

616 F.3d 685, 692

 (7th Cir. 2010).
¶ 27        Statutory enactments are presumed constitutional, and it is the duty of the court to
       construe a statute so as to affirm its constitutionality, if such a construction is reasonably
       possible. People v. Cornelius, 

213 Ill. 2d 178, 189

, 

821 N.E.2d 288

 (2004). In addition,
       because the legislature has wide latitude in prescribing criminal penalties under its police
       power and has an obligation to protect its citizens from known criminals, a party raising a
       constitutional challenge has the burden of proving that the statute fails to comply with the
       requirements of due process. People v. Jones, 

223 Ill. 2d 569, 596

, 

861 N.E.2d 967

 (2006);
       Ross, 

407 Ill. App. 3d at 939

.
¶ 28        The UUW statute prohibits the possession of a firearm or ammunition by any person
       previously convicted of any felony. 720 ILCS 5/24-1.1(a) (West 2008). The purpose of this
       statute is to protect the public from the danger posed by convicted felons possessing firearms.
       Robinson, 

2011 IL App (1st) 100078, ¶ 19

; Aguilar, 

408 Ill. App. 3d at 146

; People v. Davis,
       

408 Ill. App. 3d 747, 750

, 

947 N.E.2d 813

 (2011); People v. Crawford, 

145 Ill. App. 3d 318, 321

, 

495 N.E.2d 1025

 (1986).
¶ 29        The defendant cites Heller and McDonald in support of his claim that the UUW statute
       violates his second amendment right because it precludes him from possessing a firearm
       within his home for the purpose of self-defense. However, the Supreme Court recognized
       that certain classes of people may be disqualified from the exercise of second amendment
       rights (Heller, 

554 U.S. at 635

) and that federal and state legislatures and local governments
       have police powers to pass laws that promote the health, safety and general welfare of their
       citizens, and that the police power includes the power to regulate certain aspects of gun
       possession and ownership (McDonald, 

561 U.S. at ___

, 

130 S. Ct. at 3047

). In addition, the
       Court has explicitly stated that its decisions in Heller and McDonald did not “cast doubt on
       such longstanding *** ‘prohibitions on the possession of firearms by felons.’ ” McDonald,
       

561 U.S. at ___

, 

130 S. Ct. at 3047

 (quoting Heller, 

554 U.S. at 571

).
¶ 30        The defendant contends the Supreme Court’s statements in Heller and McDonald relating
       to statutes prohibiting the possession of firearms by felons constitute dicta and do not govern
       our resolution of the instant case. However, judicial dicta are entitled to much weight and
       should be followed by an inferior court. See Cates v. Cates, 

156 Ill. 2d 76, 80

, 

619 N.E.2d 715

 (1993); see also People v. Williams, 

204 Ill. 2d 191, 206

, 

788 N.E.2d 1126

 (2003);
       Davis, 

408 Ill. App. 3d at 750

.
¶ 31        We conclude that the UUW statute is substantially related to the important governmental
       objective of protecting the health, safety and general welfare of its citizens, and the fit
       between the UUW statute and that governmental objective is reasonable. See Robinson, 

2011 IL App (1st) 100078, ¶ 26

; Davis, 

408 Ill. App. 3d at 750

. Therefore, the UUW statute does
       not, on its face, violate the second amendment. See Robinson, 

2011 IL App (1st) 100078, ¶ 28

; Davis, 

408 Ill. App. 3d at 750

.
¶ 32        Defendant also challenges the constitutionality of the UUW statute as it was applied to
       him because his prior convictions were for nonviolent felonies. In response, the State


                                                -9-
       correctly asserts that this argument is not subject to review where the defendant failed to
       litigate the issue in the trial court and, therefore, the court did not conduct an evidentiary
       hearing or make a factual finding as to whether the defendant possessed the firearm and
       ammunition for the purpose of self-defense. See In re the Parentage of John M., 

212 Ill. 2d 253, 268

, 

817 N.E.2d 500

 (2004) (holding that “[a] court is not capable of making an ‘as
       applied’ determination of unconstitutionality when there has been no evidentiary hearing and
       no findings of fact”); see also Lebron v. Gottlieb Memorial Hospital, 

237 Ill. 2d 217, 228

,
       

930 N.E.2d 895

 (2010). Moreover, we note that, even if the trial court had conducted an
       evidentiary hearing and made sufficient factual determinations, we would reject the
       defendant’s claim where the UUW statute does not include any exception for persons
       convicted of nonviolent felonies (720 ILCS 5/24-1.1(a) (West 2008)), nor has the Supreme
       Court recognized any such exception in Heller or McDonald.
¶ 33        For the reasons set forth above, the defendant’s conviction and sentence are affirmed.

¶ 34      Affirmed.




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