NOTICE

This Order was filed under FILED December 27, 2023 Supreme Court Rule 23 and is NO. 4-23-0162 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Winnebago County KELVIN G. LANGSTON, ) No. 19CF195 Defendant-Appellant. ) ) 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,

(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 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

-2- 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

-3- 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

-4- 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,

, 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.’ ”

¶ 12 (quoting People v.

Bochenek,

).

¶ 19 Boyce cited People v. Baker,

, 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,

. In the case sub judice, much like in Boyce, defendant contends we discount the

-5- “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,

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

firearms by felons.’ ” Bruen,

(Kavanaugh, J., concurring, joined by Roberts, C.J.)

(quoting Heller,

). 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,

.

¶ 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,

. 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,

. 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.

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

-6- 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,

(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,

. 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.”

¶ 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

-7- 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,

.

¶ 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,

(1947); see

People v. Thunberg,

(1952); see also People v. McGeoghegan,

(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,

(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.”

.

¶ 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

-8- 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,

(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,

. “An error is

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

contribute to the verdict.”

¶ 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.

-9- ¶ 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,

, ¶ 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.,

(2006). Given the trial court expressly stated its review of Hollyfield’s statements did not impact

- 10 - 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.

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