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THIRD DIVISION
September 30, 2003

No. 1-02-2919

JUSTICE KARNEZIS delivered the opinion of the court:

Following a bench trial, defendant Frank Washington was convicted ofaggravated unlawful use of a weapon (aggravated UUW) ( 720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2000)) and possession of a controlled substance (720 ILCS570/402(c) (West 2000)). Defendant was sentenced to nine years' imprisonment foraggravated unlawful use of a weapon and three years' imprisonment for possession ofa controlled substance, to be served concurrently. On appeal, defendant argues: (1)the aggravated UUW statute violates substantive due process; (2) the aggravatedUUW statute violates the proportionate penalties clause when compared to recklessdischarge of a firearm; (3) the State failed to prove defendant guilty of possession of acontrolled substance beyond a reasonable doubt; and (4) the State failed to prove, beyond a reasonable doubt, the factors used to extend his sentence. We affirm.

BACKGROUND

We will discuss only those facts relevant to the disposition of this appeal.

On November 14, 2001, after being alerted to possible narcotics transactions,Officer Lanell Aubert of the Chicago police department, with his partners OfficersMadison and Green, set up surveillance of a residence at 6040 South Wood Street.Officer Aubert had an unobstructed view of the residence from his post across thestreet at 6033 South Wood Street and could see defendant, whom he later identified incourt, standing on the sidewalk in front of 6040 South Wood Street.

Officer Aubert testified that as he was watching, he saw an unidentifiedindividual hand defendant a sum of money. After receiving the money, defendantwalked toward the gangway, pulled back some aluminum siding from the facade of theresidence and retrieved a plastic bag. Defendant retrieved a smaller item from thelarger plastic bag and then returned the plastic bag underneath the aluminum siding,. Defendant returned to the individual and handed him the small item he had retrievedfrom the plastic bag. The individual then walked off. Two other individuals approacheddefendant on two separate occasions and the aforementioned process was repeated.

After the third transaction, Officer Aubert radioed his partners and informed themof his observations. After Officers Madison and Green had detained defendant, OfficerAubert entered the gangway and looked under the aluminum siding where he had seendefendant retrieve the large plastic bag. There, Officer Aubert discovered a plastic bagcontaining smaller items which he suspected were cocaine.

Officer Madison testified that after he was alerted by Officer Aubert regarding thenarcotics transactions Officer Aubert had witnessed, he and Officer Green approached6040 South Wood in their unmarked vehicle. As he was exiting his vehicle to approachdefendant, Officer Madison observed defendant remove a blue, steel weapon from hiswaistband and throw the weapon to the ground. Defendant was taken into custody andthe gun was recovered. Officer Madison found that the weapon contained one liveround and one spent round. In addition, it was later discovered that defendant did nothave a valid firearm owner's identification card (FOID).

The parties then stipulated that Officer Aubert inventoried the recovered twoitems of suspected cocaine that he had recovered from the plastic bag found in thefacade of the residence and that there was a proper chain of custody maintained at alltimes over the recovered items.

The parties also stipulated that if called to testify, forensic chemist Brister, who isemployed by the Illinois State Police crime lab and qualified as an expert in the area offorensic chemistry, would testify that he received the items recovered by Officer Aubertin a sealed condition. He weighed the two items of suspected cocaine and discoveredthat the total estimated weight of the recovered items was 0.2 grams. He thenperformed tests, commonly accepted in the area of forensic chemistry for ascertainingthe presence of a controlled substance, on the two items and opined within areasonable degree of scientific certainty that the items tested positive for the presenceof cocaine.

Following this testimony and the testimony of several defense witnesses, thecourt found defendant of guilty aggravated UUW and possession of a controlledsubstance. It is from this judgment that defendant now appeals.

ANALYSIS

A. Substantive Due Process

Defendant first attacks the constitutionality of the aggravated UUW statute andargues that it violates substantive due process because it lacks a culpable mental stateand punishes innocent conduct. We recently considered and rejected this argument inPeople v. Grant, 339 Ill. App. 3d 792, 791 N.E.2d 100 (2003). In Grant, this court heldthat the aggravated UUW statute does, if fact, contain a sufficient mental state, i.e.,knowledge, and does not violate substantive due process as it is rationally related tolegitimate state goals. Grant, 339 Ill. App. 3d at 806, 791 N.E.2d at 111-12; see alsoPeople v. McGee, No. 1-02-2637 (June 30, 2003); People v. Marin, No. 1-01-1080(August 11, 2003).

B. Proportionate Penalties

Defendant contends that the aggravated unlawful use of a weapon statute (720ILCS 5/24-1.6 (West 2000)), which is a Class 2 felony when a defendant has aprevious felony conviction, violates the proportionate penalties clause of the IllinoisConstitution when compared to the reckless discharge of a firearm statute (720 ILCS5/24-1.5 (West 2000), which is always a Class 4 felony.

The aggravated UUW statute provides:

"(a) A person commits the offense of aggravated unlawful use of aweapon when he or she knowingly:

(1) Carries on or about his or her person or in any vehicle or concealedon or about his or her person except when on his or her land or in his or herabode or fixed place of business any pistol, revolver, stun gun or taser or otherfirearm; or

(2) Carries or possesses on or about his or her person, upon any public street,alley, or other public lands within the corporate limits of a city, village orincorporated town, except when an invitee thereon or therein, for the purpose ofthe display of such weapon or the lawful commerce in weapons, or except whenon his or her own land or in his or her own abode or fixed place of business, anypistol, revolver, stun gun or taser or other firearm; and

(3) One of the following factors is present:

(A) the firearm possessed was uncased, loaded and immediatelyaccessible at the time of the offense; or

(B) the firearm possessed was uncased, unloaded and the ammunition for theweapon was immediately accessible at the time of the offense; or

(C) the person possessing the firearm has not been issued a currently validFirearm Owner's Identification Card; or

(D) the person possessing the weapon was previously adjudicated a delinquentminor under the Juvenile Court Act of 1987 for an act that if committed by anadult would be a felony; or

(E) the person possessing the weapon was engaged in a misdemeanor violationof the Cannabis Control Act or in a misdemeanor violation of the IllinoisControlled Substances Act; or

(F) the person possessing the weapon is a member of a street gang or isengaged in street gang related activity, as defined in Section 10 of the IllinoisStreetgang Terrorism Omnibus Prevention Act; or

(G) the person possessing the weapon had a[n] order of protection issuedagainst him or her within the previous 2 years; or

(H) the person possessing the weapon was engaged in the commission orattempted commission of a misdemeanor involving the use or threat of violenceagainst the person or property of another; or

(I) the person possessing the weapon was under 21 years of age and inpossession of a handgun as defined in Section 24-3, unless the person under 21is engaged in lawful activities under the Wildlife Code or described in

subsection 24-2(b)(1), (b)(3), or 24-2(f).

* * *

(c) This Section does not apply to or affect the transportation or

possession of weapons that:

(i) are broken down in a non-functioning state; or

(ii) are not immediately accessible; or

(iii) are unloaded and enclosed in a case, firearm carrying box, shippingbox, or other container by a person who has been issued a currently validFirearm Owner's Identification Card.

(d) Sentence. Aggravated unlawful use of a weapon is a Class 4 felony; asecond or subsequent offense is a Class 2 felony. Aggravated unlawfuluse of a weapon by a person who has been previously convicted of afelony in this State or another jurisdiction is a Class 2 felony." 720 ILCS5/24-1.6 (West 2002).

Conversely,

"(a) A person commits the offense of reckless discharge of a firearm by

discharging a firearm in a reckless manner which endangers the bodily safety

of an individual.

(b) If the conduct described in subsection (a) is committed by a passenger

of a moving motor vehicle with the knowledge and consent of the driver of the

motor vehicle the driver is accountable for such conduct.

(c) Reckless discharge of a firearm is a Class 4 felony.

(d) This Section does not apply to a peace officer while in theperformance of his or her official duties." 720 ILCS 5/24-1.5 (West 2002).

The proportionate penalties clause provides "[a]ll penalties shall be determinedboth according to the seriousness of the offense and with the objective of restoring theoffender to useful citizenship." Ill.Const. 1970, art. I,