People v. Laubscher , 288 Ill. App. 3d 438 ( 1997 )

                              NO. 4-96-0457

                         IN THE APPELLATE COURT

                               OF ILLINOIS

                             FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,    )   Appeal from

         Plaintiff-Appellee,           )   Circuit Court of

         v.                            )   Champaign County

ANTHONY J. LAUBSCHER,                   )   No. 95CF1120

         Defendant-Appellant.          )

                                       )   Honorable

                                       )   Harold L. Jensen,

                                       )   Judge Presiding.

_________________________________________________________________

         JUSTICE KNECHT delivered the opinion of the court:

         On March 12, 1996, following a bench trial in the

circuit court of Champaign County, defendant Anthony J. Laubscher

was convicted of unlawful use of weapons (720 ILCS 5/24-1(a)(4)

(West 1994)) and aggravated assault (720 ILCS 5/12-2(a)(1) (West

1994)).  The trial court sentenced defendant to concurrent terms

of two years' probation on each count.  Defendant appeals,

contending his conviction of unlawful use of weapons is against

the manifest weight of the evidence.  We agree and reverse.  

         At trial, Chris Darvin testified he observed an

argument on September 10, 1995.  He saw defendant arguing with

two young males, no older than 16 or 17, on the lawn area of an

apartment complex where Darvin resided.  Darvin did not hear the

entire argument, but did hear defendant yell, "If you have a

problem with it, I got something for you."  Darvin approached the

three and stood between one of the young males and defendant.

Defendant told Darvin to stand back.  Defendant looked at Darvin

a couple of times but concentrated on the two young males.

Darvin concluded he was not going to break up the argument, so he

backed away.  As he backed away, Darvin observed a gun protruding

from defendant's waistband.  Darvin could see the pistol grip to

the firing mechanism.  When Darvin noticed the gun, he was 7 to

10 feet from defendant.  Darvin then removed the weapon from

defendant's waistband.  

         During this time, it was dark outside, but most of the

lights were on in the eight-unit apartment building.  Defendant's

shirt was tucked into his blue jeans.  Darvin had not seen

defendant at the apartment complex prior to the incident but had

seen defendant there since then.  Other testimony established

defendant resided at the apartment complex where the incident

occurred and the weapon he carried was loaded.  Defendant

presented no evidence.

         The trial court concluded the handgun was a concealed

weapon and was intended to be concealed.  The trial court

emphasized Darvin failed to notice the gun as he approached the

three individuals and while he was standing among them.  In

addition, the trial court concluded the State negated the

statutory exceptions.  The trial court noted testimony showed the

incident occurred on a public area of the apartment complex.

From this the trial court concluded the land could not be owned

by defendant or be his abode.  The trial court concluded

defendant was not at his personal place of business from

testimony the incident occurred on a grassy area.  

         Following the trial court's denial of his post-trial

motion, defendant filed a notice of appeal.  On appeal, defendant

first contends the uncontradicted evidence failed to establish he

was carrying a concealed weapon.  

         Section 24-1(a)(4) of the Criminal Code of 1961 (Code)

provides the following:

              "(a)  A person commits the offense of

         unlawful use of weapons when he knowingly:

                                  * * *

                   (4)  Carries or possesses ***

              concealed on or about his person

              except when on his land or in his

              own abode or fixed place of busi-

              ness any pistol, revolver, stun gun

              or taser or other firearm[.]"  720

              ILCS 5/24-1(a)(4) (West 1994).

The statute requires only that the weapon be concealed from

ordinary observation, not that it be carried in a manner giving

no notice of its presence.  People v. Gokey, 57 Ill. 2d 433, 437,

312 N.E.2d 637, 639 (1974), citing People v. Euctice, 371 Ill.

159, 162, 20 N.E.2d 83, 85 (1939).  Given the circumstances of

the case, whether defendant's weapon was concealed from ordinary

observation is an interesting question.  Even though it was dark,

Darvin noticed a substantial portion of the handgun protruding

from defendant's waistband and immediately recognized it as a

handgun from 7 to 10 feet away.  It is a question we need not

resolve, because the State failed to prove the requisite elements

of the unlawful use of weapons offense beyond a reasonable doubt.

         Defendant cites People v. Anderson, 117 Ill. App. 3d

806, 454 N.E.2d 34 (1983), and argues the State had the burden of

negating the exceptions within section 24-1(a)(4) of the Code.

The State, in its brief, apparently contends defendant had the

burden:

         "[T]here was no need for the State to prove

         that the defendant was not the owner of the

         apartment complex or the land.  Nor was there

         any evidence suggesting that the defendant

         was conducting business on the front lawn

         when the incident occurred, thus dismissing

         the need to present such evidence at trial."

         (Emphasis added.)  

We agree with the first district view stated in Anderson and

People v. Chmilenko, 44 Ill. App. 3d 1060, 1062, 358 N.E.2d 1247,

1249 (1976):  the exceptions in section 24-1(a)(4) of the Code

are a part of the substantive definition of the offense and are

elements that must be negated by the State beyond a reasonable

doubt in order to sustain defendant's unlawful use of weapons

conviction.  The issues instruction for the offense sets forth

the exceptions as the second point to be proved as the offense

was charged.  See Illinois Pattern Jury Instructions, Criminal,

No. 18.02, at 10 (3d ed. 1992).

         Defendant argues the record shows the State made no

effort to negate the statutory exceptions.  The State may meet

its burden of proof through reasonable inferences from the

evidence presented.  See, e.g., People v. Navarrete, 258 Ill.

App. 3d 39, 44, 629 N.E.2d 742, 745 (1994) (on a reasonable doubt

challenge the first district found the prosecution met its

burden, where an officer testified his investigation revealed

defendant's address was not 1802 South Allport Street (thus

establishing defendant was not in his own abode) and defendant

was unemployed (precluding any possibility he was at his fixed

place of business); the court, however, made no express finding

defendant was not on his own land); People v. Proctor, 85 Ill.

App. 3d 190, 196, 406 N.E.2d 570, 574-75 (1980) (third district

stated "defendant testified that he lived in West Peoria and

worked as a maintenance person for King's Park Mobile Estates.

It *** seems to be a reasonable inference that the defendant was

not the owner of the 801 Club").  

         In this case, the record shows defendant lived in the

apartment building on which property the incident occurred, and

the apartment building had eight apartments.  The record also

shows the State cited People v. Wilson, 29 Ill. App. 3d 1033,

1036, 332 N.E.2d 6, 9 (1975), which found "[p]ublic areas in an

apartment building to which tenants and invitees have access are

not the 'abode' of any tenant."  

         There is nothing in the record indicating the land is

publicly owned.  The trial court must have relied upon Wilson and

Darvin's testimony that the area upon which the argument occurred

is a common area used by tenants and invitees to conclude the

State negated the "on his land" exception.  In Wilson, however,

the first district labeled areas of apartment buildings as public

for the purpose of negating the "abode" exception.  Wilson, 29

Ill. App. 3d at 1036, 332 N.E.2d at 9 (and cases cited therein).

Nothing on the record justifies the trial court's apparent

conclusion an area of an apartment deemed public for the purpose

of negating the "abode" exception should also be deemed publicly

owned for the purpose of negating the "on his land" exception.  

         Although it is not unreasonable for the State and the

trial court to assume defendant did not own the apartment

complex, allowing the court to draw an inference from that

assumption has the effect of turning the statute's exception into

a defense.  This would improperly shift the burden of proof to

defendant.  Although it is probable defendant did not own the

land, we find the evidence is not sufficient to negate that

exception, a requisite element of the offense, beyond a

reasonable doubt.  We disagree with such cases as Navarrete and

Proctor insofar as they permit the trier of fact to infer the

negation of this element from the absence of evidence on it.  We

thus reverse defendant's unlawful use of weapons conviction.

         Reversed.

         McCULLOUGH and GREEN, JJ., concur.