People v. Wise , 2019 IL App (3d) 170252 ( 2019 )

2019 IL App (3d) 170252Opinion filed September 18, 2019
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2019
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 14th Judicial Circuit,
) Henry County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-17-0252
v. ) Circuit No. 15-CF-170
)
CHARLES P. WISE, ) The Honorable
) Carol M. Pentuic,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
JUSTICE McDADE delivered the judgment of the court, with opinion.
Justice O’Brien concurred in the judgment and opinion.
Justice Carter dissented, with opinion.
____________________________________________________________________________
OPINION
¶1 Defendant was charged with several offenses and, pertinent to this case, was found guilty
of unlawful possession of a weapon by a felon. The trial court based its verdict on testimony that
defendant was aware that the gun was in the vehicle and that, at some point, defendant was
seated near the firearm. On appeal, defendant argued that the State failed to prove beyond a
reasonable doubt that the firearm was “on or about his person” as required by the offense
charged. We agree and vacate defendant’s conviction.
¶2 I. BACKGROUND
¶3 On June 18, 2015, defendant Charles Wise was charged with unlawful possession of a
weapon by a felon under section 24-1.1(a) of the Criminal Code of 2012 (Criminal Code) (720
ILCS 5/24-1.1(a) (West 2014)) and unlawful possession of a controlled substance under section
402(c) of the Criminal Code (720 ILCS 570/402(c) (West 2014)). He was also charged with an
open alcohol container violation and with a speeding violation. On June 19, 2015, Wise posted
bond and was released from custody. A bench trial commenced in March 2016. The State
introduced into evidence a certified copy of Wise’s prior Iowa felony conviction of burglary.
¶4 The State also presented Illinois State Police Trooper Edwin Shamblin, who testified as
follows. On June 18, 2015, he pulled over a 2005 Dodge Caravan minivan for speeding on I-74
in Henry County, Illinois. The inside of the van consisted of three rows of seats and a rear cargo
area. The first row had two “bucket” seats, and the second and third rows had bench seating. At
the time of the stop, Wise was in the driver’s seat, Darnell Montgomery was in the passenger
seat, and Jerry Horne was in the third row on the passenger side. After he smelled a “strong odor
of burnt cannabis,” Shamblin decided to search the vehicle and discovered two black gloves
lying in the third seating row near Horne. Shamblin moved one glove and dislodged a Derringer
.357 firearm, which had been inside of it. The gun was completely obscured from view before
Shamblin moved the glove. Shamblin believed that the gun was located about 5 to 10 feet away
from the driver’s seat where Wise was sitting, and he did not think it was possible for Wise to
reach the gun from the driver’s seat. Shamblin arrested Wise and read him Miranda warnings.
See Miranda v. Arizona, 384 U.S. 436 (1966). Shamblin further testified that Wise agreed to
speak with him and told Shamblin that he knew the firearm was in the van but it was not his; it
belonged to his friend Wade Burrell, who sometimes borrowed the van. Burrell purchased the
gun at Gander Mountain in Cedar Rapids, Iowa, about three months earlier.
2
¶5 The State rested, and the defense presented several witnesses to testify. Burrell testified
that he was the owner of the .357 Derringer firearm found inside the van on the night in question
and he had legally purchased the gun at Gander Mountain for $400. He borrowed the van from
Wise’s brother, Johnny, on May 20, 2015, to run some errands and took the gun with him for his
protection. Although he had a valid permit to purchase weapons, he did not have a concealed
carry permit. Because of this, he was advised by a Gander Mountain store employee to store the
gun as far away from him as possible when traveling with the gun so that it was out of reach.
When he borrowed the van on May 20, he placed the gun inside one of the gloves lying in the
van and laid the glove in the back seat of the van so that it would be out of reach and out of sight
while he was driving. He returned the van to Johnny the same day but forgot to take the gun from
the van. Burrell never retrieved the gun and forgot that he left the gun in the van. The receipt for
the gun purchase was admitted into evidence.
¶6 Wise testified that he had taken a trip to Louisville, Kentucky, and was returning to Cedar
Rapids, Iowa, when he was stopped by the police for speeding. He was driving a van he had
borrowed from his brother, Johnny. Horne drove for about 10 minutes into the trip, and Wise
drove the remainder of the trip. Wise stated that he did not know that the gun was in the van, and
he denied telling Shamblin that he knew the gun was in the van. Wise was physically disabled,
and his health issues included diabetes, high blood pressure, chronic back pain, and depression.
He took multiple medications for his conditions.
¶7 Montgomery testified that he, Wise, and Horne were leaving Louisville and traveling to
Cedar Rapids on June 18. Horne drove the first 20 miles, and thereafter, Wise drove the
remainder of the trip. Montgomery testified that, when the police stopped the van, he was seated
3
in the passenger seat, Horne was seated in the back seat, and Wise was in the driver’s seat
driving the van.
¶8 The trial court found Wise guilty of speeding and unlawful possession of a weapon by a
felon and acquitted him of the remaining charges. The basis for the guilty verdict on the gun
charge was unlawful possession of a weapon by a felon. The trial court based its verdict on
Shamblin’s testimony that Wise knew the gun was in the van and the witnesses’ testimony that
Wise had sat in the back seat near the gun for 10-20 minutes at the beginning of the trip. The
court did not believe Burrell’s testimony that he mistakenly left the gun in the van and forgot
about it for two weeks. The trial court sentenced Wise to two years imprisonment and one year
of mandatory supervised release on the unlawful possession of a weapon by a felon conviction.
In the court’s written order, Wise received credit for one day of presentence incarceration. Wise
appealed his conviction.
¶9 II. ANALYSIS
¶ 10 A. Sufficiency of the Evidence
¶ 11 Wise argues that the State failed to prove beyond a reasonable doubt that the gun was “on
or about his person” as required under the unlawful possession of a weapon by a felon statute.
Wise claims that Illinois courts have established that a weapon is “on or about” a person when
the weapon is within arm’s reach of the accused and that, in this case, the gun was not within his
reach when he was pulled over in Illinois. Wise also argues that his interpretation is supported by
the legislature’s decision to exclude the “on or about his person” language from similar
provisions that exclude general unlawful possession, actual and constructive, of firearms.
¶ 12 The State argues that the “on or about his person” language in section 24-1.1(a) is not
limited to possession within the accused’s reach but expands the scope of possession where the
4
accused has possession of a firearm in an area that is under his exclusive control. The State
alleges that Wise’s interpretation renders the “about his person” language superfluous because it
essentially carries the same meaning as “on his person.”
¶ 13 A criminal conviction will not be set aside unless the evidence is so improbable and
unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Collins, 106
Ill. 2d 237, 261 (1985). When presented with a challenge to the sufficiency of the evidence, it is
not the function of this court to retry the defendant. Id. The relevant question is 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. Id.Determinations of witness credibility, the weight given to the testimony, and the reasonable
inferences to be drawn from the evidence are the responsibility of the trier of fact, not the
reviewing court. People v. Pollard, 2015 IL App (3d) 130467, ¶ 26.
¶ 14 Section 24-1.1(a) of the Criminal Code states, “It is unlawful for a person to knowingly
possess on or about his person or on his land or in his own abode or fixed place of business any
*** firearm *** if the person has been convicted of a felony ***.” 720 ILCS 5/24-1.1(a) (West
2014).
¶ 15 The parties dispute the meaning of “on or about his person” under section 24-1.1(a). Our
supreme court has not construed the meaning of this phrase under section 24-1.1(a); however,
several districts of the Illinois Appellate Court have interpreted it. The court in People v. Rangel,
163 Ill. App. 3d 730 (1987), held that a gun found in a vehicle, rather than on the defendant’s
body, could constitute being “on or about his person” under section 24-1.1. In Rangel, the police
responded to a call from a woman stating that the defendant had threatened to kill her with his
gun. Id. at 732. As the police were searching the apartment building where the incident occurred,
5
one of the officers observed the defendant exiting a vehicle and walking toward the building. Id.
at 733. The officer stopped the defendant in the building hallway and arrested him for aggravated
assault. Id. Afterward, the officer walked over to defendant’s vehicle and retrieved a loaded .22-
caliber pistol lying on the floor of the driver’s side of the vehicle. Id. Defendant was
subsequently charged and convicted of unlawful use of a weapon by a felon under section 24-
1.1. Id. at 732. On appeal, defendant argued that the State failed to prove beyond a reasonable
doubt that the weapon was recovered “on or about his person.” Id. at 738. The First District
rejected this argument, holding that “the recovery of the gun from defendant’s car rather than
from his person, does not, in itself, exclude him from the provisions of the statute under which he
was charged.” Id. at 739. The court explained that the definitive question is whether the
defendant knowingly possessed the weapon and determined that, based on the evidence,
defendant was properly found guilty under section 24-1.1. Id.
¶ 16 In People v. Clodfelder, 172 Ill. App. 3d 1030, 1032 (1988), the police stopped a vehicle
driven by the defendant because it did not have license plates. The police searched the vehicle
and discovered a .22-caliber rifle directly behind the back seat on the driver’s side. Id. Defendant
was subsequently convicted of unlawful use of a weapon by a felon under section 24-1.1. Id. at
1031. On appeal, defendant argued that the State failed to prove that the gun was “on or about his
person” because the gun was too remote from his body. Id. at 1032. The Fourth District found
that defendant constructively possessed the gun “about his person” because (1) he knew where it
was placed, (2) he was the owner with exclusive possession of the vehicle, and (3) he was the
owner of the gun. Id. at 1034. The court distinguished its case from People v. Liss, 406 Ill. 419(1950), in which the supreme court affirmed defendant’s conviction of carrying concealed on or
about his person a firearm because an element of carrying a weapon concealed on or about his
6
person was accessibility of the weapon to the accused and that this element was separate from
the element that the weapon was on or about the accused. Clodfelder, 172 Ill. App. 3d at 1033. It
also reasoned that, regardless of the accessibility element, the Liss court placed more weight on
the lack of evidence showing the defendant’s possession because he did not have knowledge of
the gun’s presence and he did not have control over the area where the gun was found. Id. at
1033-34.
¶ 17 In People v. Woodworth, 187 Ill. App. 3d 44, 45 (1989), the defendant was stopped for
driving erratically. When the defendant exited the vehicle, the officer noticed a handgun sticking
out from under the driver’s seat. Id. Defendant was later convicted of unlawful possession of a
weapon by a felon. Id. On appeal, defendant argued that the State failed to prove beyond a
reasonable doubt that he had a gun “on or about his person” because the gun was under the
driver’s seat. Id. at 46. The Fifth District explained that “ ‘possessing on or about one’s person’
is no different than ‘having in one’s possession’ or simply ‘possessing’ ” and that such
determination depends on whether the weapon is “within one’s reach.” Id. The court held that the
location of the firearm was “[c]learly” within defendant’s reach and, therefore, the State proved
that the gun was “on or about his person.” Id.
¶ 18 In People v. Jastrzemski, 196 Ill. App. 3d 1037, 1038 (1990), the defendant was stopped
for driving with a broken brake light. The officer checked defendant’s driver’s license and
discovered that his license was suspended. Id. at 1038-39. The officer placed defendant under
arrest and searched his vehicle. Id. at 1039. During the search, he found a loaded revolver under
the hood of the car. Id. Ultimately, defendant was convicted of unlawful use of a weapon by a
felon. Id. The First District held that the location of the gun, along with the evidence that he
owned the car and knew where the gun was hidden, was sufficient to show that the weapon was
7
on or about the defendant’s person. Id. Analogizing its case to the court’s rationale in Clodfelder,
the First District determined that a gun need not be immediately accessible to show that a firearm
was “on or about” the accused’s person. Id. at 1039-40. It held that the location of the gun, along
with the evidence that he owned the vehicle and knew where the gun was hidden, was sufficient
to show that the weapon was on or about the defendant’s person. Id. at 1040.
¶ 19 Reviewing the cases above, we decline to follow their interpretation of “on or about his
person” for three reasons. First, “possession” and “on or about his person” have separate
meanings. The court in Woodworth held that “on or about his person” equates to having in one’s
possession or possessing and interprets the phrase as if it is synonymous with the word
“possess.” This interpretation renders the phrase “on or about his person” meaningless. We are
required to construe a statute so that no part of it is rendered meaningless or superfluous. People
v. Jones, 214 Ill. 2d 187, 193 (2005). The legislature promulgated section 24-1.1(a) to state that it
is unlawful for a person to knowingly “possess on or about his person *** any *** firearm if the
person has been convicted of a felony.” The word “possess” and the term “on or about his
person” are distinctly included in the statute and should each be given its own meaning.
¶ 20 Second, the statutory language does not support a conclusion that the legislature intended
for section 24-1.1 to encompass an entire vehicle. Nonetheless, the Jastrzemski court held that a
firearm found under the hood of the defendant’s vehicle, which is neither on the defendant’s
person nor within his reach and is not reasonably accessible to the defendant, satisfied the
statutory requirement. We disagree with this interpretation of section 24-1.1(a). The rationale
reads language into section 24-1.1(a) that is simply not there. The legislature specifically listed
the places where a felon is culpably in possession of a firearm, including “on or about his
person,” “on his land,” “in his abode,” and in his “fixed placed of business.” Notably, there is no
8
mention of a vehicle of any kind in section 24-1.1(a). If the legislature had intended to impose
liability for possession anywhere “in his vehicle,” it would have included that language in the
statute. It did not, and we cannot rewrite a statute to add provisions or limitations the legislature
did not include. Relf v. Shatayeva, 2013 IL 114925, ¶ 29. We, therefore, limit our focus to
whether the firearm was “on or about” Wise’s person rather than whether the firearm was located
in the vehicle.
¶ 21 Third, “on or about his person” should be construed in the same way throughout the
Criminal Code. Where a word is used in different sections of the same statute, the presumption is
that the word is used with the same meaning throughout the statute, unless a contrary legislative
intent is clearly expressed. People v. Maggette, 195 Ill. 2d 336, 349 (2001). Construing
predecessor provisions of a similar section under the Criminal Code, section 24-1, the Illinois
Supreme Court has defined “on or about his person” as meaning the firearm is on the person or
“in such close proximity that it can be readily used as though on the person.” See Liss, 406 Ill. at
422; People v. Niemoth, 322 Ill. 51, 52 (1926) (“ ‘[a]bout his person’ means sufficiently close to
the person to be readily accessible for immediate use”); see also 720 ILCS 5/24-1 (West 2014).
The Criminal Code does not require or even suggest that “on or about his person” under section
24-1.1 be given a different meaning from other sections under the Criminal Code. We find no
reason to give the phrase a different interpretation from the one established by our supreme
court.
¶ 22 Given our construction of the statute, the evidence here shows that the gun was not on or
about Wise’s person as required by section 24-1.1 when his vehicle was searched. Wise was
driving the minivan when Trooper Shamblin stopped and searched the vehicle. During the
search, Shamblin discovered a .357 Derringer hidden inside a glove. The firearm was located
9
two rows or, as Shamblin testified, about 5 or 10 feet behind the driver’s seat. Shamblin also
testified that he did not believe it was possible for Wise to reach over and grab the gun from the
driver’s seat. Thus, at the time of the stop the gun was not “on or about [the] person” of the
defendant.
¶ 23 There was testimony from Montgomery that, for a very short time at the beginning of the
trip from Louisville, Horne was driving and Wise was sitting in the back seat. This testimony
indicates that, in the earliest stage of the drive, the firearm may have been “on or about” Wise’s
person. Illinois has jurisdiction over a criminal case only when the offense is committed wholly
or partly within the state. 720 ILCS 5/1-5(a)(1) (West 2014). An offense is committed partly
within the state when conduct that is an element of the offense occurs within the State. Id. § 1-
5(b). Wise and Montgomery testified that Horne was driving for about 10 to 20 minutes before
Wise began to drive, and the evidence appears clear that the 10 or 20 minutes Wise was in the
back seat occurred in Kentucky or Indiana, not Illinois. Although a finding of inaccessibility
does not prevent a finding of constructive possession, it does prevent a finding of guilt. People v.
Cook, 46 Ill. App. 3d 511, 515 (1977).
¶ 24 For the foregoing reasons, we find that the State failed to prove Wise guilty beyond a
reasonable doubt of unlawful possession of a weapon by a felon. Accordingly, we vacate his
conviction. We need not address Wise’s issue concerning his credit for time served, as this issue
is dispositive of this appeal.
¶ 25 CONCLUSION
¶ 26 The judgment of the circuit court of Henry County is vacated.
¶ 27 Vacated.
¶ 28 JUSTICE CARTER, dissenting:
10
¶ 29 I respectfully dissent from the majority’s decision in the present case. I would find that
the evidence was sufficient to prove defendant guilty beyond a reasonable doubt of unlawful
possession of a weapon by a felon and would, therefore, affirm defendant’s conviction of that
offense. In its analysis in this case, the majority goes through a litany of cases that are contrary to
the conclusion that the majority eventually reaches—that the State failed to establish that
defendant possessed the gun on or about his person as required for a conviction under section 24-
1.1(a) of the Criminal Code. Supra ¶¶ 15-22. Ultimately, the majority elects not to follow those
cases. Supra ¶ 19. I disagree with the majority’s decision in that regard and believe that we
should follow the cases that the majority has set forth. In my opinion, and contrary to the
majority’s decision, the State does not have to prove that a gun found in a vehicle is immediately
or readily accessible to a defendant to obtain a conviction under section 24-1.1(a) of the Criminal
Code. See Jastrzemski, 196 Ill. App. 3d at 1039-40 (affirming a defendant’s conviction of
unlawful use of a weapon by a felon where a gun was found under the hood of a car the
defendant was driving); Clodfelder, 172 Ill. App. 3d at 1032-34 (upholding the defendant’s
conviction of unlawful use of a weapon by a felon where a gun was found in the rear cargo area
of a station wagon that the defendant was driving). Such a conclusion is consistent with the
purpose of the statute—to protect the public safety by prohibiting the possession of weapons by
felons. See Jastrzemski, 196 Ill. App. 3d at 1040.
¶ 30 Applying a typical constructive possession analysis in this case, I would find that the
State’s evidence was sufficient to prove that defendant possessed the gun in question on or about
his person. See Rangel, 163 Ill. App. 3d at 739-40 (upholding a defendant’s conviction of
unlawful use of a weapon by a felon where a gun was found on the driver’s side floor of the
vehicle the defendant had been driving); Jastrzemski, 196 Ill. App. 3d at 1039-40; Clodfelder,
11
172 Ill. App. 3d at 1032-34. The evidence showed that the gun was found inside a glove located
on the third-row seat of the minivan defendant was driving and was approximately 5 to 10 feet
away from the driver’s seat of the van. Although defendant was allegedly not the owner of the
van, he had been driving the van for some time, had control over the van, and admitted
knowledge of the presence of the gun. It was for the trial court, as the trier of fact, to determine
whether it believed the testimony of the alleged owner of the gun—that he had taken the gun into
the vehicle with him for protection while he was running errands about a month earlier and had
forgotten the gun in the vehicle. See Pollard, 2015 IL App (3d) 130467, ¶ 26. In this particular
case, the trial court found that the alleged owner’s testimony was not believable and ultimately
concluded that defendant was in possession of the gun. I would affirm the trial court’s ruling in
that regard.
12
No. 3-17-0252
Cite as: People v. Wise, 2019 IL App (3d) 170252Decision Under Review: Appeal from the Circuit Court of Henry County, No. 15-CF-170;
the Hon. Carol M. Pentuic, Judge, presiding.
Attorneys James E. Chadd, Peter A. Carusona, and Steven Varel, of State
for Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:
Attorneys Matthew Schutte, State’s Attorney, of Cambridge (Patrick
for Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s
Appellee: Attorneys Appellate Prosecutor’s Office, of counsel), for the
People.
13