## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Wright, 2013 IL App (1st) 111803

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. DANI ELWR I GHT, De fenda nt-Appellant.

District & N o. First District, Second D ivision Docke t No. 1-11-1803

Filed May 7, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for ag g ravated unlawful use of a wea pon arising from an incident wher ein defe ndant and another man ran from the police as a

sear ch war

rant was being executed and they wer e appre hended afte r they fell do wn s o m e stairs and two wea pons wer e found near the men, defe ndant’s conviction was rever sed on the gro u n d that the S tate failed
to prove that defe ndant knowing ly possessed the wea pon at tributed to him, since there was no testimony that defe ndant had the wea pon in his hand or was making any motion sug g esting that he was disposing of the

wea pon, three other individuals wer e present, and no phy sical evidence linked defe ndant to the wea pon.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 10-CR-12584 (02); the Hon. Diane Cannon, J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l Michae l J

. Pell etier, Alan D. Goldberg
, and Peter Sgr o, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Peter Maltese , Assistant St ate’ s Attorney s, of counse l), for the People.

Panel PRES I DI NG J USTI CE HARRI S delivere d the judgme nt of the court, with opinion.
J ustices Quinn and Connors c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 Def

endant, Daniel Wright, was found guilty afte r a bench trial of one count of ag g ravated unlawful use of a w eapon. 720 I L CS 5/24-1.6 (West 2010). On appea l, at i ssue i s whether the State prove d all of the e lements of the of fense of ag g ravated unlawf ul use of a w eapon beyond a rea sonable doubt. We hold the State failed to satisfy i ts burden of proving defe ndant guilty beyond a rea sonable doubt beca use it did not prove that defe ndant knowing ly possessed the wea p on that was attributed to him. There fore
, defe ndant’s conviction must be reve rsed.

¶ 2 J URI SDI CTI ON ¶ 3 The circ uit court sentenc ed defe ndant on May 18, 2011. Def endant timely filed his notice of appeal o n J u ne 7, 2011. Acc ording ly
, this court has jurisdiction pursuant to article VI
, section 6, o f t h e I llinois Constitution and I llinois Supreme Court Rules 603 and 606,
g overning appea ls from a final judgme nt of conviction in a criminal case enter ed below. I ll. Const. 1970, art. VI , § 6; I ll. S. C t. Rs. 603, 606 (eff. F eb. 6, 2013).

¶ 4 BA CKGROUND ¶ 5 Def

endant was char g ed by information wit h two counts of aggravated unl aw fu l u se of

a wea pon. Under both counts, the State alleg ed defe ndant “knowing ly car ried on or about his
person, a firea

rm, at a time when he was not on his own l and or i n his own abode or fix ed place of business.” Under the first count, the State further alleg ed that “the firea rm possessed

was uncase d, loaded and immediately acc essible *** in v i o l ati on of chapte r 720, Act 5, Section 24-1.6(a )(1) /(3) (A) of the I llinois Compil ed Statutes 1992 as amende d.” In the

s ec o n d co u n t, the State alleg ed defe ndant “wa s under twenty one y ear s of ag e and in possession of a handgun, in violation of chapte r 720 act 5 section 24-1.6(a )(1) / (3) (I ) of the I llinois Compil ed Statutes 1992 as amende d.” De fenda nt w aived his r ight to a jury and the

case proce eded to a

bench tr ial.

-2-¶ 6 The State called three witnesses: Offic ers Gena
, L aster, and McNamara from the Cook County sheriff

’s police. The office rs wer e part of a 10-per son team executing a sear ch

war rant at 4 2 E as t 9 1 st Street in Chicag o, I llinois
, on J une 11, 2010, at about 8:15 in the evening

. ¶ 7 Offic er G ena w as the fir st of fice r to e nter the residenc e. He descr ibed the building a s a “sing le family attache d to another s i n g le family *** like a duplex.” The front door was unlocked. A serg eant from the team announce d their office
, but the door was not answe red. When he en t er ed the residenc e, he noticed two people about 10 to 12 fee t awa y , who t hen promptly ran. Offic er Gena pursued the two people, who eventua lly went down the baseme nt stairs. Offic er Gena then observe d Quentin Mi t ch el l fall over defe ndant. Offic er Gena testified that def

endant c ame to a r est “just to the rig ht of Quentin ag ainst the wall coming down.” He did not see de fenda nt’s hands whe n defe ndant was r unning or fallingdown the steps. When Mitchell and defe ndant came to a rest, Offic er Gena observe d a handgun “just
to the l eft of” and “with i n i nches of Mitchell’s left hand.” Offic er Gena y elled, “gun, gun,
gun.” At this time, Office r McNa mara was directly behind hi m, wea pon drawn, indicating to Mitche ll a

nd defe ndant not to move. Three more office rs came down into the baseme nt. Offic er Gena rec overe d t h e handgun near Mitchell’s hand, a “P89 semi-automatic nine milli meter.” M o re o ff

i cer s then came down to the baseme nt. Offic er Gena testified that Offic er Za ch S mith announce d there was anoth er gu n prese nt. He observed Office r L aster

rec over the gun and hand it to Offic er McNamar a, who clea red the gun of its ammunition. The sec ond gun was a

“Colt 45,” which wa s attributed to defe ndant. ¶ 8 At the police station, defe ndant confirme d to Offic er Gena that he lived at 8127 Honore in Chicag o, I llinois

. Offic er Gena also confirme d the fo l l o wi n g information reg arding the residenc e at 42 East 91s t Street: that defe ndant did not live or work ther e; that it was not a leg itimate business; and that defe ndant did no t o wn t he land. Offic er Gena further deter mined that defe ndant was under the ag e of 21. At the pol ice station, five bullets were retrie ved fr om the Colt 45 handgun. ¶ 9 On cross-e x amination, Offic er Gena admitted that at no time did he s ee a we ap o n i n defe ndant’s hands, nor did he see defe ndant make any motion that would indicate or sug g est that defe ndant discarde d a wea pon. Be sides Mitchell and defe ndant, three other people wer e in the baseme nt when t h e s ear ch war rant was executed. Offic er Gena did not see how or when the other three people enter ed the baseme nt. The other three people wer e d etained briefly befor e being rele ased. Offic er Gena clar ified that he did not see the gun attributed to defe ndant until Offic er L aster handed it to Offic er McNamara

. When asked, “you, yourself

n ev er s aw t he wea

pon in proxi mity to [defendant],” Offic er Gena answe red “cor rec t.” He could not a

nswer whether any fing erpr ints wer e found on the gun beca use he “did not g et a repor t back” from the labor atory from whe re the gun attributed to defe ndant was se nt. ¶ 10 Offic er L aster enter ed the residenc e as part of the “entr y team.” Upon entry , he first went to clea r t he upst airs of the hous e. He hear d there was a gun downstairs, so he im mediately
proce eded to t h e b asement. Offic ers Smit h and Ba rksdale also went to the baseme nt with him. As Offic er L aster proce eded to the baseme nt, Offic er Smith was in front of him. Offic er L aster saw two people, one of whom was defe ndant, on the floor ag ainst the wal l in the baseme nt. Offic er L aster testified that “[a]s I came down t he st eps, Isaw a gun protruding

-3-from underneath the Defenda nt.” The gun was pro t ru d i n g from the “ce nter mass” or t orso

are a of defe ndant. Offic er L aster noticed the “butt end of the firea rm.” Def endant was on his stomach at this time. Offic er L aster testified defe ndant’s “hands wer e within the proxi mity of his torso.” The gun was “inche s” from defe ndant’s hands. He saw Offic er Smith step on defe ndant’s hand and y ell out that there was a gun. Offic er L aster testified he place d his hand

on defe ndant’s torso and remove d the wea pon. As he was doing so, Offic er L aster “kind of pushed [defendant] to the side and *** remove d the wea pon.” He handed Offic er McNa mara the wea pon befor e handcuf

fing defe ndant. Offic er L aster testified that “[t] here was a throw
rug that was folded up at the bottom of the landing .” When asked how the rug was situated in relationship to the gun, Office L aster expl ained that there was “the floor, throw r ug , the
gun, then the Def

endant on top of it.” He testified that he rec overe d the gun from on top of the throw rug , but unde r defe ndant’s torso. Offic er L aster descr ibed the baseme nt a rea as a “laundr y are a” that had “other

clutter a nd what not.” ¶ 11 On cross-e x amination, Offic er L aster clar ified t h at althoug h he saw the gun “inche s” from defe ndant’s hand, he never actua lly saw the gu n i n d ef en d an t’s hand nor did he see defe ndant make any motion sug g esting that he was disposing of the gun. After Offic er L aster

re covered the wea

pon, he handcuf

fed defe ndant. Offic er L aster further testified that t h re e other subjects wer e in the baseme nt are a at the time of the arr est. On re- cross-e x amination, Offic er L aster testified he did not see defe ndant mak e an y ef fo rt s to retrie ve the gun. He clar ified that he did not see how defe ndant ended up on the floor beca use when he first saw defe ndant, def

endant wa s alrea dy

on the floor. ¶ 12 Offic er McNamara , of the Cook County sheriff ’s police g ang unit, testified he was part of the entry team executing the sear ch war rant. He also observe d defe ndant and Mitchell run down to the baseme nt of the residenc e and fall. Three other individuals wer e in the baseme nt

are a. He saw Offic er L aster rec over a handgun from “the fl o o r s lightly underne ath the Def endant.” The gun was pulled from defe ndant’s waist are a. When asked whether he could

see th e gu n fr om wher e he was standing
, Offic er McNamara answe red “[a]s it was being picked up, y es.” He knew the gun was underne ath defe ndant’s body beca use defe ndant had been “instructed to move a littl e as the gun was rec overe d.” When defe ndant moved, Offic er McNamara saw Offic er L ast er re co v er the gun. He clea red the gun afte r Offic er L aster handed it to him. On cross-e x amination, Offic er McNamar a testified he never saw the gun in defe ndant’s hand, nor did he see defe ndant make any moves sug g esting he was discarding a weapon. He first saw t h e wea pon as defendant was laying down on the floor. He did not see the gun on defe ndant when de fenda nt ran downstair s. ¶ 13 T h e S t at e then rested. Def endant made a motion for a direc ted finding of not guilty
arguing the State failed to prove he knowing ly possessed the gun, proving only that the gun was found in c lose proxim ity to him. The circuit cour

t denied the motion. ¶ 14 Def

endant testified on his own behalf

. He admitted that he lived at 8217 South Honore in Chicag o, I llinois

. At the time of his arr est, howeve r, defe ndant was at his uncle’ s, Quintin Mitchell’s, house to see cousins of his who wer e visiti ng

. He was sitti ng on the porch befor e he decide d to g o inside to g et a cig are tte. Whil e inside, the police came inside the residenc e. Def endant “ panicke d and ran.” He then ra n down some stairs and stoppe d. The police told him to g et on the g round. He g ot on his knees and put his hands up. Def endant testified that

-4-“two other guy s” and his uncle wer e in front of him when he was running

. Def endant stated that “[t] he poli ce then pushed m e down the s tairs on top of m y uncle and I fell all the way down to the bottom.” He lande d on his stomach. Def endant de monstrated for

the cour t the position he ended up in on the floor. Once on the floor, defe ndant t estified that the pol ice: “handc uffe d my

uncle, and then t hey

–a black man came down and said I had a gun. Three office rs ran toward me. One stepped on my back. The other one picked up the gun and then they handcuf

fed me.” The gun was taken from the rig ht side of his body

. His hands wer e in the air. D efe ndant denied e ver ha ving a gun and testi fied that he told the police that he did
not have a gun. He did not see a gun when he first fell on the floor. He testified that no one stepped on his hands, but an of fice r did step on his back. ¶ 15 On cross-e x amination, defe ndant testified that he fell on top of his uncle in the baseme nt afte r being pushed by the police. Def endant admitted that his uncle’ s residenc e is not a b usiness, but his uncle’ s home. He further admitted that he did not work at h i s u n cl e’ s residenc e and that he was under the ag e of 21. On redire ct examination, d ef endant denied havinga gun in his waistband. He a lso denied eve r havingrea ched f or his waistband. ¶ 16 Offic er Gena testified on behalf o f d ef en d an t

. T h e m aj o rity of his testimony was substantially simil ar to his ear lier testimony

. He did, howeve r, testify that the gun attributed
t o d ef en d ant “wa s sent to the laboratory ,” but they did not “fing erpr int it” beca use they “didn’t send it for prints.” He denied pushing defe ndant down the stairs to the baseme nt and 1 denied that a

ny of the other

office rs with him pushed anyone down the sta irs. ¶ 17 Def

endant called Offic er Z acha ry S m i t h
, fr o m t h e Cook County sheriff ’s police, to testify

. Offic er Smit h testified that he was part of the team that executed the sear ch war rant at 42 East 91st street. Upon entry to the residenc e, Offic er Smith first saw defe ndant in the baseme nt lying on his stomach on the floor. He did not see a gun in defe ndant’s hand. T he first time he saw defe ndan t ’s h ands, defe ndant’s hands wer e presse d ag ainst the floor. Alth o u gh at first he did not see a gun by defe ndant, he did see a gun. He descr ibed the i n ci d en t as s u ch: “I discovere d–I can’ t tell–I can’ t rec all whether it was a towel or a rug laying on top of hi s rig ht hand. Actually his rig ht hand was partial l y u n d erne ath t hat i tem. I remove d it, and t h at’s when I encounte red the wea pon.” He testified further that the gun

was not under defe ndant’s body

. Def endant’ s hand was not on the gun, bu t i t was near it. Offic er Smit h then stepped on defe ndant’s rig ht hand and y elled out there wa s a gu n

. He stepped on defe n d an t ’s hand as a prec aution. Another office r picked up the gun. Offic er Smit h denied that defe ndant’s hand had been moving befor e he looked under the rug

. After Offic er Smit h remove d the rug , defe ndant was not looking at the gun and did not make any motion for the gun. Def

endant then r ested. ¶ 18 The circ uit court found, based on the evidenc e prese nted an d t h e cr ed i b i l i t y of the witnesses, that the State met its burden of proof beyond a rea sonable doubt. Acc ording ly
, the circ uit court found defe ndant guilty of ag g rava ted unlawful use of a weap o n

. Def endant’ s

Wh en Off

ic er G e n a te st if

ie d for the Sta te he st at ed he cou ld not ans wer whet her any 1 fi ngerpr int s wer e fou nd on the gun bec aus e he “di d not get a re por t bac k” fr om the la bor at ory wher e the gun at tr ibu te d t o de fe nda nt was sen t.

-5-motion for a new trial was denied. After a sentencinghear ing, de fenda nt was sentenced to 18 months of probation. Def endant timely

appea led.

¶ 19 ANALYSI S ¶ 20 Be fore this court, defe ndant argues that the State fa i l ed t o p rove that he knowing ly possessed a gun. Def

endant char acte rizes the State’s evidenc e as such: that defe ndant and another man fell down a flig ht of stairs at a residenc e that he did not live in and that he was found lying on top of or near a gun. Def endant points out that none of the law enfor ceme nt office rs saw him with a gun or saw him make any ty pe of motion that would sug g est he was discarding a gun, and that no phy sical evidenc e tied him to the gun. Due to the State’s failure
to prove he knowing ly possessed a gun, defe ndant argues the State failed to satisfy its burden of proving him guilty b ey o n d a rea sonable doubt as to eac h element of the offe nse of
ag g ravated unlawf

ul use of a w eapon. ¶ 21 In response , the State argues that a revie w of the evidenc e and the rea sonable infere nces drawn from it shows that it met its burden of proving defe ndant guilty beyond a rea sonable d o ub t

. T he State does not argue that defe ndant had actua l possession of the gun; rathe r, it
argues he had constructive possession of it. Acc ording to the State, rea sonable infere nces of defe ndant’s guilt can be made from the evidenc e showing wher e the gun was found and from defe ndant’s initial attempt at eludingthe police by runninginto the basement. ¶ 22 I n re p ly
, defe ndant argues the testimony only established that he was near or on a gun afte r he fell down the stairs and that mere proxi mity to the wea pon does not establish that he knowing ly possessed the gun. He disputes the State’s argument that his guilt can be inferr ed from his flig ht. Def

endant char acte rizes his flig ht as at most an incriminating circ umstance, not a mater ial element of

proof. ¶ 23 When revie wing whether the evidence p re s en t ed was sufficie nt to sustain a cr iminal conviction, we must deter mine “ ‘whe ther, af

t er v iewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the c rime beyond a re asonable doubt.’ ” (Emphasis in or igina l.) People v . Cunningham
, 2 1 2 I l l

. 2d 274, 278 (2004) (quoting Jack son v. Virginia
, 443 U.S. 307, 319 (1979))

. Fur thermore
, we will not retry the defe ndant nor will we substitut e our judgme nt for that of the trier of fac t reg arding the weight g iven to or the cre dibilit y of a witness. People v. Ross
, 407 I ll. App. 3d 931, 935 (2011). We must, howeve r, keep in mi n d t h at “the Due Process Clause protec ts the acc used ag ainst conviction except upon proof beyond a rea sonable doubt of ever y fac t ne cessa

ry to c onstitut e the crime for which he is c harg ed.” In re W inship
, 397 U.S. 358, 364 (1970); People v. Carpenter
, 228 I ll. 2d 250, 264 (2008); see also People v

. Ehlert
, 211 I ll. 2d 192, 213 (2004) (“Simply stated, the fac t that defe ndant is ‘p ro b ab l y guilty ’ does not equa t e wi t h guilt beyond a rea sonable doubt.”). I f, afte r a car eful examination of the evidenc e, we conclude that there was insufficient evidenc e of defe ndant’s
guilt bey ond a re asonable doubt, the conviction must be reve rsed. People v . Smith , 185 I ll. 2d 5 3 2
, 5 4 1 (1999); People v. Hernande z , 312 I ll. App. 3d 1032, 1036 (2000) (“That is, a criminal conviction cannot stand on appea l if the prosec ution’s evidenc e is so weak as to

cre ate a rea sonable doubt as to defe ndant’s guilt.”). Although the trier of fac t is g iven g reat

-6-defe renc e, its deter minations are not conclusive. People v. Ortiz
, 196 I ll. 2d 236, 259 (2001). “Rather
, we will reve rse a conviction wher e the evidenc e is so unrea sonable, improbable or unsatisfac tory

as to justify

a re asonable doubt of defe ndant’s guilt.” Id. ¶ 24 S ec t i o n 2 4 -1

. 6 of the Criminal Code of 1961 addre sses the offe nse of aggrav at ed unlawful use of a wea

pon. 720 I L CS 5/24-1.6 (West 2010). At the time of th e o ff ense, section 24-1.6 pr ovided, in rele vant par t: “(a ) A person commits the offe nse of ag g ravated unlawful use of a wea pon when he or she knowing ly : (1) Carrie s on or about his or her person or in an y v eh i cl e or conce aled on or about his or her person ex cept when on his or her land or in his or her abode, le g al dwelling
, or fix ed place of business, or on the land or in the leg al dwelling of another
person as an invitee with that pe rson’s permission, any pistol, re volver, stun gun or taser or other fir ear

m; or (2) *** a nd (3) One of the followingfac tors is present: (A) the firea

rm possessed was uncase d, l o ad ed and im mediately acc essible at the time of the of

fense ; or * * * (I ) the person possessing the wea pon was under 21 year s of ag e ***.” 720 I L CS 5/ 24-1.6 (a )(1) , (2), ( 3)(A) , (3)( I ) (West 2010). ¶ 25 When, as in the case at bar, the defe ndant is not found to have had actua lly possessed the
gun, the State must prove he constructively possessed the gun. People v. McCarter
, 339 I ll. App

. 3 d 8 7 6
, 879 (2003). “To establish guilt on a theory of constructive possession of a firea rm, the State must prove: (1) that defe ndant h ad knowledg e of the prese nce of the
weapon; and (2) that defe ndant exercised immediate and exclusive control over th e ar ea when the wea

pon was found.” Ross
, 407 I ll. App. 3d at 935. The trier of fac t may rely upon

rea sonable inf

e r e n c e s o f p o s s ession and knowledg e. Id. Circumstantial evidenc e may be used
to prove possession and knowledg e. People v. Bailey
, 333 I ll. App. 3d 888, 891 (2002). The State, howeve r, still mus t present suc h evidenc e. Id. ¶ 26 In this case , we hold the State failed to prove beyond a rea sonable doubt tha t defe ndant knowing ly possessed the gun that was attributed to him. The State prese nted three witnesses,

none of whom saw a gun in defe ndant’s hands or noticed him make any actions that would indicate that defe ndant was discarding a gun. There was no phy s i ca l evidenc e linking defe ndant to the gun. Offic er Gena testified he d id not even see the gun attributed to defe ndant until afte r it was rec overe d. Althou gh Officer L aster and Offic er McNa mara testified the gun was fo u n d u nderne ath defe ndant, neither office r testified that defe ndant made any movements to indicate knowledg e of a wea pon. The “mer e prese nce” of a wea pon is not sufficie nt to prove defe ndant had knowle dg e of the wea pon. Bailey , 333 I ll. App. 3d
at 891 (holding that, in the context of a wea pon found in an automobile, that “without proof of such knowledg e, individuals could be convicted *** for their mere prese nce in a vehicle in which a wea

pon was found”)

. Even if the State could prove defe ndant had knowledg e of

-7-the prese nce of the wea pon, they would be unable to pr ove defe ndant exercised immediate and exclusive c ontrol over the baseme nt are a wher e the gun was found. Ross
, 407 I ll. App. 3d at 935 (“To establish *** constructive possession of a firea rm, the State must prove *** defe ndant had knowledg e of the prese nce of the wea pon; and *** that defe ndant exercised immediate and exclusive control over the are a wher e the wea pon was found.”)

. The State’s evidenc e established that the pol ice chased defenda nt and Mi tchell down a flight of st airs, wher eupon Mitchell fell over defe ndant. Alrea dy in the baseme nt are a wer e three other unidentified people. Def

endant did not live at t h e re s i dence

. Ba sed on this evidenc e, we cannot say that the State proved beyond a rea sonab l e d oubt that defe ndant exercised exclusive or immediate control over the are a wher e the wea pon was found. Acc ording ly
, we hold that the State failed to provide sufficie nt evidenc e of defe ndant’s guilt beca use it did not prove defe n d a

nt c o n s tr uctively possessed the gun attributed to him. There fore
, his conviction must be reve rsed. ¶ 27 W e n o t e t h at defe ndant, on appea l, also argued that the State failed to prese nt an y evidenc e that he was not an invitee on his uncle’ s proper ty , that his trial counsel was ineffe ctive, and that the ag g ravated unlawful use of a wea pon statute is unconstitutional. Due
to our conclusion in this case , we need not addre ss defe ndant’s re maining arguments. Concerning defe ndant’s challeng e to the constitutionalit y of the ag g ravated unlawful use of a weapon st atute, our d ec i sion not to addre ss the i ssue i s consistent with the principle that
courts of revie w should first att em p t t o resolve disputes on nonconstitutional g rounds if possible. People v. Jack

son , 2013 I L 113986, ¶ 14 (“This court h as re p ea t edly cited the
g ener al pri n ci p l e t h at courts will addre ss constitutional issues only as a last resor t, relying whene ver possible on nonc onstitut ional g rounds to decide case s.”).

¶ 28 CONCLUSI ON ¶ 29 The judg ment of the c ircuit court is re verse d.

¶ 30 Reverse d.

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