20 20 IL App (1st) 180528

- U No. 1-18-0528 Order f iled January 10, 2020 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS , Plaintiff -Appell ee ,

v.
JESSE LAWRENCE , Defendant -Appell ant

. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.
No. 15 CR 9026
Honorable Michael B. McHale , Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Hoffman and Justice Delort concurred in the judgment. O RDER ¶ 1 Held : Defendant’s conviction for a ggravated unlawful u se of a we apon is affirmed where the evidence supported the trial court ’s inference that he constructively possessed a firearm

. ¶ 2 After a bench trial, defendant was convicted of three counts of aggravated u nlaw ful u se of

a w eapon (AUUW). The court merged the counts and sentenced defendant to one year’s imprisonment. Defendant appeals, arguing that the evidence was insufficient to establish that he
possess ed the firearm . We affirm

.No. 1-18-0528

- 2 - ¶ 3 Defendant was charged by information with nine counts of AUUW. The State proceeded
on counts I

- III, which alleged, in relevant part, that defendant knowingly carried in a vehicle an uncased, loaded, and immediately accessible firearm when he was not on his land, in his dwelling, or in h is place of business, and lacked a valid concealed carry license (CCL) or Firearm Owner ’ s Identification (FOID) card. 720 ILCS 5/24- 1.6(a)(1), (a)(3)(A

- 5); (a)(1), (a)(3)(C) (West 2014). ¶ 4 The court held a hearing on defendant’s motion to quash arrest and suppress evidence simultaneously with his bench trial . T he State called Detective Bradley Ruzak , who testified that on May 26, 2015, at 8:52 p.m., he was on patrol in an unmarked vehicle with Officer Damen Balesteri and Officer Dawn Hubbard. 1 Detective Ruzak saw a tan Chevrolet Cavalier run a stop sign on 6 5th Street and turn on to Stewart Avenue. Detective Ruzak activated his vehicle’s emergency equipment and initiated a traffic stop. D efendant was the driver and sole occupant of the Cavalier

. ¶ 5 Detective Ruzak looked into the Cavalier as he exited his vehicle and noticed defendant “move his shoulders or make movements *** that were suspicious in nature.” The officers approached the Cavalier

. Detective Ruzak wen t to defendant’s window and asked for his driver’s license. Defendant was unable to produce a license

. Detective Ruzak also smelled cannabis . He asked defendant to exit the Cavalier and detained him. ¶ 6 Detective Ruzak search ed the Cavalier using his flashlight

. He noticed that the driver’s side seat belt compartment was aja r, illuminated it, and saw what he recognized as the handle of a

1 The first names of Officers Balesteri and Hubbard do not appear in the report of proceedings ; but the ir first names are listed in an a rrest r eport

.No. 1-18-0528

- 3 - firearm. Detective Ruzak removed the firearm , a loaded blue steel .40 -c aliber semiautomatic

. Detective Ruzak determined that defendant did not have a FOID card or CCL , and arrested him. ¶ 7 On cross -examination, Detective Ruzak admitted he could not see the handle without his flashligh t. The firearm was “concealed” in the compartment such that only the handle was visible when he illuminated the area

. After observing the handle, he pulled back the compartment’s frame to recover the firearm. D efendant did not own the Cavalier. He was given Miranda warnings on the scene , but refused to speak without an attorney present. ¶ 8 On redirect examination, Detective Ruzak clarified that the seatbelt compartment where he located the firearm was situated at shoulder height. He explained that “there is a driver’s side door, and then there is a passenger driver’s side door, and *** that frame is split between the two doors tha t holds the housing for the seatbelt .” On recross -examination, Detective Ruzak state d he did not know exactly what defendant’s “suspicious” movements entailed; it was possible defendant was “moving to the sound of music on his radio” or “searching for his driver’s license.” No fingerprints were recovered from the seatbelt compartment. ¶ 9 Officer Balesteri testified that he helped Detective Ruzak search the vehicle. In the glove compartment , Officer Balesteri found receipts for tolls incurred by the Cavalier which defendant had paid. The receipts, which were entered into evidence, were dated February 8, 2015. ¶ 10 The State entered a stipulation that at the time of arrest, defendant did not have a FOID card or CCL

. ¶ 11 The trial court denied defendant’s motion to quash arrest and suppress evidence. In hi s

case - in

- chief, defen dant entered a certified document from the Secretary of State of Illinois showing that on May 26, 2015, defendant had a valid driver’s license. Defense counsel moved forNo. 1-18-0528

- 4 - a directed verdict, arguing that the evidence was insufficient to establish defendant possessed the firearm

. The State argued defendant had constructive possession of the firearm because he was the sole occupant of the vehicle and Detective Ruzak saw defendant make furtive movements. ¶ 12 The court denied the motion for a directed verdict , explaining that “the fact that the compartment *** was still left ajar is strong circu mstantial evidence that the defendant placed [the firearm] there after being pulled over and it does show knowledge.” The parties declined further argument, and the court found defendant guilty on counts I- III

. ¶ 13 Defendant filed a motion to reconsider the mo tion to quash arrest and suppress evidence and a motion for a new trial, both of which the trial court denied. The case proceeded to sentencing, where the court merged the counts and sentenced defendant to one year’s imprisonment. 2
Defendant did not file a motion to reconsider sentence. ¶ 14 On appeal, d efendant argues that the evidence wa s insufficient to establish that he possessed the firearm

. ¶ 15 We must first de termine the appropriate standard of review. Defendant argues that de novo review applies because the operative facts are undisputed

. See People v. Lucas , 231 Ill. 2d 169, 174 (2008). The State argues that we should apply the standard for reviewing the sufficiency of the evidence pursuant to Jackson v. Virginia , 443 U.S. 307 (1979). We agree with the State. ¶ 16 Detective Ruzak testified as to the circumstances of the traffic stop and his recovery of the firearm

. Based on those circumstances, the trial court inferred th at defendant had constructive possession of the firearm. Defendant argues that this inference was not supported by the record

.

2 The trial court did not s tate the count into which the other counts merged , nor does this information appear on the mittimus.No. 1-18-0528

- 5 - Challenges to inferences made by the trial court are reviewed for the sufficiency of the evidence

. See People v. Loggins , 2019 IL App (1st) 160482, ¶¶ 29-32. ¶ 17 When evaluating the sufficiency of the evidence, the reviewing court consider s the evidence in the light most favorable to the State and determines whether any rational fact finder could have found defendant guilty beyond a reasonable doubt. Peo ple v. Drake , 201 9 IL 123734 , ¶ 21. At a bench trial, the judge is the fact finder and makes all determinations regarding witness credibility, the weight of evidence, and the reasonable inferences to be drawn from the testimony. People v. Siguenza- Brito , 235 Ill. 2d 213, 233 (2009)

. The reviewing court must not substitute its judg ment for that of the fact finder regarding the weight of evidence and witness credibility

. People v. Bradford , 2016 IL 118674, ¶ 12. The reviewing court “will not reverse the trial court’s judgment unless the evidence is so unreasonable, improbabl e , or uns atisfactory as to create a reasonable doubt of the defendant’s guilt.” People v. Newton , 2018 IL 122958, ¶ 24. ¶ 18 T o establish the elements of AUUW, the State was required to prove, in relevant part, that defendant possessed a firearm in a vehicle and did not have a valid CCL or FOID card at the time

. 720 ILCS 5/24- 1.6(a)(1), (a)(3)(A

- 5); (a)(1), (a)(3)(C) (West 2014). Here, defendant challenge s the sufficiency of the evidence re garding possession. ¶ 19 To establish this element , the State may introduce evidence that a defendant had either actual or constructive possession of a firearm. People v. Faulkner , 2017 IL App (1st) 132884, ¶ 39. Here, the State pursued a constructive possession theory. “To establish constructive possessi on, the State must prove that the defendant: (1) had knowledge of the presence of the weapon and (2) exercised immediate and exclusive control over the area where the weapon was found.” Id. BothNo. 1-18-0528

- 6 - elements can be proven through circumstantial evidence. Peopl e v. McCurine , 2019 IL App (1st) 160817, ¶¶ 22-24. ¶ 20 “Control is established when the defendant has the capability and intent to maintain dominion and control over the contraband.” People v. Jackson , 2019 IL App (1st) 161745, ¶ 27

. A defendant’s control ove r a vehicle from which contraband is recovered , including driving the vehicle , can support an inference that the defendant control led the area where the weapon was found. See People v. McNeely , 99 Ill. App. 3d 1021 , 1024 (1985). However, the defendant’s control of a vehicle containing contraband does not by itself establish constructive possession; the State must also prove the defendant’s knowledge of the item. People v. Hampton , 3 58 Ill. App. 3d 1029, 1031

- 33 (2005 ). In this context, a defendant’s knowledge can be inferred from factors including “(1) the visibility of the weapon from defendant ’ s position in the car , (2) the period of time in which the defendant had an opportunity to observe the weapon , (3) any gestures by the defendant indicating an effort to retrieve or hide the weapon , and (4) the size of the weapon.” People v. Bailey , 333 Ill. App. 3d 888, 891-92 (2002). ¶ 21 Defendant challenges the sufficiency of the evidence for both elements. First, regarding control, defendant argues that the evidence was insufficient because he did not own the vehicle, the State did not introduce fingerprint evidence or other evidence he handled the firearm, and th e toll receipts did not establish exclusive control of the ve hicle

. ¶ 22 The record shows that defendant was the driver and sole occupant of the vehicle, and Detective Ruzak found the firearm in an open compartment within defendant’s reach. Th ese were sufficient facts from which the court could infer contro l. First, defendant’s status as driver can by itself support the inference that he controlled the area where the weapon was found. See McNeely ,No. 1-18-0528

- 7 - 99 Ill. App. 3d at 1024 (fact defendant was the driver, even when he had one passenger, was enough to demonstrate immediate a nd exclusive control of th e area where the weapon was found ) ; see also People v. Janis , 56 Ill. App. 3d 160, 163 -64 (1977) (although defendant did not own a van where a weapon was found, his control was established when he was seen in the driver’s seat). ¶ 23 Second, defendant’s p roximity to the firearm also allows for an inference that he control led the area where the weapon was found

. People v. Ingram , 389 Ill. App. 3d 897 (2009) , is instructive

. In Ingram , the defendant was in the front passenger seat of a vehicle he did not own. Ingram , 389 Ill. App. 3d at 898. After stopping the vehicle, officers discovered that th e front passenger seat was broken and lean ing on the backseat

. Id. T he officers recovered a firearm from the floor behind the driver’s seat in an area that was accessible to the defendant due to the broken seat. Id. Th is court ruled that an inference the defendant control led the area where the weapon was found was reasonable because the firearm was in a location he could “easily” reach

. Id. at 900 (citing People v. O’Neal , 35 Ill. App. 3d 89, 91 (1975) (contraband “sufficiently accessible” to a defendant for purposes of control if it is within “easy reach”) ). Here, d efendant was driv ing and was seated within arm’s reach of the firearm. T he court therefore had multiple bases to reasonably infer defendant had control over the area where the firearm was found

. ¶ 24 Defendant also challenges the sufficiency of the evidence regarding his knowledge of the
weapon . Initially, w e note there is no evidence of the firearm’s size or the time defendant had to observe the firearm. However, we find that other evidence, taken in the light most favorable to the State, was sufficient to support an inference of knowledge. ¶ 25 The determinative factor here is whether defendant made “any gestures *** indicating an effort to retrieve or hide the weapon .” Bailey , 333 Ill. App. 3d at 8 92. Detective Ruzak testifiedNo. 1-18-0528

- 8 - that he saw defendant making “suspicious” movements with his shoulders im mediately after the stop. This testimony was sufficient to support an inference of knowledge. ¶ 26 Helpful on this point is People v. Nesbit , 398 Ill. App. 3d 200 (2010)

. In Nesbit , t wo officers testified that the defendant driver made hand movements towards the floor of the vehicle following a traffic stop

. Nesbit , 398 Ill. App. 3d at 204. T he officers examined th e floor , and found a firearm partially concealed by the floorboard, with the handle in plain view

. Id. Th e reviewing court ruled that this evidence supported an inference of knowledge, even though the defendant never said the firearm was his and did not own the vehicle

. Id. at 210-11. ¶ 27 This case is analogous to Nesbit

. Detective Ruzak saw defendant making movements with his shoulders. Moments later, Detective Ruzak saw the firearm ’s handle in a compartment located at shoulder height of defendant’s location in the vehicle

. From these facts, the trial court could reasonably infer defendant knew the fi rearm was in the seatbelt compartment . See also People v.
Grant , 339 Ill. App. 3d 792, 798

- 99 (2003) (knowledge could be inferred where officers saw the defendant make movements towards the passenger seat and then recovered a firearm from that

sea t ). ¶ 28 D efen dant’s citation to case s holding tha t furtive movements are by themselves insufficient to lend probable cause is misplaced. While furtive movements alone may not provide probable cause for a warrantless search, the issue in this appeal is whether evidence of furtive movements, taken alongside all the other evidence, was sufficient to prove defendant’s guilt beyond a reasonable doubt. As we have explained, gestures such as the ones defendant made here can support an inference of knowledge. Additionally, the court was not required to give any weight to Detective Ruzak ’s concession that defendant could have been listening to music or looking for hisNo. 1-18-0528

- 9 - driver’s license as the officers approached . The trial court, as fact finder, is tasked with dr awing reasonable inferences, and is “ not required to disregard inferences that flow normally from the evidence or seek out all possible explanations consistent with innocence and raise th ose explanations to a level of reasonable doubt.” People v. Castillo , 2018 IL App (1st) 153147, ¶ 33. ¶ 29 The firearm’s visibili ty also supports an inference of knowledge . D efendant argues that the firearm was “concealed ,” but Detective Ruzak testified t hat the handle was visible after he illuminated the seatbelt compartment wi th his flashlight. A n item may still be in plain view if it is visible with the use of artificial illumination. See People v. Epperley , 33 Ill. App. 3d 886, 888 -89 (1975) (necessity of artificial light does not mean item is not in plain view). Moreover, t he fact that only the handle was visible does not invalidate the inference because knowledge can be inferred even when contraband is only partially visible

. See Nesbit , 398 Ill. App. 3d at 210 -11 (inference of knowledge supported where contrab and is “protruding” from underneath a seat ); McNeely , 99 Ill. App. 3d at 1024 (inference of knowledge supported where bag containing contraband was partially visible from under the veh icle ’s seat)

. Th is case is thus distinguis hable from matters w here contraband is concealed entirely ( Hampton , 3 58 Ill. App. 3d at 1033 ) or partially concealed, but not necessarily visible from a defendant driver’s position in the vehicle ( People v. Thomas , 2019 IL App ( 1st) 162791, ¶ 28 ). Consequently, we find that the trial court properly concluded defendant had knowledge of the firearm. ¶ 30 In sum, the trial court reasonably inferred that defendant had control over the area where the firearm was found and knowledge of the firearm’s presence , establish ing constructive possession. Defendant’s conviction for AUUW is therefore affirmed. ¶ 31 Affirmed.