## 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 . McIntyre , 2011 IL App (2d) 100889

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ANTHO NY J. McI

NTYRE, De fenda

nt-Appellant.

District & N o. Second District Docke t No. 2-10-0889

Filed Dec ember 14, 2011

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

. ) Def endant’ s convictions for unlawful possession of a wea pon by a felon and possessing a weapon without a F OI D ca rd we re r ever sed whe re the State failed to established defenda nt’s guilt of unl awf

ul possession of a

wea pon by a felon under e ither an a ccounta bility theory or a the ory

that he construc tively

possessed a w eapon.

Dec ision Under Review Appea l f rom the Circuit Court of Winnebag o County
, No. 08-CF- 4060; the Hon. John R . Truitt, J udg e, pre siding.

J udg ment Reverse d.Counsel on

Appea l T h omas A. L ilien and Sherry R. Silvern, both of State Appellate Def ender ’s Off

ice, of Elg in, for appe llant.

J oseph P

. Br

uscato, S tate’s Attorney
, of R ockfor d (L awr ence M. Ba uer and Diane L

. Campbell, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE BURKE de livered the judgme nt of the cour t, with opinion.
J ustice s M c L a

r e n a n d Hutc hinson concur

red in the judgme nt and opinion.

OP INION

¶ 1 At issue in th i s ap p ea l is whether defe ndant, Anthony J

. McInty re, was proved guilty beyond a rea sonable doubt of unlawful possession of a wea pon by a felon (720 I L CS 5/24- 1

. 1 (a ) (West 2008)). For the rea sons that follow, we deter mine that he was not. Th u s , we

reve rse his conviction of that offe nse in addition to his conviction of possession of a wea pon without a firea

rm-owne r’s identification (FOID) c ard ( 430 I L CS 65/ 2(a) (1) ( West 2008)). ¶ 2 At defe ndant’s jury trial it was reve aled that, on October 12, 2008, defe ndant, a convic ted felon, acc ompanied Guada lupe Gar cia, who was not a convicted felon, to a bar in Rockford. Gar cia had a firea

rm conce aled in the crotc h of his pants. Gar cia testified that he neither told defe ndant about the gun nor showed it to him. When the bar closed at around 2 a.m., Gar cia

was out in the parking lot and a black man confr onted him. After Gar cia and the black man eng ag ed in a verba l alterc ation, the black man told Gar cia that he had something for him and then drove awa

y

. Gar cia believed that the black m an m ea n t that he had a wea pon. Gar cia asked defe ndant to drive him i n d ef endant’ s Suburban so that he could fight the man. Al t h o ug h defe ndant initially attempted to dissuade Gar cia from doing so, he never th el es s drove G arc ia to a home c lose to the bar. ¶ 3 When defe ndant pulled up to the home, a black man was standing on the front porch with

a woman who was later identified as Spring Starks. Starks testified that sh e co u l d n o t s ee anyone inside of the Suburban. Howeve r, she soon noticed that shots wer e being fired from the Suburban. Acc ording to an office r who interviewe d Starks afte r the shooting, Starks told the police that the passeng er in the Suburban display ed a handgun out of the window and then fire d it. After a few shot s wer e fired, t he S uburban remained in front of he r house f or a few seconds but then l eft. S tarks testified that the Suburba n was in fr ont of her home for 1 to 11⁄2 minutes and that it was parke d so that the passeng er side of it fac ed her home. Starks also stated that no one e x ited the Suburban while it wa s parke d in front of he r house. ¶ 4 Soon there afte r, Offic er J essie Geiken was responding to a dispatch conce rning the shots fired at Starks’ home when he saw defe ndant speeding

. Def endant’ s Suburban matched the

-2-description of the car that was involved in the shooting at Starks’ home. Geiken activate d the

mars lights on his squa d car and followed defe ndant’s Suburban. Def endant slowed his car down to 10 miles per hour and eventua lly stopped a few seconds later and within two blocks. ¶ 5 After the Suburban was stopped, defe ndant and Gar cia wer e order ed out of the car

. When Gar cia exit ed, Geiken could see one or two inches of a gun sticking out from underne ath the right side of the front-pa sseng er seat. Gar cia admitted at trial that he shoved the gun under 1 the seat after

leaving Starks’ home. ¶ 6 After seeing the gun, Geiken spoke with defe ndant about the shooting. As rele vant her e, defe ndant told Geiken that, when he an d Garcia arrived at Starks’ home, he exit ed the Suburban to g o fight with the black man. Def endant was walking around the Suburban when he hear d shots being fired. Def endant looked back at his car and saw Gar cia hang ing out of it and firing a handgun at the black man. Def endant, who was surprised by Gar cia’ s actions,
returne d to his Suburban and attempted to drive home beca use he wanted to preve nt Gar cia from shooting the black man. Def endant told Geiken that he had no idea from wher e the gun had come and that he knew Gar cia had the gun only afte r Gar cia started firing it at the black man. As defe ndant t old Geiken about the shooting, de fenda nt appea red to be very upset at Gar cia. ¶ 7 At trial, Gar cia confirme d that defe ndant knew nothing about Garci a’ s plan to fire the
gun at t h e b l ac k man and that defe ndant was surprised and upset about Gar cia doing so. Howeve r, Garcia also stated that defendant never left the S uburban while it was p arked in front of Starks’ home. Rather, acc ording to Gar cia’ s testimony
, defe ndant was seate d next to Gar cia when Gar cia pulled the gun out of his crotc h and pointed it out of the Suburban and at the blac k man. ¶ 8 Moreove r, Gar cia admitted at trial that when he spoke with t h e p o l i ce ri ght afte r the shooting he lied about what had happene d. Specifica lly
, when questioned by the police at the

scene , Gar cia indicated that he did not know any thing about the gun found under the seat on which he was sitti ng

. Gar cia also never told the police that he went to Starks’ home to fight

or th at h e as k ed defe ndant to drive him there

. Gar cia, who was charg ed with the same offe nses as defe ndant, als o admitted at trial that he enter ed into a plea agree ment with the State. Pursuant to that agree ment, Gar ci a pleade d guilty to ag g ravated unlawful use of a 2

wea pon and possessinga fire arm without a F OI D ca rd, in retur

n for a three -year

sentenc e. ¶ 9 The jury
, which was instructed o n ac co u n t ab i lity and constructive possession, found defe ndant guilty of unlawful possession of a wea pon by a felon and possession of a firea rm without a FOID car d. Def endant moved for a new trial, arguing, among other things, that he

was n o t proved guilty beyond a rea sonable doubt. The trial court denied the motion, and,

Phot ograph s ta ken of the Subu rba n af te r the st op re veal tha t the gun was in a spa ce bet ween 1 the le at her por ti on of the fr ont

- pas sen ger sea t and the pla st ic bas e, nea re st the fr ont

- pas sen ger door

.

Gar ci a, li ke def

end ant , w a s cha rged wit h unl awf ul pos ses si on of a weap on by a fe lon
, 2
pos ses si on of a weap on wit hout a FOI D car d, aggra vated unl awf ul use of a weap on, and aggra vated dis cha rge of

a f ir ear m

.
-3-afte r deter mining that the conviction of possession of a firea rm without a FOID car d merg ed into the conviction of unlawful possession of a wea pon by a felon, the trial court sentenc ed defe ndant to three year s’ imprisonment. This tim ely appea l followed. ¶ 10 At issue in this appea l is whether defe ndant was proved guilty beyond a rea sonable doubt of unlawful possession of a wea pon by a felon. To prove a defe ndant guilty of unlawful possession of a wea

pon by a felon, the State must establish that the defe ndant (1) knowing ly possessed the firear

m and (2) had been convicted of a felony . 720 I L CS 5/ 24-1.1(a) (West 2008); People v . Chirchiril lo , 393 I ll. App. 3d 916, 922 (2009). ¶ 11 Def

endant argues that the evidenc e failed to establish beyond a rea sonable doubt that he

was proved guilty either under an acc ountability theory or as a principal. Concerning his claim that he was not proved guilty as a principal, defe ndant contends that the State did not prove that he actu al l y p o s sessed the wea pon or that he constructively possessed it. In response , the State essentially conce des that the evidenc e did not establish that defe ndant had
actua l possession of the wea pon. Howeve r, the State argues that defe ndant was proved guilty under either an acc ountability theory or a theory that he constructively possessed the wea pon. Thus, we c onsider only

those theories. ¶ 12 The fir st issue w e addre ss is whether defe ndant was proved guilty beyond a re asonable doubt of unlawful possession of a wea pon by a felon under an acc ountability theory

. We revie w t his issue de novo

. Chirchiril lo
, 393 I ll. App. 3d at 921. In order for a defe ndant t o be found guilty under an acc ountability theo ry , t h e S t ate must first establish a prima facie

case ag ainst the principal. Id. at 925. Once the State has done so, the State must then prove that th e accomplice, either befor e or during the commission of the offe nse, and with the intent to promote or fac ilitate such co m m i s s i on, solicited, aided, abetted, or agree d or attempted to a id the principal in the planning or commission of the offe nse. Id. Thus, here
, in order t o p ro v e defe ndant guilty beyond a rea sonable doubt of unlawful possession of a

wea p o n b y a fe lon under an acc ountability theory
, the State neede d to prove that Gar cia knowing ly possessed the wea pon, that Gar cia was a convicted fe l o n , and that defe ndant somehow helpe d Gar cia a ccomplish the crime. Id. at 925-26. ¶ 13 L acking in this case is any evidenc e that Gar cia was a convicted felon. Rather, the only evidenc e prese nted at trial on this issue reve aled that Gar cia was not a convicted felon when he had the gun. Acc ording ly
, beca use the State failed to establish that Gar cia committed the offe nse of unlawful possession of a wea pon by a felon, defe ndant could not be found guilty of that off ense unde r an a ccounta

bility theory

. Id. at 926-27. ¶ 14 Not ing that this court followed Chirchiril lo in People v. Gibson
, 403 I ll. App. 3d 94 2 (2010), pet. for leave to appeal pending
, No. 111097, defe ndant asks us to hold our decision in this case in abeyance until our supreme court rende rs a decision in Gibson

. We decline to do so, as Gibson raises issues other than under what circ umstances a defe ndant may be held

acc ountable for

the ac tions of the principal a nd Chirchiril lo is directly on point. ¶ 15 Having conclude d that defen d an t wa s not proved guilty beyond a rea sonable doubt of unlawful possession of a wea pon by a felon under an acc ountability theory
, we next addre ss whether he was proved guilty und er a theory that he constructively possessed the wea pon. When a defe ndant challeng es the sufficie ncy of the evidenc e, a revie wing court will not set

-4-aside the c onviction unless the evidenc e is so improbable or unsatisfactory that it c reates a

rea sonable doubt of the defe ndant’s guilt

. S ee People v. Hampton
, 358 I ll. App. 3d 1029, 1031 (2005). When revie wing a challeng e to the sufficie ncy of the evidenc e, “ ‘the rele vant question is whether
, afte r viewing the evidenc e in the light most favor able to the prosec ution,
any rational trier of fac t could have found th e es s en t ial elements of the crime beyond a

rea sonable doubt.’ ” (Emphasis in orig inal.) People v. Colli ns , 106 I ll. 2d 237, 261 (1985) (quoting Jack

son v. Virginia , 443 U.S. 307, 319 (1979)). ¶ 16 To prove that defe ndant constructively possessed the wea pon, the State had to establish that defe ndant (1) had knowledg e of the prese nce of the wea pon and (2) had immediate and exclusive c ontrol over the are a wher e the wea pon was found. Hampton
, 358 I ll. App. 3d at 1031. Def endant contends that the State failed to establish either. We believe that, reg ardle ss of defe ndant’s knowledg e o f t h e we apon (and the evidenc e indicates that defe ndant was

awa re of the gun from the time the shots wer e fired to the traff ic stop by the police), the State failed to prove that defe ndant had immediate and exclusive control over it. Thus, defe ndant was not proved guilty

beyond a re asonable doubt of unlawful possession of a wea pon by a felon ba sed on a the ory

of construc tive possession. ¶ 17 “A pe rson’s knowledg e of the place or location of the [i tem] alleg ed to be possesse d is
not the equivalent of possession.” People v. Day
, 51 I ll. App. 3d 916, 917 (1977). L ikewise, “proximi ty to the items at issue is not sufficie nt to show possession.” Id. Moreove r, a defe ndant’s “st at u s as o wner -driver of the vehicle does not put him into possession of

ever y thing within the passeng er are a when there are passeng ers prese nt who may , in fac t, be the ones in possession of the contra band.” Id. at 918. That is not to say , h o we v er , that possession may not be jointly held by the owner -driver and other passeng ers. See People v. Given s, 237 I ll. 2d 311, 335 (2010). But, even in case s wherethere is jointpossession, the evidenc e must support a conclusion that the defe ndant had control, or the ability to exercise control, over

the contra

band. See id. ¶ 18 Her e, the evi d en ce re v ea led that the gun was found in an opening betwee n the plastic base of the front-pa sseng er seat and the leather portion of that seat, on the side of the seat that

was closest to the front-pa sseng er door. Given that, we cannot conclude th at t h e evidenc e established that def

endant ha d control, or the a bility to exercise contr ol, over the w eapon. ¶ 19 Having co n cl u d ed th at t h e S t at e fa i l ed to establish defe ndant’s guilt of unlawf ul possession of a wea

pon by a felon, we next consider whether defe ndant’s convic t i on of possessing a weapon wit hout a FOI D card m ay sta n d

. W e co n cl u d e that it may not, as t he State failed to establish that defe ndant possessed the wea pon. See People v. Seibec h
, 141 I ll. App. 3d 45, 50 (1986) (not i n g that a defe ndant must knowing ly possess a wea pon, either
actua lly or constructively
, in order to be found guilty of u n l aw fu l p o ssession of a wea pon without a FOID ca

rd). ¶ 20 For

these re asons, the judg ment of the c ircuit court of Winnebag o County

is rever sed.

¶ 21 Reverse d.

-5-