No. 3--01--0412

IN THE 

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

THE PEOPLE OF THE STATE OF      )	Appeal from the Circuit Court

ILLINOIS,	)	of the 12th Judicial Circuit

	        					  )	Will County, Illinois

	Plaintiff-Appellee,		  )	

						  )	00--CF--1872

	v.					  )

						  )	

CLEAVON BAILEY,	            )	Honorable

						  )	Daniel J. Rozak,

	Defendant-Appellant.       )	Judge Presiding.

	JUSTICE HOMER delivered the opinion of the court:

	The defendant, Cleavon Bailey, was found guilty by a jury of

the aggravated unlawful use of a weapon (720 ILCS 5/24--

1.6(a)(3)(A) (West 2000)) and sentenced to 30 months of probation

and 64 days in jail.  He appeals his conviction.  Alternatively,

he seeks a refund from the amount collected for costs and fines

associated with his conviction.  Following our careful review, we

reverse.  

	BACKGROUND

	In the early morning hours of November 4, 2000, Bailey was

riding in the front passenger seat of a car driven by Gary

McDonald.  At 6:15 a.m. the vehicle was stopped by Joliet police

officers Tim Powers and Darren Prochaska in the Joliet police

station parking lot after the officers observed the vehicle enter and leave the parking lot several times. 

	The officers approached the vehicle and asked the occupants

what they were doing.  According to Officer Powers, Bailey looked

groggy and stated that he did not know why they were there. 

McDonald told Officer Prochaska that he was there to bond someone

out.  Officer Powers observed an open bottle of beer on the floor

of the vehicle and asked McDonald and Bailey to exit the car. 

The officers planned to have the car towed because of the

presence of the open alcohol.

	 Before towing the vehicle, the officers conducted an

inventory search of the vehicle.  Officer Powers found a 9-

-millimeter Ruger under the front passenger seat during his

search.  The handgun was uncased and loaded.  Officer Powers

testified that he believed the gun was within Bailey's arm reach

but that it was not visible until he looked under the seat. 

After the gun was discovered, both Bailey and McDonald were taken

into custody.  While in custody, Bailey stated that he did not

know that the gun was in the vehicle.

	Detective Dennis McWherter conducted an interview of Bailey

at the police station.  That interview was observed by detective

Frank Miller.  According to McWherter and Miller, Bailey said

that McDonald showed him a gun while they were outside Bailey's

house and that after Bailey looked at the gun, Bailey placed it

on the kitchen table.  When questioned further, Bailey said that

McDonald showed him a gun inside the car and that after looking

at it, Bailey gave it back to McDonald and exited the vehicle.  Bailey also allegedly told McWherter that his fingerprints could

possibly be found on the gun because he had handled it when

McDonald showed it to him.  McWherter never showed Bailey the gun

found in the vehicle to determine if it was the same gun.  Bailey

consistently denied knowing that a gun was under the passenger

seat in the car.  Bailey did not give a written statement to

Detective McWherter, and the interview was not taped. 

	Bailey was charged with aggravated unlawful use of a weapon

in violation of section 24--1.6(a)(3)(A) of the Criminal Code of

1961 (720 ILCS 5/24--1.6(a)(3)(A) (West 2000).  At trial, Bailey

testified that he had no knowledge of the weapon in the vehicle

and denied making any statements to McWherter about McDonald

showing him a gun. 

	The jury found Bailey guilty of aggravated unlawful use of a

weapon.  Subsequently, Bailey filed a motion for a new trial,

which was denied.  Bailey was sentenced to 30 months of probation

and 64 days in the county jail with credit for 64 days of time

actually served.  Bailey was ordered to pay court costs and a

fine totaling $836. 

	Bailey appeals his conviction and argues, alternatively,

that he is entitled to an additional refund of $320 for costs he

paid associated with his conviction.  Additional facts will be

discussed as they become pertinent to our analysis.       

	ANALYSIS

	In reviewing a defendant's insufficiency of evidence claim, the appellate court must examine the evidence in the light most favorable to the prosecution and determine whether any rational

trier of fact could have found that the essential elements of the

crime charged were proven beyond a reasonable doubt.  People v. Bell, 327 Ill. App. 3d 238, 240-42, 764 N.E.2d 551, 553 (2002).  

	The defendant was charged by indictment with aggravated

unlawful use of a weapon.  720 ILCS 5/24--1.6(a)(3)(A) (West

2000).  The statute defining that crime provides:

		"(a) A person commits the offense of aggravated

unlawful use of a weapon when he or she knowingly:

			(1) Carries on or about his or her person or

in any vehicle or concealed on or about his or her

person except when on his or her land or in his or

her abode or fixed place of business any pistol,

revolver, stun gun or taser or other firearm; or

			     	     (2) Carries or possesses on or about his or

her person, upon any public street, alley, or

other public lands within the corporate limits of

a city, village or incorporated town, except when

an invitee thereon or therein, for the purpose of

the display of such weapon or the lawful commerce

in weapons, or except when on his or her own land

or in his or her own abode or fixed place of

business, any pistol, revolver, stun gun or taser

or other firearm; and

		     (3) One of the following factors is present

				(A) the firearm possessed was uncased, loaded and immediately accessible at the time

of the offense."    

	* * *"

720 ILCS 5/24--1.6 (West

2000) 2000).  	 

	Bailey argues that the State failed to prove that he had

knowledge of the weapon in the automobile.  Knowledge of the

defendant is essential to establish unlawful use of a weapon

because without proof of such knowledge, individuals could be

convicted of an offense for their mere presence in a vehicle in

which a weapon was found.  People v. Davis, 50 Ill. App. 3d 163, 167, 365 N.E.2d 1135, 1138 (1977).  

	"Knowing possession" may be either actual or constructive.

People v. Stack, 244 Ill. App. 3d 393, 398, 613 N.E.2d 366, 369 (1993).  Constructive possession is established where (1) the

defendant had knowledge of the presence of the weapon; and (2)

the defendant exercised immediate and exclusive control over the

area where the weapon was found.  Stack, 244 Ill. App. 3d at 398, 613 N.E.2d at 369.  Knowledge of existence of a firearm within

the defendant's possession may be proved through circumstantial

evidence.  Stack, 244 Ill. App. 3d at 399, 613 N.E.2d at 370.    

	Although knowledge may be proved by circumstantial evidence,

it is incumbent upon the State to present such evidence.  Davis, 50 Ill. App. 3d at 167, 365 N.E.2d at 1138.  A defendant's mere

presence in a car, without more, is not evidence that he knows a

weapon is in the car.  Davis, 50 Ill. App. 3d at 168, 365 N.E.2d at 1139.  Factors from which knowledge could be inferred include:

(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.  Davis, 50 Ill. App. 3d at 168, 365 N.E.2d at 1139.  Courts should also consider any other

relevant circumstantial evidence of knowledge, including whether

the defendant had a possessory or ownership interest in the

weapon or in the automobile in which the weapon was found.  

	A review of the record reveals that the State failed to

produce any affirmative evidence, either circumstantial or

direct, to establish that Bailey had knowledge of the presence of

the weapon under his seat.  According to Officer Powers, who

discovered the weapon, the weapon was not visible until he looked

underneath the passenger's seat.  Therefore, the weapon would not

have been visible to Bailey, who was sitting in the passenger's

seat. 			

	Additionally, no fingerprints were ever taken from the gun. 

The gun was owned by Leslie Lanice and had not been reported

stolen or transferred.  The automobile in which the gun was found

was owned by a woman named Lindsay, and there was no record of it

being stolen.  Moreover, the State did not establish any

connection or relationship between Lanice and Bailey or between

Lindsay and Bailey.  

      Neither Officer Powers nor Officer Prochaska testified to

seeing Bailey make any gestures that indicated he was trying to

retrieve or hide the weapon.  In fact, Officer Powers testified that he saw no movements at all from either occupant of the

vehicle while Officer Prochaska observedadmitted seeing slight movement but only

from McDonald as he drove. 

	Upon examination of the facts in this case, we find no

evidence from which Bailey's knowledge of the presence of the gun

can be inferred.  Although Bailey's credibility was called into

question because he allegedly told McWherter two different

accounts of McDonald showing him a gun, a lack of credibility is

not enough to establish that Bailey had knowledge of the presence

of the weapon in the vehicle.  Since the State failed to

introduce any evidence that Bailey had knowledge of the weapon's

presence, we must reverse his conviction.  

	Our reversal of Bailey's conviction makes it unnecessary for

us to determine Bailey's alternative argument that he is entitled

to a refund from the amounts collected for costs and fines

associated with his conviction.  

	CONCLUSION

	For the foregoing reasons, the judgment of the circuit court

of Will County is reversed.  

 		Reversed.

HOLEDIDRIDGE and McDADE, JJ, concurred.