People v. Bolling

• Decision Date: 20 April 1989
• Docket Number: No. 2-88-0422,2-88-0422
• Citation: 181 Ill.App.3d 845,130 Ill.Dec. 771,537 N.E.2d 1100
• Court: United States Appellate Court of Illinois
• Parties: , 130 Ill.Dec. 771 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas W. BOLLING, Defendant-Appellant.

Page 1100

537 N.E.2d 1100

181 Ill.App.3d 845, 130 Ill.Dec. 771

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Thomas W. BOLLING, Defendant-Appellant.

No. 2-88-0422.

Appellate Court of Illinois,

Second District.

April 20, 1989.

Newton E. Finn, Waukegan, for Thomas W. Bolling.

Fred L. Foreman, Lake County State's Atty., William L. Browers, Deputy Director, State's Attorneys Appellate Prosecutor, Joseph J. Ciaccio, Sr., Ciaccio & Ciaccio, Springfield, for people.

Justice McLAREN delivered the opinion of the court:

A jury found defendant, Thomas Bolling, guilty of the offenses of false personation (Ill.Rev.Stat.1987, ch. 38, par. 17-2(a)) and unlawful use of weapons (Ill.Rev.Stat.1987, ch. 38, par. 24-1(a)(4)). Defendant was sentenced to a seven-day term in the custody of the county sheriff, fined $300, and placed on a one-year term of probation. On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of the offenses charged.

Officer Paul Pomazal of the Highland Park police department testified in behalf of the State. Pomazal stated that on July 8, 1987, at 6:46 p.m., he heard the screeching of tires and then the sound of an impact. Pomazal looked to his left and observed what appeared to be a head-on traffic accident in the northbound lanes of Route 41. Pomazal radioed for an ambulance and proceeded to the scene of the accident.

Upon arriving at the scene, Pomazal first approached an Oldsmobile to see if its two passengers were injured. After advising the dispatcher that the two passengers were injured, Pomazal approached defendant's car. Pomazal testified that defendant was seated in the passenger's seat of the car and talking on his car phone. Pomazal observed that defendant was bleeding from his head, and defendant told the officer that he believed he had no other injuries. Pomazal then asked defendant for his driver's license. Defendant reached into his shirt pocket, pulled out a black, single-fold wallet, and opened it. Pomazal observed a gold star inside the wallet. After defendant returned the wallet to his shirt pocket, Pomazal asked defendant, "Who are you with?", and defendant responded that he was with the military police. Pomazal stated that defendant next pulled out a different wallet and produced his driver's license. As Pomazal escorted defendant to an ambulance, defendant told the officer not to move his vehicle because it contained top secret military equipment and paraphernalia.

Pomazal testified that when he returned to defendant's car, the trunk was open due to the accident. Pomazal retrieved a rifle, several rounds of rifle ammunition, a small safe, and some papers which were strewn about the trunk. After placing the items found in defendant's trunk into his car, Pomazal informed defendant of the items recovered. Defendant then stated that there was a 9 mm. handgun in the glove compartment. Upon returning to defendant's car, Pomazal found a 9 mm. handgun which was loaded with a 14-round clip and one round in the chamber. Pomazal also found a holster and a box of 9 mm. cartridges in the backseat area.

Later that evening, Pomazal spoke with defendant at the Highland Park safety center. Defendant told Pomazal that the guns which were found in his car were not issued to him by the military. Defendant explained to the officer that the handgun was in its holster in the backseat prior to impact. Upon impact, the gun was thrown into the front seat, and defendant then placed the gun in the glove compartment. Defendant told Pomazal that the gun should not have been loaded when they found it. Defendant also mentioned that although he was not currently with the military police, he sometimes still carried his military police badge with him. Defendant next told the officer that he was a secret agent with the military and that the officers would not be able to confirm his assignment because nobody else knew about it.

Next, Officer Christopher Cipolla testified in behalf of the State. Cipolla testified that after defendant was taken to the hospital, Cipolla removed a 12-round clip and four loose rounds from defendant's shirt pocket. Cipolla identified the type of bullets found in defendant's possession as hollow-point bullets. Cipolla stated that neither the hollow-point bullets nor the 9 mm. rounds were commonly used for target practice.

Next, Steven Kobiek, a senior chief petty officer of the United States Navy, testified in behalf of the State. Kobiek first met defendant in 1984 when they were assigned to the Navy Brig, Great Lakes, Illinois. Kobiek testified that on July 8, 1987, defendant held the position of corrections specialist with the Navy. Defendant's position involved overseeing 12 to 15 staff members and ensuring that the prisoners were performing their daily assignments. To the best of Kobiek's knowledge, defendant was not a military police officer on July 8, 1987. Kobiek indicated that the badge which defendant displayed to Officer Pomazal was not the type of badge issued to a corrections specialist.

Defendant's rendition of the events which took place on July 8, 1987, paralleled the testimony of the State's witnesses, with a few notable exceptions. Defendant testified that he was going target shooting with an FBI agent who was going to help defendant get a position with the agency. Defendant explained that he carried his military police badge with him because the agent asked him to bring any background information. As he was leaving his home, a friend brought him an athletic bag, which he had forgotten, containing the handgun and ammunition. According to defendant, the athletic bag was zipped shut and burst open during the accident. Upon realizing that the contents of the bag were thrown into the front seat area of his car, defendant locked the handgun in the glove compartment while placing some ammunition in his shirt pocket. Defendant testified that he received a skull fracture and needed 22 stitches in his head as a result of the accident.

When defendant was asked to produce his driver's license, he first opened the wallet containing his military police badge. Defendant testified that upon opening the wallet, Officer Pomazal asked him, "What was that?", to which defendant responded, "Military police badge." Defendant denied trying to pass himself off as a military police officer or a secret agent. Defendant further denied telling the officers that he sometimes carried his military police badge with him. According to defendant, the handgun found in his glove compartment was not loaded, and defendant stated that he never carried a loaded weapon. Defendant explained that he used hollow-point bullets to clean the barrel of his gun after taking target practice.

Officer Timothy Benton testified in rebuttal for the State. Benton first testified about his previous weapons training with the United States Marine Corps. Benton stated that he was familiar with hollow-point bullets and that hollow-point bullets would not be used to clean out the barrel of a gun.

After deliberating, the jury found defendant guilty of false personation and unlawful use of weapons. Defendant filed a motion for a new trial which was denied, and this appeal ensued.

Defendant first contends that the State failed to prove he committed false personation beyond a reasonable doubt. Section 17-2(a) of the Criminal Code of 1961 (Code) states that "[a] person commits a false personation * * * when [he] exhibits or uses in any manner any decal, badge or insignia of any police organization when not authorized to do so by such police organization." (Ill.Rev.Stat.1987, ch. 38, par. 17-2(a).) Defendant asserts that due to the severe injuries to his head, his answers to Officer Pomazal's questions could not be construed as a violation of section 17-2(a). We disagree.

On review, a criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. (People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267.) Our function on review is not to retry the defendant; instead, the relevant question is whether, after viewing the evidence in a light most favorable to the prosecution...