People v. Jenkins

• Court: Appellate Court of Illinois
• Writing for the Court: Theis
• Citation: People v. Jenkins, 891 N.E.2d 536, 383 Ill. App. 3d 978 (Ill. App. 2008)
• Decision Date: 30 June 2008
• Docket Number: No. 1-06-1939.,1-06-1939.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold JENKINS, Defendant-Appellant.

891 N.E.2d 536

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold JENKINS, Defendant-Appellant.

No. 1-06-1939.

Appellate Court of Illinois, First District, Third Division.

June 30, 2008.

Rehearing Denied July 30, 2008.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Noah Montague, Angela Zak Ordway, Assistant State's Attorneys, Chicago, IL, for Plaintiff-Appellee.

Patricia Unsinn, State Appellate Defender, Heidi Linn Lambros, Assistant Appellate Defender, Chicago, IL, for Defendant-Appellant.

Justice THEIS delivered the opinion of the court:

Following a jury trial, defendant Harold Jenkins was convicted of one count of aggravated possession of stolen firearms (720 ILCS 5/16-16.1 (West 2004)) and two counts of possession of a stolen firearm (720 ILCS 5/16-16 (West 2004)) and was sentenced to four years' imprisonment. On appeal, defendant claims that his convictions should be reversed because (1) the indictment was barred by the statute of limitations; (2) the statutes under which he was convicted are ex post facto laws because they impermissibly criminalize conduct and increase penalties for offenses that occurred before their enactment; (3) the trial court erred in excluding testimony of defense witnesses; and (4) the trial court erred in instructing the jury on the elements of the offenses. Alternatively, defendant argues that his trial counsel was ineffective for failing to request the proper jury instructions. For the following reasons, we affirm.

Defendant is a former lieutenant with the Maywood Police Department. As a condition of bond in another criminal case, defendant was ordered to surrender all of his weapons to Joseph Thomas of the Illinois Attorney General's firearms unit. On September 26, 2002, Thomas seized 21 weapons from defendant's home, including a .357-caliber Marlin rifle and a .45-caliber Ruger pistol. All of the guns were inventoried and their serial numbers traced to discover their original purchasers, according to standard protocol. The Marlin rifle was originally purchased by Horace Reedy and the Ruger pistol was originally purchased by Jason Taylor. When he was a Maywood police officer, defendant arrested both men for weapons violations and confiscated these particular weapons as a result of the arrests.

Defendant was indicted by a grand jury on January 8, 2004, and charged with two counts of possession of a stolen firearm and one count of aggravated possession of not less than two, but not more than five, stolen firearms. Defendant filed a motion to dismiss the indictment, arguing that the statute of limitations on these possession offenses had expired. According to defendant the limitations periods began to run when defendant acquired the stolen firearms. Defendant argued that the State failed to allege when the guns were acquired, but the circumstantial evidence indicates that they were acquired well beyond the limitations period. Furthermore, possession offenses have not been designated by the legislature as continuing offenses, which designation would have extended the limitations period. The court denied defendant's motion.

The State's theory of the case was that defendant acquired these weapons from the evidence locker at the Maywood Police Department some time after the criminal prosecutions of Reedy and Taylor, when the guns were no longer needed as evidence. Although defendant was not charged with theft, the State alleged that defendant knew that the Marlin rifle and Ruger pistol found in his home were stolen from the Maywood Police Department.

Defendant sought to introduce testimony of four witnesses, including two former Maywood police chiefs, who would testify generally about the existence of an unwritten policy at the Maywood Police Department allowing officers to take confiscated weapons for their own personal use after the close of the criminal case involving those weapons. The State filed a motion in limine to exclude that testimony, arguing that none of these witnesses would testify about when or by whom the policy was created and, thus, the testimony would lack a proper foundation and would be inadmissible hearsay. Moreover, it was irrelevant because none of the witnesses would testify that they personally gave or allowed defendant to take either of the guns at issue in this case. The court barred the witnesses' testimony for the reasons advocated by the State.

The case then proceeded to trial. Officer Anthony Winburn testified that he and defendant arrested Reedy on March 22, 1980, for firing the Marlin rifle while on the back porch of his home. Defendant seized the rifle from Reedy and gave it to Officer Winburn, saying that "it looked like a good gun for hunting." Officer Winburn inventoried the gun and locked it in the evidence locker at the Maywood police station. Officer Winburn did not permit anyone to take the rifle after that point.

Taylor then testified that he lawfully purchased the Ruger pistol on July 23, 1992. That day, Taylor went to the Maywood Police Department to report the theft of a different gun. While there, he was arrested by defendant for a weapons violation that did not involve the Ruger pistol. An hour after he was placed in a holding cell, defendant took Taylor to an interview room and showed him ten of the handguns that defendant apparently confiscated from Taylor's home while he was in custody, including the Ruger pistol he picked up earlier that day. Taylor said that was the last time he saw the Ruger pistol.

When Taylor returned to the police station several days later to retrieve his weapons, defendant told him that they would not be returned to him because he no longer had a valid Firearm Owner's Identification (FOID) card. On redirect examination, he stated that he did not report any of the confiscated weapons as being stolen because "they [were not] stolen. [Defendant] had them."

Officer Jose Mazieregos also testified that as a lieutenant in the Maywood Police Department's internal investigations division, he investigated alleged police misconduct. He assisted with the Attorney General's investigation of defendant regarding the weapons seized from his home, specifically the Ruger pistol and the Marlin rifle, although he was not asked to elaborate on the nature or results of that investigation. He testified that nobody in the Maywood Police Department gave defendant permission to be in possession of the Ruger pistol or the Marlin rifle that were stored in the evidence locker at the Maywood Police Department.

The defense rested without presenting any evidence. After the court denied defendant's motion for a directed verdict, the parties and the court discussed the jury instructions. After the court read each proposed instruction, the parties were permitted to comment or object. The court indicated that two of the instructions related to possession of a stolen firearm were not Illinois Pattern Jury Instructions (IPI). The State indicated that there were no IPI instructions on that offense. Defense counsel stated, "Judge, it is a non-IPI instruction. It certainly contains the elements that are involved in the indictment. So, I won't object." As to the instruction for aggravated possession of stolen firearms, defense counsel stated, "This is another non-IPI. I don't have any objection. I believe it states the elements."

After closing arguments, the jury was given the following instruction on possession of a stolen firearm:

"To sustain the charge of possession [of a] stolen firearm[,] the State must prove the following propositions.

First, that the property that the defendant possessed, firearm, to wit; a Ruger model P 890, 45 calibre [sic] pistol, serial No. 66033592.

And [the] second proposition is that when the defendant did so[,] he was not entitled to possess said firearm.

And [the] third proposition is, that the defendant knew said firearm was stolen.

If you find from your consideration [of] all evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty."

The same instruction was given with respect to the Marlin rifle. The jury was also instructed that "Possession may be actual or constructive. A person has actual possession when he has immediate or exclusive control over a thing." The court also instructed the jury on the definitions of "constructive possession" and "firearm."

The court then read the following instruction:

"To sustain the charge of aggravated possession [of] stolen firearm[s,] the State must prove the following propositions.

First proposition, that the defendant possessed two firearms, to wit; a Ruger model 980, 45, pistol serial No. 66033519. And a Marlin model 1894, 357 calibre [sic] rifle, serial number 21191688.

And [the] second proposition is that when the defendant did so[,] he was not entitled to possess said firearm.

And, [the] third proposition, that the defendant knew * * * said firearms were stolen. * * *

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty."

The jury convicted defendant on all three counts. Defendant filed a motion for a new trial, which was denied. This timely appeal followed.

Defendant first argues that the circuit court erred when it failed to dismiss the indictment as barred by the statute of limitations. He contends that the court erroneously determined that sections 16-16 and 16-16.1 of the Illinois Criminal Code of 1961 (Code) (hereafter, the possession statutes) were "continuing...