People v. Jermaine Ross

• Decision Date: 11 March 2011
• Docket Number: No. 1–09–1463.,1–09–1463.
• Citation: 349 Ill.Dec. 762,947 N.E.2d 776,407 Ill.App.3d 931
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jermaine ROSS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 931

947 N.E.2d 776

349 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Jermaine ROSS, Defendant–Appellant.

No. 1–09–1463.

Appellate Court of Illinois, First District, Sixth Division.

March 11, 2011.

Office of the State Appellate Defender, Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender (Christopher Kopacz, Assistant Appellate Defender), for Appellant.Anita M. Alvarez, State's Attorney (Alan J. Spellberg, Noah Montague, of counsel), for Appellee.

OPINION

Justice ROBERT E. GORDON delivered the judgment of the court, with opinion.

Defendant Jermaine Ross was found guilty after a bench trial of aggravated unlawful use of a weapon and of being an armed habitual criminal. He was sentenced to 80 months in the Illinois Department of Corrections on the armed habitual criminal count only; no sentence was imposed for the aggravated unlawful use of a weapon count. 720 ILCS 5/24–1.7 (West 2008). After his posttrial motion was denied, defendant filed this appeal and argues: (1) that the State failed to prove beyond a reasonable doubt that defendant had knowledge of the firearms found behind the driver's seat of an automobile that he did not own; (2) that the armed habitual criminal statute violates federal and state constitutional guarantees of the right

[349 Ill.Dec. 765 , 947 N.E.2d 779]

to bear arms; and (3) that the statute violates the ex post facto clauses of both the federal and state constitutions since the predicate prior convictions occurred before the effective date of the legislation that created the offense. For the following reasons, we are not persuaded by defendant's claims, and we affirm his conviction.

BACKGROUND

I. State's Case In Chief

The facts of this case are highly disputed. Police officer Conray Jones, a 16–year veteran of the Chicago police department, testified that he was with his partner Officer Seaberry in a marked police vehicle when he observed Sylvester Tatum walking toward a vehicle stopped along the curb on West End Avenue near Central Avenue. The police vehicle was 20 to 30 feet from the rear of defendant's vehicle when he heard Tatum say “rocks and blows” to defendant, who was stopped with his vehicle running, window opened, sitting in the driver's side of the vehicle with no passengers. The officer knew that “rocks and blows” was street talk for cocaine and heroin. When Tatum noticed the police vehicle, he walked away from the parked auto. Defendant then exited the vehicle, leaving the auto running. The officers detained defendant and Tatum. Officer Seaberry walked to the stopped vehicle and returned with a .40–caliber handgun with 10 live rounds. The officers then placed defendant under arrest.

Officer Jones's partner, Officer Seaberry, also testified that he heard Tatum say something like “rocks and blows” as they eased behind defendant's vehicle. Officer Seaberry's testimony corroborated the testimony of Officer Jones. After the police detained Tatum and defendant, Officer Seaberry walked over to defendant's vehicle, which was still running. While standing outside the vehicle, he observed the butt of a gun on the floor of the backseat, behind the driver's side, next to and partially under a black bag. Officer Seaberry testified that he made this observation from outside the vehicle when the back door was closed. After the State presented certified copies of defendant's convictions for delivery of a controlled substance, it rested its case.

II. Defense Case

The defense called Elizabeth Gomez, defendant's girlfriend, who testified that the vehicle belonged to her. On the morning of defendant's arrest, defendant dropped her off at work at about 9:50 a.m. and at that point in time the only item in the backseat of her vehicle was an infant car seat.

Defendant also testified on his own behalf. Defendant testified that when he drove Gomez's vehicle, the only item in the backseat was the infant car seat and he denied having a gun in his possession. Defendant testified that, after he dropped off Gomez, he picked up his friend, Tyrone Patterson, and then he observed his teenage son, Jamal, on Central Avenue. Defendant stopped and told Jamal that he would be stopping a block away.

When defendant turned onto West End Avenue, he observed Tatum and another friend. Defendant stopped and parked the vehicle and walked across the street to talk to Tatum. Then, an unmarked police vehicle arrived, and a detective told defendant to move his vehicle because it was parked illegally. The unmarked police vehicle then left the area. Defendant then asked his friend Patterson to move the vehicle, and defendant's son Jamal approached. Then, the marked police vehicle arrived with Officers Jones and Seaberry.

Patterson also testified for the defense and corroborated most of defendant's testimony

[349 Ill.Dec. 766 , 947 N.E.2d 780]

However, he testified that, after he exited the vehicle after parking it, he was walking toward defendant when Jamal arrived. He observed Jamal walk toward the vehicle, open the back door and place a gun under the seat. As Patterson began to tell defendant what Jamal had done, the police arrived and detained everyone, which included defendant, Tatum, Patterson, and Jamal. Patterson had three prior felony convictions and was on parole at the time of the trial.

The defense also introduced 43 seconds of a security camera footage that showed only Officer Seaberry walking to the backseat of the parked vehicle. Defendant testified that the video showed that the vehicle was not running.

III. State's Rebuttal Case

In the State's rebuttal case, Officer Jones testified that there were no people in the area other than defendant and Tatum.

As noted, defendant was found guilty of aggravated unlawful use of a weapon and of being an armed habitual criminal. He was sentenced to 80 months on the armed habitual criminal count; and no sentence was given for the aggravated unlawful use of a weapon count.

ANALYSIS

I. Sufficiency of the Evidence

Defendant first claims that the State failed to prove him guilty beyond a reasonable doubt, of being an armed habitual criminal. Defendant claims that he was not the owner of the vehicle and that the handgun was behind the driver's seat and out of his view.

A. Standard of Review

When reviewing the sufficiency of the evidence in a criminal case, we must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); People v. Smith, 185 Ill.2d 532, 541, 236 Ill.Dec. 779, 708 N.E.2d 365 (1999). Defendant claims that our standard of review is de novo as the question is purely legal. In re Ryan B., 212 Ill.2d 226, 231, 288 Ill.Dec. 137, 817 N.E.2d 495 (2004) (where defendant's challenge to the sufficiency of the evidence “does not question the credibility of the witnesses, but instead questions whether the uncontested facts were sufficient” to convict, “review is de novo”); People v. Smith, 191 Ill.2d 408, 411, 247 Ill.Dec. 458, 732 N.E.2d 513 (2000) However, defendant is actually asking this court to review the trial court's factual findings, based on the conflicting testimony between the police officers and the defense witnesses. As a result, this court must review the evidence in the light most favorable to the State. People v. Pryor, 372 Ill.App.3d 422, 309 Ill.Dec. 916, 865 N.E.2d 279 (2007). Thus, the issue presented is a question of fact and not of law, and the standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

“[A] reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt.” People v. Rowell, 229 Ill.2d 82, 98, 321 Ill.Dec. 765, 890 N.E.2d 487 (2008). A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to be given to each witness's testimony.

[349 Ill.Dec. 767 , 947 N.E.2d 781]

People v. Jackson, 232 Ill.2d 246, 281, 328 Ill.Dec. 1, 903 N.E.2d 388 (2009); People v. Ross, 229 Ill.2d 255, 272, 322 Ill.Dec. 574, 891 N.E.2d 865 (2008).

B. Evidence

A person commits the offense of being an armed habitual criminal if he “receives, sells, possesses, or transfers any firearm” after having been convicted of at least two triggering offenses. 720 ILCS 5/24–1.7 (West 2008). To establish guilt on a theory of constructive possession of a firearm, the State must prove: (1) that defendant had knowledge of the presence of the weapon; and (2) that defendant exercised immediate and exclusive control over the area when the weapon was found. People v. McCarter, 339 Ill.App.3d 876, 879, 274 Ill.Dec. 867, 791 N.E.2d 1278 (2003); People v. Bailey, 333 Ill.App.3d 888, 891, 267 Ill.Dec. 452, 776 N.E.2d 824 (2002). A trier of fact is entitled to rely on reasonable inferences of knowledge and possession. Smith, 191 Ill.2d at 413, 247 Ill.Dec. 458, 732 N.E.2d 513.

The evidence introduced by both the State and the defense showed that only defendant was in possession of the vehicle when the handgun was found. Gomez, a defense witness, testified that defendant was the permissive user of the vehicle after defendant dropped Gomez off at work, and there was no gun or anything other than an infant seat in the backseat of the vehicle at that point in time. The reasonable inference from Gomez's testimony is that the black bag, as well as the gun, must have been placed in the backseat after Gomez exited the vehicle.

The police testified that they observed no other people enter or exit the vehicle. However, defendant presented...