People v. Wise

• Decision Date: 18 September 2019
• Docket Number: Appeal No. 3-17-0252
• Citation: 435 Ill.Dec. 614,139 N.E.3d 686,2019 IL App (3d) 170252
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles P. WISE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (3d) 170252
139 N.E.3d 686
435 Ill.Dec. 614

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Charles P. WISE, Defendant-Appellant.

Appeal No. 3-17-0252

Appellate Court of Illinois, Third District.

Opinion filed September 18, 2019

JUSTICE McDADE delivered the judgment of the court, with opinion.

139 N.E.3d 688

435 Ill.Dec. 616

¶ 1 Defendant was charged with several offenses and, pertinent to this case, was found guilty of unlawful possession of a weapon by a felon. The trial court based its verdict on testimony that defendant was aware that the gun was in the vehicle and that, at some point, defendant was seated near the firearm. On appeal, defendant argued that the State failed to prove beyond a reasonable doubt that the firearm was "on or about his person" as required by the offense charged. We agree and vacate defendant's conviction.

¶ 2 I. BACKGROUND

¶ 3 On June 18, 2015, defendant Charles Wise was charged with unlawful possession of a weapon by a felon under section 24-1.1(a) of the Criminal Code of 2012 (Criminal Code) ( 720 ILCS 5/24-1.1(a) (West 2014)) and unlawful possession of a controlled substance under section 402(c) of the Criminal Code ( 720 ILCS 570/402(c) (West 2014)). He was also charged with an open alcohol container violation and with a speeding violation. On June 19, 2015, Wise posted bond and was released from custody. A bench trial commenced in March 2016. The State introduced into evidence a certified copy of Wise's prior Iowa felony conviction of burglary.

¶ 4 The State also presented Illinois State Police Trooper Edwin Shamblin, who testified as follows. On June 18, 2015, he pulled over a 2005 Dodge Caravan minivan for speeding on I-74 in Henry County, Illinois. The inside of the van consisted of three rows of seats and a rear cargo area. The first row had two "bucket" seats, and the second and third rows had bench seating. At the time of the stop, Wise was in the driver's seat, Darnell Montgomery was in the passenger seat, and Jerry Horne was in the third row on the passenger side. After he smelled a "strong odor of burnt cannabis," Shamblin decided to search the vehicle and discovered two black gloves lying in the third seating row near Horne. Shamblin moved one glove and dislodged a Derringer .357 firearm, which had been inside of it. The gun was completely obscured from view before Shamblin moved the glove. Shamblin believed that the gun was located about 5 to 10 feet away from the driver's seat where Wise was sitting, and he did not think it was possible for Wise to reach the gun from the driver's seat. Shamblin arrested Wise and read him Miranda warnings. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Shamblin further testified that Wise agreed to speak with him and told Shamblin that he knew the firearm was in the van but it was not his; it belonged to his friend Wade Burrell, who sometimes borrowed the van. Burrell purchased the gun at Gander Mountain in Cedar Rapids, Iowa, about three months earlier.

¶ 5 The State rested, and the defense presented several witnesses to testify. Burrell testified that he was the owner of the .357 Derringer firearm found inside the van on the night in question and he had legally purchased the gun at Gander Mountain for $400. He borrowed the van from Wise's brother, Johnny, on May 20, 2015, to run some errands and took the gun with him for his protection. Although he had a valid permit to purchase weapons, he did not have a concealed carry permit. Because of this, he was advised by a Gander Mountain store employee to store the gun as far away from him as possible when traveling with the gun so that it was out of reach. When he borrowed the van on May 20, he placed the gun inside one of the gloves lying in the van and laid the glove in the back seat of the van so that it would

139 N.E.3d 689

435 Ill.Dec. 617

be out of reach and out of sight while he was driving. He returned the van to Johnny the same day but forgot to take the gun from the van. Burrell never retrieved the gun and forgot that he left the gun in the van. The receipt for the gun purchase was admitted into evidence.

¶ 6 Wise testified that he had taken a trip to Louisville, Kentucky, and was returning to Cedar Rapids, Iowa, when he was stopped by the police for speeding. He was driving a van he had borrowed from his brother, Johnny. Horne drove for about 10 minutes into the trip, and Wise drove the remainder of the trip. Wise stated that he did not know that the gun was in the van, and he denied telling Shamblin that he knew the gun was in the van. Wise was physically disabled, and his health issues included diabetes, high blood pressure, chronic back pain, and depression. He took multiple medications for his conditions.

¶ 7 Montgomery testified that he, Wise, and Horne were leaving Louisville and traveling to Cedar Rapids on June 18. Horne drove the first 20 miles, and thereafter, Wise drove the remainder of the trip. Montgomery testified that, when the police stopped the van, he was seated in the passenger seat, Horne was seated in the back seat, and Wise was in the driver's seat driving the van.

¶ 8 The trial court found Wise guilty of speeding and unlawful possession of a weapon by a felon and acquitted him of the remaining charges. The basis for the guilty verdict on the gun charge was unlawful possession of a weapon by a felon. The trial court based its verdict on Shamblin's testimony that Wise knew the gun was in the van and the witnesses' testimony that Wise had sat in the back seat near the gun for 10-20 minutes at the beginning of the trip. The court did not believe Burrell's testimony that he mistakenly left the gun in the van and forgot about it for two weeks. The trial court sentenced Wise to two years imprisonment and one year of mandatory supervised release on the unlawful possession of a weapon by a felon conviction. In the court's written order, Wise received credit for one day of presentence incarceration. Wise appealed his conviction.

¶ 9 II. ANALYSIS

¶ 10 A. Sufficiency of the Evidence

¶ 11 Wise argues that the State failed to prove beyond a reasonable doubt that the gun was "on or about his person" as required under the unlawful possession of a weapon by a felon statute. Wise claims that Illinois courts have established that a weapon is "on or about" a person when the weapon is within arm's reach of the accused and that, in this case, the gun was not within his reach when he was pulled over in Illinois. Wise also argues that his interpretation is supported by the legislature's decision to exclude the "on or about his person" language from similar provisions that exclude general unlawful possession, actual and constructive, of firearms.

¶ 12 The State argues that the "on or about his person" language in section 24-1.1(a) is not limited to possession within the accused's reach but expands the scope of possession where the accused has possession of a firearm in an area that is under his exclusive control. The State alleges that Wise's interpretation renders the "about his person" language superfluous because it essentially carries the same meaning as "on his person."

¶ 13 A criminal conviction will not be set aside unless the evidence is so improbable and unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins , 106 Ill. 2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985).

139 N.E.3d 690

435 Ill.Dec. 618

When presented with a challenge to the sufficiency of the evidence, it is not the function of this court to retry the defendant. Id. The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. Determinations of witness credibility, the weight given to the testimony, and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact, not the reviewing court. People v. Pollard , 2015 IL App (3d) 130467, ¶ 26, 393 Ill.Dec. 231, 33 N.E.3d 975.

¶ 14 Section 24-1.1(a) of the Criminal Code states, "It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any * * * firearm * * * if the person has been convicted of a felony * * *." 720 ILCS 5/24-1.1(a) (West 2014).

¶ 15 The parties dispute the meaning of "on or about his person" under section 24-1.1(a). Our supreme court has not construed the meaning of this phrase under section 24-1.1(a); however, several districts of the Illinois Appellate Court have interpreted it. The court in People v. Rangel , 163 Ill. App. 3d 730, 114 Ill.Dec. 781, 516 N.E.2d 936 (1987), held that a gun found in a vehicle, rather than on the defendant's body, could constitute being "on or about his person" under section 24-1.1. In Rangel , the police responded to a call from a woman stating that the defendant had threatened to kill her with his gun. Id. at 732, 114 Ill.Dec. 781, 516 N.E.2d 936. As the police were searching the apartment building where the incident occurred,...