People v. Wise

• Decision Date: 15 April 2021
• Docket Number: Docket No. 125392
• Citation: 450 Ill.Dec. 844,2021 IL 125392,182 N.E.3d 656
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Charles P. WISE, Appellee.
• Court: Illinois Supreme Court

2021 IL 125392

182 N.E.3d 656

450 Ill.Dec. 844

The PEOPLE of the State of Illinois, Appellant,

v.Charles P. WISE, Appellee.

Docket No. 125392

Supreme Court of Illinois.

Opinion filed April 15, 2021.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Michael M. Glick and Eldad Z. Malamuth, Assistant Attorneys General, of Chicago, of counsel), for the People.

James E. Chadd, State Appellate Defender, Thomas A. Karalis, Deputy Defender, and Steven Varel, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Ottawa, for appellee.

OPINION

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

¶ 1 Section 24-1.1(a) of the Criminal Code of 2012 (Code) ( 720 ILCS 5/24-1.1(a) (West 2014)) makes it unlawful for a person who has been convicted of a felony in any jurisdiction to knowingly possess a firearm "on or about his person or on his land or in his own abode or fixed place of business." At issue in this appeal is whether the State proved defendant guilty of violating this section beyond a reasonable doubt when the evidence showed that a police officer found a gun near one of the passengers in the third row of a minivan that defendant happened to be driving. For the following reasons, we conclude that the State did not prove defendant's guilt beyond a reasonable doubt. Therefore, we affirm the appellate court's judgment.

¶ 2 BACKGROUND

¶ 3 In June 2015, shortly after 4 p.m., a police officer was driving a squad car on a highway in Henry County, Illinois, when a minivan sped past him in the opposite direction. The officer's radar unit showed that the van was traveling roughly 20 miles per hour over the speed limit. Using the next turnaround, the officer caught up with the minivan and conducted a traffic stop. Three occupants were seated inside the van: one sat in the driver's seat, another in the front passenger seat, and the third in the "very back" rear passenger seat. The driver, defendant Charles Wise, conceded that he had been speeding.

¶ 4 As the officer spoke with defendant, he detected the odor of burnt cannabis emanating from the van. The officer called for backup. After a second officer arrived, they conducted a probable cause search of the vehicle. The first officer found a firearm and two rounds of ammunition "in the rear passenger compartment [in] kind of like [a] little cupholder armrest, inside a glove." The gun was not in plain view before the officer moved the glove. Upon a search of defendant's handbag, the officer also found a large amount of prescription pills. On June 18, 2015, prosecutors charged defendant with unlawful possession of a firearm by a felon in violation of section 24.1-1(a) of the Code (id. ) and unlawful possession of a substance containing oxycodone in violation of section 402(c) of the Illinois Controlled Substances Act ( 720 ILCS 570/402(c) (West 2014)). Defendant pled not guilty and waived his right to a jury trial.

¶ 5 The trial court conducted a bench trial in March 2016. The prosecution entered into evidence a certified copy of defendant's conviction for first degree burglary in Iowa from July 1995.

¶ 6 After recounting the details of the traffic stop, the officer testified that defendant told him that his brother owned the minivan. The officer further testified that defendant told him that he knew the gun was in the vehicle. According to the officer, defendant stated that the gun belonged to a friend of his who also borrowed the minivan from defendant's brother. The two passengers in the minivan, Jeffrey Montgomery and Jerry Horne, informed the officer that the gun did not belong to defendant.

¶ 7 The officer estimated that the gun was 5 to 10 feet away from defendant while he was in the driver's seat. The officer did not think it was possible for defendant to reach the gun from the driver's seat. Rather, Horne was seated closest to the firearm. The officer acknowledged that he never saw defendant hold the gun. He also did not think that the crime lab ever fingerprinted the weapon to determine whether defendant's fingerprints were on it. The officer further testified that defendant told him that he had had back surgery and that a physician prescribed the pills that the officer found.

¶ 8 After the State rested, defendant moved to dismiss the charge of unlawful possession of a firearm by a felon, arguing that the State failed to allege an element of the offense. Defendant noted that section 24-1.1(a), in relevant part, prohibits a felon from possessing a firearm on or about his person. Given where the gun was in relation to defendant when the officer stopped him, defendant contended that the State had not proven that the gun was on or about his person. The trial court denied his motion.

¶ 9 The trial continued, and Wade Burrell testified as the defense's first witness. He explained that he borrowed defendant's brother's minivan several times to run errands because it had "[g]reat storage space." Burrell testified that he owned the firearm at issue. He purchased it from a sports store in Iowa, and his receipt for the weapon was admitted into evidence. According to Burrell, he left the gun in defendant's brother's van sometime in May 2015. He placed it in a glove away from the driver's seat because, although he possessed a valid Firearm Owner's Identification Card, he did not have a concealed carry permit. According to Burrell, a sales associate at the sports store told him that the weapon needed to be "out of [his] reach" as he traveled. Burrell testified that he left the gun in the minivan without retrieving it for several weeks. Because he had another weapon at his residence, he "didn't think of it."

¶ 10 Montgomery, one of the passengers in the minivan, testified that he, defendant, and Horne had traveled from Iowa to Kentucky to visit Montgomery's family. According to Montgomery, aside from the first 20 miles when Horne drove, defendant drove the rest of the trip. Montgomery denied knowing about the gun that was in the glove. Further, Montgomery testified that he heard defendant tell the officer that defendant did not know about the gun's presence.

¶ 11 Upon taking the witness stand, defendant explained that he traveled with two friends from Iowa to Kentucky and back. Defendant testified that, aside from the first 10 or so minutes of the trip, he drove the minivan. An officer stopped him for speeding in Illinois, which defendant acknowledged was accurate. However, defendant testified that he "had no idea" that the firearm was in the van. He assumed that the gun belonged to Burrell because he earlier told defendant that he had bought two pistols from a sports store and Burrell at times borrowed the van from defendant's brother. Defendant testified that he had never touched the firearm because he did not know that it was in the vehicle. And though he placed his bags in the trunk, defendant stated that he never sat in the third-row area where the gun was located. Defendant separately explained that he takes various prescription medications to treat conditions such as high blood pressure, diabetes, depression, and chronic back pain.

¶ 12 The trial court noted that defendant admitted to speeding; therefore, it found him guilty of that offense. On the charge of unlawful possession of a weapon by a felon, the trial court determined that Burrell's testimony that he purchased the gun, but then left it in defendant's brother's minivan, was "absurd." The court also stated that Montgomery testified that defendant "was back where the gun was" during the period that Horne drove. The court further credited the officer's testimony that defendant stated he knew the gun was in the van. Accordingly, the trial court determined that the State had met its burden of proving defendant guilty of unlawful possession of a weapon by a felon. However, the court concluded that reasonable doubt existed as to whether defendant had a valid prescription for the pills; therefore, it found him not guilty of that offense.

¶ 13 One month later, defendant filed a motion in arrest of judgment. He claimed that the State did not allege that he possessed the weapon on or about his person or in his own abode or fixed place of business, as required by the statute. A failure to allege an element of the offense, defendant insisted, was a fundamental defect that rendered the complaint void. Defendant also moved the trial court to reconsider its finding of guilt on the charge of unlawful possession of a weapon by a felon, noting that the weapon was not immediately accessible to him and that he did not have immediate and exclusive control over the area where it was found. The trial court denied defendant's motions. On March 31, 2017, the trial court sentenced defendant to two years’ imprisonment and one year of mandatory supervised release.

¶ 14 On appeal, the court noted that under section 24-1.1(a) of the Code " ‘[i]t 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.’ " 2019 IL App (3d) 170252, ¶ 14, 435 Ill.Dec. 614, 139 N.E.3d 686 (quoting 720 ILCS 5/24-1.1(a) (West 2014)). It further noted that this court had not yet construed the meaning of "on or about his person" under section 24-1.1(a) of the Code. Id. ¶ 15. That said, the appellate court observed that this court had defined "on or about his person" under predecessor provisions of a similar section of the Code as meaning that the firearm is on the person or " ‘in such close proximity that it can be readily used as though on the person.’ " Id. ¶ 21 (quoting People v. Liss , 406 Ill. 419, 422, 94 N.E.2d 320 (1950), and citing People v. Niemoth , 322 Ill. 51, 52, 152 N.E. 537 (1926) (" ‘[a]bout his person’ means sufficiently close to the person to be readily accessible for immediate use")). The appellate court saw "no reason to give the phrase a different...