2011 IL App (2d) 100990
Ill. App. Ct.2011Background
- Scott was convicted of armed violence based on his possession of cannabis with intent to deliver and the shotgun found under a love seat in the living room.
- Police executed a search warrant at 217 Laurel, Unit A, North Aurora, entering with two entry teams and locating Scott on a couch near the firearms.
- The shotgun was found free and open under the love seat; its handle end was inches from the leg of the couch.
- Scott testified he had placed the shotgun under the love seat earlier and did not attempt to access it when police entered.
- At trial, the State admitted the predicate cannabis offense, establishing the felony predicate for armed violence; Scott argued he was not armed when police entered.
- The trial court rejected the motion for directed finding and ultimately held Scott guilty of armed violence and sentenced him to 12 years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Scott armed with a dangerous weapon when police entered? | Scott had the shotgun within arm's reach; proximity created armed status. | Armed status required immediate access or control at the time police entered; he lacked such access. | Yes; proximity and potential access sufficed to prove armed violence. |
| Does case law define 'armed' as requiring immediate access or timely control at the time of entry? | Case law allows armed status based on proximity and ability to access imminently. | Smith etc. require a moment when access was possible but not actual; he didn’t have that when officers arrived. | Armed status can be established by near, ready access in the relevant circumstances. |
| Is the lack of actual violence relevant to armed-violence conviction? | The statute deters using weapons in felonies; presence and access suffice regardless of violence. | Conviction should hinge on actual threat or attempt to use the weapon. | Not required; potential for violence suffices to sustain the conviction. |
Key Cases Cited
- Condon v. People, 148 Ill.2d 96 (1992) (armed means immediate access or timely control; mere presence not enough)
- Harre v. People, 155 Ill.2d 392 (1993) (imminent threat sufficient; weapons within reach establish armed violence)
- Smith v. People, 191 Ill.2d 408 (2000) (unloaded gun thrown away may negate armed status; depends on timing of access)
- Shelato v. People, 228 Ill.App.3d 622 (1992) (gun not immediately accessible to defendant defeats armed-violence conviction)
- Anderson v. People, 364 Ill.App.3d 528 (2006) (early access with dangerous weapon supports armed-violence verdict even without later use)
- Bond v. People, 178 Ill.App.3d 1020 (1989) (weapon within reach while seated can sustain armed-violence conviction)