THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN C. ALSTON, Defendant-Appellant.
No. 2-97-0391
Second District
February 1, 1999
207
Defendant‘s conviction of possession of a stolen motor vehicle is a Class A misdemeanor rather than a Class 4 felony. Accordingly, we reverse defendant‘s sentence and remand the matter to the trial court so that it can resentence defendant for a Class A misdemeanor. The judgment of the circuit court of Kane County is otherwise affirmed.
Affirmed in part and reversed in part; cause remanded.
BOWMAN, P.J., and INGLIS, J., concur.
G. Joseph Weller, of State Appellate Defender‘s Office, of Elgin, and Frank J. Giampoli, of Law Offices of Frank J. Giampoli, Ltd., of Batavia, for appellant.
Michael P. Bald, State‘s Attorney, of Freeport (Martin P. Moltz, Assistant State‘s Attorney, of counsel), and Byron P. Mitchell, of Evanston, for the People.
Defendant, Steven C. Alston, was convicted of the unlawful use of weaрons (
Freeport police officer Craig Wainman testified that on the evening of September 8, 1995, he received reports that a patrol officer had seen an unfamiliar car in his area and that the registered owner had an outstanding warrant. Wainman soon came upon the suspect car. When he observed that the car‘s registration sticker was expired, he pulled it over.
Wainman asked for and received permission to search the car from the driver, Thomas Fort. Wainman had Fort and his three passengers get out of the car. Travoie Huggins was the passenger in the front seat, while dеfendant and Dion Embry occupied the backseat. At trial, Wainman could not recall on which side of the backseat defendant was sitting.
When Wainman opened the back door, he saw a pistol sticking out from the backseat. The gun had been wedged between the seat and the back, with the grip and trigger guard visible. It wаs loaded with twelve 9-millimeter shells in the magazine and one in the chamber. Wainman testified that the gun would have been between the backseat passengers and accessible to either one. Only about 12 inches separated the backseat passengers.
Officer Steven Stovall testified that he assisted with the traffic stop and subsequent search. Upon approaching the car, he heard the glove compartment close and saw a passenger reach underneath the front seat. Stovall later tested for fingerprints a weapon recovered from the car, but found none.
Detective James Drehoble testified that he found a 9 millimeter pistol under the front seat as well as a magazine and some loose 9 millimeter rounds. No fingerprints were found on either of the weapons recovered.
Defendant denied knowing about any weapons in the car. He got out of the car before Embry and Huggins, and the first timе he saw a gun in the car was just after Huggins got out.
The jury found defendant guilty and the court sentenced him to 18 months’ imprisonment. Defendant filed a posttrial motion and a notice of appeal on the same day. The following day, the trial court purportedly denied the posttrial motion.
Defendant first contends that the trial court erred in permitting the State to amend the information materially on the day of trial. Defendant contends that the insertion of the phrase “about his person” changed the State‘s theory of the case and therefore prejudiced him.
Initially, we note thаt defendant waived this issue for review. To preserve an alleged error for appeal, a defendant must both object at trial and include the alleged error in a written posttrial motion. People v. Cloutier, 156 Ill. 2d 483, 507 (1993). Here, defendant objected only generally at the time the State sought the amendment and did not attempt to artiсulate how he would be prejudiced. Moreover, defendant never properly included this issue in the posttrial motion he did file. Therefore, the issue is waived.
Even if we were to consider the merits of this issue, we would find it to be without merit. Defendant was charged in count I of an information with the unlawful use of weapons and in сount II with the unlawful possession of weapons by a felon. On the day of trial, the prosecutor moved to dismiss count II because he had learned that defendant‘s prior conviction was for a misdemeanor. The State also moved to amend count I by adding the phrase “about his person” to the descriptiоn of the offense. The court allowed the amendment.
An information may be amended at any time to correct formal defects.
Although cited by neither party, People v. Hester, 271 Ill. App. 3d 954 (1995), is similar to this case. There, the trial court permitted the prosecutor to amend the informatiоn to add “or on his land” to the allegation that defendant possessed a weapon “in his abode.” The appellate court held that the trial court did not abuse its discretion and noted that the amendment did not affect a material element of the offense, but merely provided two alternative meаns by which defendant could commit it. Therefore, defendant was not prejudiced. Hester, 271 Ill. App. 3d at 956.
Here, as in Hester, the amendment merely added an additional way by which defendant could commit the same offense and defendant was not prejudiced. It was clear all along that the State intended to charge defendant with possession of thе two guns found in the car. The amendment merely tracked more closely the language of the statute. Count II, which the State dismissed at the same time, always contained the allegation that defendant possessed the guns “about his person.”
Defendant‘s nonspecific allegations of prejudice are beliеd by the fact that he did not seek a continuance of the trial to prepare his defense. See People v. Coleman, 49 Ill. 2d 565, 569-70 (1971) (defendant not prejudiced by amendment to allege murder by asphyxiation in addition to murder by stabbing, particularly where defendant did not seek continuance to further prepare his defense). Thus, the trial court did not abuse its discretion by permitting the amendment.
Defendant next contends that the evidence was insufficient to prove his guilt beyond a reasonable doubt. Where a defendant challenges the sufficiency of the evidence, our review is limited to asking whether all the evidence, when viewed in the light most favorable to the prosecution, is sufficient to convince any rational trier of fact that the elements of the offense have been proved beyond a reasonable doubt. People v. Brown, 169 Ill. 2d 132, 152 (1996). It is not our function to retry the defendant. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). It is the jury‘s function to assess the credibility of the witnesses and the weight to be given their testimony. People v. Manning, 182 Ill. 2d 193, 210 (1998).
Here, the evidence was sufficient to prove that defendant constructively possessed the pistol found in the backseat of the car. It is undisputed that defendant and Embry occupied the backseat when the car was stopped. Immediately after they exited the car, Wainman
Although defendant was also charged with the possession of the gun found under the front seat, the parties’ briеfs give scant attention to this second gun. However, as defendant was charged with only one offense, evidence that he constructively possessed the gun in the backseat was sufficient to establish the elements of the offense beyond a reasonable doubt.
Defendant‘s final contention is that the court erred in giving the Illinois Pattern Jury Instruction on constructive possession. Defendant contends that the instruction does not accurately state the law because it does not inform the jury that defendant must have knowledge of the contraband.
Defendant has waived this issue by failing to specifically include it in his posttrial motion аnd by failing to tender an alternative instruction at trial. People v. Rissley, 165 Ill. 2d 364, 406 (1995). However, even if defendant had properly preserved the issue, we would find it to be without merit.
In criminal cases, where Illinois Pattern Jury Instructions contain an applicable instruction, the court should give it unless the court determines that the instruction does not accurately state the law. In determining the adequacy of the instructions, a reviewing court considers them as a whole to ascertain if they fully and fairly cover the law. People v. Novak, 163 Ill. 2d 93, 115-16 (1994).
The instruction the court gave stated in relevant part as follows:
“Possession may be actual or constructive. *** A person has constructive pоssession when he lacks actual possession of a thing but he has both the power and the intention to exercise control over a thing either directly or through another person.”
See Illinois Pattern Jury Instructions, Criminal, No. 4.16 (3d ed. 1992). It seems evident that one cannot intend to exercise control over a thing unless he or she knows about it. In any event, the next two instructions the court gave told the jury that a person commits the offense of unlawful use of weapons “when he knowingly possesses a pistol in a vehicle” and that to convict defendant, the State had to prove that “defendant knowingly possessed a pistol in a vehicle.” The instructions as a whole informed the jury that defendant could not be convicted of unlawful use of weapons unless he knew of the guns’ presence.
Affirmed.
INGLIS, J., concurs.
JUSTICE GEIGER, dissenting:
I respectfully dissent. I do not believe that the evidence presented by the State was sufficient to prove the defendant guilty beyond a reasonable doubt. For the offense of unlawful use of a weapon, the State was obligated to prove that the defendant knowingly carried or possessed a firearm “in any vehicle or concealed on or about his person.”
The majority asserts that the defendant‘s conviction can be upheld under the doctrine of constructive possession. Under that doctrine, the State may circumstantially prove the element of possession by establishing that the defendant had immediate and exclusive control over the area where the weapon was found. People v. Oden, 261 Ill. App. 3d 41, 47 (1994); People v. Williams, 98 Ill. App. 3d 844, 847-48 (1981). The defendant‘s exclusive control over the area must be such that his knowledge of the presence of the weapon may be inferred. People v. Givens, 46 Ill. App. 3d 1035, 1041 (1977). In accordance with this rulе, the jury in the instant case was instructed that constructive possession requires proof that the defendant intended to exercise control over the weapon. See Illinois Pattern Jury Instructions, Criminal, No. 4.16 (3d ed. 1992).
The evidence presented herein failed to establish the defendant‘s exclusive control over the area where the weapon was found or his intent to exercise control over the weapon. It was undisputed that the defendant did not own the car and was but one of four passengers. It is speculative to infer that the defendant intended to possess the weapon merely because he “oсcupied” the backseat where the weapon was found. Indeed, the weapon was found wedged into the crack of the backseat and was located halfway between the backseat passengers. The defendant specifically denied knowing that weapons were in the car and did not оbserve the pistol until the other backseat passenger exited the car.
Additionally, I believe that the majority‘s holding that constructive possession may be inferred by the mere “occupation” of the area in which the contraband is found is a broad extension of existing case
Here, the defendant could not have immediate and exclusive control over an automobile in which he was riding as a passenger. Certainly the defendant‘s mere presence in the backseat cannot support a legal inference that he was aware of the presence of the pistol and intended to exercise his control over it. See generally People v. Pugh, 36 Ill. 2d 435, 436-37 (1967) (mere presence in apartment at time contraband seized insufficient to establish constructive possession). Lacking any other evidence of the defendant‘s intent, I do not believe that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. I would therefore reverse his conviction.