THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALTER DAVIS, Defendant-Appellant.
No. 1-14-1787
Appellate Court of Illinois, First Judicial District, Third Division
March 29, 2016
2016 IL App (1st) 141787-U
JUSTICE HYMAN delivered the judgment of the court. Presiding Justice Pierce and Justice Neville concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from Circuit Court of Cook County. No. 12 CR 9307. The Honorable Charles P. Burns, Judge Presiding.
¶ 1 Held: Evidence was sufficient to prove beyond a reasonable doubt that defendant constructively possessed a firearm where a police officer testified he found the weapon on the backseat-floor of defendant‘s automobile in which defendant was the sole occupant. Trial court erroneously assessed “Trauma Fund Fine” where defendant was convicted of being an armed habitual criminal.
¶ 2 After a bench trial, the trial court found defendant Walter Davis guilty of one count of being an armed habitual criminal, one count of unlawful use of a weapon by a felon, and two counts of aggravated unlawful use of a weapon. The trial court merged the counts into a single
¶ 3 We find that the State presented sufficient evidence at trial to prove beyond a reasonable doubt that Davis had knowledge of and constructively possessed the firearm recovered from his car. As Davis does not contest that the State sufficiently proved his two prior felony convictions for eligible offenses, we also find the State proved him guilty of the offense of being an armed habitual criminal beyond a reasonable doubt. Finally, we find that the trial court‘s assessment of the trauma fund fee was erroneous. Accordingly, we vacate the fee and affirm the judgment of the circuit court of Cook County in all other respects.
Background
¶ 5 At trial, Chicago police officer Brian Burg testified that he was on patrol with a partner, Officer Zidak, in a marked police car at 1:50 a.m. on May 3, 2012. Burg saw a black Volvo at 1000 West 72nd Street, moving at a high rate of speed west along 72nd Street, and passing three stop signs without stopping. After the Volvo passed the first stop sign, the officers followed behind by about a block and a half to two blocks, and never lost sight of it. At 1440 West 72nd Street, the officers activated their police lights and the Volvo stopped. Burg and his partner approached the Volvo on foot. Davis was the driver and sole occupant. Zidak asked Davis for his driver‘s license and Davis responded that he did not have one. Zidak removed Davis from the car
¶ 6 The State also entered a certified record indicating that Davis owned a Volvo automobile, as well as certified records of Davis‘s conviction for the manufacture or delivery of a controlled substance and his conviction for unlawful use of a weapon by a felon.
¶ 7 Shauncey Jackson testified on Davis‘s behalf. Jackson lived at 1301 West 72nd Street and was an acquaintance of Davis‘s. She and her family were sitting on their front porch at 1:50 a.m. on May 3, 2012. She saw Davis stop at the intersection adjacent to her home and turn onto 72nd Street. Two men were with Davis, an individual in the front passenger seat and another in the rear. The man in front motioned to Davis and Davis stopped the car in front of Jackson‘s house. The two men got out and walked away. Davis rolled down his window and spoke with Jackson‘s family for 10 to 15 seconds before driving west. Seconds later a police car “c[a]me flying past” Jackson‘s home, turned on its police lights, and pulled Davis over a block away. Jackson also testified that she had been convicted of identity theft, a felony offense.
¶ 9 The trial court found Davis guilty of one count of being an armed habitual criminal, one count of unlawful use of a weapon by a felon, and two counts of aggravated unlawful use of a weapon. During its findings, the court said the case turned on the credibility of the witnesses. The court noted Jackson‘s prior conviction for identity theft and, as an acquaintance of Davis‘s, she had a motive, interest, or bias as to the outcome. The trial court found that Jackson‘s testimony was “incredible” and “flies in the face of my interpretation and my own common sense.” The court also called Davis‘s testimony “very, very vague.” Burg‘s testimony was credible. At sentencing, the trial court merged the counts into a single count of being an armed habitual criminal and sentenced Davis to seven and a half years’ incarceration. The trial court also assessed fines and fees totaling $429 after credit for time spent in custody, including a $100 “Trauma Fund Fine” under to
Analysis
¶ 12 Due process requires the State prove each element of a criminal offense beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004), citing In re Winship, 397 U.S. 358, 364 (1970). When reviewing the sufficiency of evidence, a reviewing court must decide “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.” (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 313 (1979); see also Cunningham, 212 Ill. 2d at 278. A reviewing court will not overturn a guilty verdict unless the evidence is “so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant‘s guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005). This court may not retry a defendant on appeal. People v. Milka, 211 Ill. 2d 150, 178 (2004). A reviewing court must resolve all reasonable inferences in favor of the prosecution. Cunningham, 212 Ill. 2d at 280.
¶ 13 The State is not required to produce physical evidence. People v. Herron, 2012 IL App (1st) 090663, ¶ 23. The positive and credible testimony of a single witness may support a criminal conviction. People v. Smith, 185 Ill. 2d 532, 541 (1999). A reviewing court must give due consideration to the ability of the trial court to see and hear the witnesses. People v. Ortiz, 196 Ill. 2d 236, 267 (2001). A fact finder‘s determination of a witness‘s credibility “is entitled to great deference but is not conclusive.” Cunningham, 212 Ill. 2d at 279. Where a conviction depends on eyewitness testimony, the reviewing court may find testimony insufficient “only where the record evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt.” Id.
¶ 14 An individual commits the offense of being an armed habitual criminal when “he or she receives, sells, possesses, or transfers any firearm” after being previously convicted two or more times of any of an enumerated list of felonies.
¶ 15 A defendant can actually or constructively possess a weapon. People v. Hannah, 2013 IL App (1st) 111660, ¶ 28. Constructive possession occurs when a defendant (i) knows a firearm is present; and (ii) exercises immediate and exclusive control over the area where the firearm is found. People v. Sams, 2013 IL App (1st) 121431, ¶ 10. Evidence of constructive possession is “often entirely circumstantial.” People v. Alicea, 2013 IL App (1st) 112602, ¶ 24. A defendant‘s control over the location where a weapon is found gives rise to an inference that the defendant knew of and possessed the weapon. People v. Spencer, 2012 IL App (1st) 102094, ¶ 17.
¶ 16 Taking the evidence in the light most favorable to the prosecution, the State proved beyond a reasonable doubt that Davis had constructive possession of a firearm. According to Burg, Davis was the driver and sole occupant of his automobile when the officers stopped him. The officers had followed Davis down 72nd Street for more than four blocks. During this time, Burg did not observe Davis stop and did not see any individual enter or exit. This testimony established that Davis had immediate and exclusive control over the car during and before the traffic stop. During the stop, Burg observed a handgun on the floor behind the passenger‘s seat. Davis‘s exclusive control over the car leads to the reasonable inference that he had knowledge of
¶ 17 We note that Davis‘s arguments on appeal rely largely on the presence of two passengers before the traffic stop. But, consideration of the alleged passengers becomes unnecessary if one rejects the testimony of Davis and Jackson. Both Davis‘s and Jackson‘s testimony directly contradict Burg‘s testimony. According to Jackson and Davis, Davis turned onto 72nd Street at the corner next to Jackson‘s home at 1301 West 72nd Street, where his two passengers got out. Burg‘s testimony, in contrast, placed Davis on 72nd Street three blocks east of Jackson‘s home. Contrary to the defense witnesses’ accounts, Burg stated he saw Davis drive for over four blocks without stopping, and without any passengers present. The trial court explicitly found Burg to be credible while finding Jackson‘s testimony incredible. It similarly dismissed Davis‘s testimony as vague. As there is nothing in the record which indicates the trial court‘s credibility analysis was unreasonable, we must defer to the trial court‘s credibility determinations. See Cunningham, 212 Ill. 2d at 279.
¶ 18 We also find Davis‘s arguments that the evidence of his knowledge was insufficient due to a lack of fingerprint evidence or inculpatory statements to be unpersuasive. The State need not present physical evidence (Herron, 2012 IL App (1st) 090663, ¶ 23), nor prove an individual‘s mental state through his or her own statements (see 38” court=“Ill. App. Ct.” date=“2015“>People v. Ford, 2015 IL App (3d) 130810, ¶ 38). As discussed, Officer Burg‘s testimony sufficiently supports the trial court‘s finding of constructive possession.
¶ 19 In arguing that knowledge of contraband is not presumed merely on the basis of a defendant‘s proximity to the contraband, Davis relies on the opinion in People v. Bailey, 333 Ill. App. 3d 888 (2002). There, the defendant was the passenger in another man‘s car when police officers found a gun beneath the defendant‘s seat. Id. at 890-91. The gun was not visible to the defendant and he made no movements when approached by officers. Id. The appellate court considered four factors in finding insufficient proof that the defendant knew of the firearm‘s presence: (i) the weapon‘s visibility from defendant‘s position in the car, (ii) length of time in which the defendant had an opportunity to see the weapon, (iii) any gestures by the defendant indicating an effort to retrieve or hide the weapon, and (iv) the weapon‘s size. Id. at 891-92. The court‘s list of factors was not exclusive. Id. Not all of those factors are as instructive here. Davis was the sole occupant and owner. We note that we have already considered those factors in Bailey that we find particularly relevant in Davis‘s case: the weapon‘s size and visibility.
¶ 20 Davis also analogizes his case to People v. Seibech, 141 Ill. App. 3d 45 (1986). In Seibech, the appellate court reversed defendant‘s conviction for unlawful use of a weapon because it found the State did not prove the defendant had knowledge of the rifle found on the floor behind the driver‘s seat of defendant‘s car. Id. at 46, 50. The defendant testified at trial that he had driven two hunters home on the day he was arrested and did not know the rifle had been left in the car. Id. at 47. One of the hunters corroborated the defendant, testifying that he had been in a hurry when the defendant dropped him off, and in his haste, he forgot his weapon. Id. at 48. While in the current case Davis and Jackson did provide an alternative explanation for the
¶ 21 Taking the evidence in the light most favorable to the State, we find that a reasonable fact-finder could rationally conclude beyond a reasonable doubt that Davis knew of the firearm‘s presence, and thus constructively possessed it. Because Davis does not contest that the State proved he has the requisite prior convictions, we find the State proved Davis guilty of being an armed habitual criminal beyond a reasonable doubt.
¶ 22 Davis next contends, and the State concedes, that the trial court erroneously assessed the trauma fund fine against Davis. We note that Davis asserts that his fees are void, and may therefore be challenged at any time, citing People v. Dalton, 406 Ill. App. 3d 158, 162 (2010). After People v. Castleberry, 2015 IL 116916, ¶ 19, this rule no longer applies. On appeal, however, the reviewing court may modify the fines and fees order without remand to the circuit court.
¶ 23 Affirmed in part; fee vacated.