4-96-0457 | Ill. App. Ct. | May 28, 1997
NO. 4-96-0457
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
ANTHONY J. LAUBSCHER, ) No. 95CF1120
Defendant-Appellant. )
) Honorable
) Harold L. Jensen,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
On March 12, 1996, following a bench trial in the
circuit court of Champaign County, defendant Anthony J. Laubscher
was convicted of unlawful use of weapons (720 ILCS 5/24-1(a)(4)
(West 1994)) and aggravated assault (720 ILCS 5/12-2(a)(1) (West
1994)). The trial court sentenced defendant to concurrent terms
of two years' probation on each count. Defendant appeals,
contending his conviction of unlawful use of weapons is against
the manifest weight of the evidence. We agree and reverse.
At trial, Chris Darvin testified he observed an
argument on September 10, 1995. He saw defendant arguing with
two young males, no older than 16 or 17, on the lawn area of an
apartment complex where Darvin resided. Darvin did not hear the
entire argument, but did hear defendant yell, "If you have a
problem with it, I got something for you." Darvin approached the
three and stood between one of the young males and defendant.
Defendant told Darvin to stand back. Defendant looked at Darvin
a couple of times but concentrated on the two young males.
Darvin concluded he was not going to break up the argument, so he
backed away. As he backed away, Darvin observed a gun protruding
from defendant's waistband. Darvin could see the pistol grip to
the firing mechanism. When Darvin noticed the gun, he was 7 to
10 feet from defendant. Darvin then removed the weapon from
defendant's waistband.
During this time, it was dark outside, but most of the
lights were on in the eight-unit apartment building. Defendant's
shirt was tucked into his blue jeans. Darvin had not seen
defendant at the apartment complex prior to the incident but had
seen defendant there since then. Other testimony established
defendant resided at the apartment complex where the incident
occurred and the weapon he carried was loaded. Defendant
presented no evidence.
The trial court concluded the handgun was a concealed
weapon and was intended to be concealed. The trial court
emphasized Darvin failed to notice the gun as he approached the
three individuals and while he was standing among them. In
addition, the trial court concluded the State negated the
statutory exceptions. The trial court noted testimony showed the
incident occurred on a public area of the apartment complex.
From this the trial court concluded the land could not be owned
by defendant or be his abode. The trial court concluded
defendant was not at his personal place of business from
testimony the incident occurred on a grassy area.
Following the trial court's denial of his post-trial
motion, defendant filed a notice of appeal. On appeal, defendant
first contends the uncontradicted evidence failed to establish he
was carrying a concealed weapon.
Section 24-1(a)(4) of the Criminal Code of 1961 (Code)
provides the following:
"(a) A person commits the offense of
unlawful use of weapons when he knowingly:
* * *
(4) Carries or possesses ***
concealed on or about his person
except when on his land or in his
own abode or fixed place of busi-
ness any pistol, revolver, stun gun
or taser or other firearm[.]" 720
ILCS 5/24-1(a)(4) (West 1994).
The statute requires only that the weapon be concealed from
ordinary observation, not that it be carried in a manner giving
no notice of its presence. People v. Gokey, 57 Ill. 2d 433" date_filed="1974-05-29" court="Ill." case_name="People v. Gokey">57 Ill. 2d 433, 437,
312 N.E.2d 637" date_filed="1974-05-29" court="Ill." case_name="People v. Gokey">312 N.E.2d 637, 639 (1974), citing People v. Euctice, 371 Ill.
159, 162, 20 N.E.2d 83" date_filed="1939-02-22" court="Ill." case_name="The People v. Euctice">20 N.E.2d 83, 85 (1939). Given the circumstances of
the case, whether defendant's weapon was concealed from ordinary
observation is an interesting question. Even though it was dark,
Darvin noticed a substantial portion of the handgun protruding
from defendant's waistband and immediately recognized it as a
handgun from 7 to 10 feet away. It is a question we need not
resolve, because the State failed to prove the requisite elements
of the unlawful use of weapons offense beyond a reasonable doubt.
Defendant cites People v. Anderson, 117 Ill. App. 3d
806, 454 N.E.2d 34" date_filed="1983-09-01" court="Ill. App. Ct." case_name="People v. Anderson">454 N.E.2d 34 (1983), and argues the State had the burden of
negating the exceptions within section 24-1(a)(4) of the Code.
The State, in its brief, apparently contends defendant had the
burden:
"[T]here was no need for the State to prove
that the defendant was not the owner of the
apartment complex or the land. Nor was there
any evidence suggesting that the defendant
was conducting business on the front lawn
when the incident occurred, thus dismissing
the need to present such evidence at trial."
(Emphasis added.)
We agree with the first district view stated in Anderson and
People v. Chmilenko, 44 Ill. App. 3d 1060" date_filed="1976-12-28" court="Ill. App. Ct." case_name="People v. Chmilenko">44 Ill. App. 3d 1060, 1062, 358 N.E.2d 1247,
1249 (1976): the exceptions in section 24-1(a)(4) of the Code
are a part of the substantive definition of the offense and are
elements that must be negated by the State beyond a reasonable
doubt in order to sustain defendant's unlawful use of weapons
conviction. The issues instruction for the offense sets forth
the exceptions as the second point to be proved as the offense
was charged. See Illinois Pattern Jury Instructions, Criminal,
No. 18.02, at 10 (3d ed. 1992).
Defendant argues the record shows the State made no
effort to negate the statutory exceptions. The State may meet
its burden of proof through reasonable inferences from the
evidence presented. See, e.g., People v. Navarrete, 258 Ill.
App. 3d 39, 44, 629 N.E.2d 742" date_filed="1994-02-04" court="Ill. App. Ct." case_name="People v. Navarrete">629 N.E.2d 742, 745 (1994) (on a reasonable doubt
challenge the first district found the prosecution met its
burden, where an officer testified his investigation revealed
defendant's address was not 1802 South Allport Street (thus
establishing defendant was not in his own abode) and defendant
was unemployed (precluding any possibility he was at his fixed
place of business); the court, however, made no express finding
defendant was not on his own land); People v. Proctor, 85 Ill.
App. 3d 190, 196, 406 N.E.2d 570" date_filed="1980-06-09" court="Ill. App. Ct." case_name="People v. Proctor">406 N.E.2d 570, 574-75 (1980) (third district
stated "defendant testified that he lived in West Peoria and
worked as a maintenance person for King's Park Mobile Estates.
It *** seems to be a reasonable inference that the defendant was
not the owner of the 801 Club").
In this case, the record shows defendant lived in the
apartment building on which property the incident occurred, and
the apartment building had eight apartments. The record also
shows the State cited People v. Wilson, 29 Ill. App. 3d 1033" date_filed="1975-06-16" court="Ill. App. Ct." case_name="People v. Wilson">29 Ill. App. 3d 1033,
1036, 332 N.E.2d 6" date_filed="1975-06-16" court="Ill. App. Ct." case_name="People v. Wilson">332 N.E.2d 6, 9 (1975), which found "[p]ublic areas in an
apartment building to which tenants and invitees have access are
not the 'abode' of any tenant."
There is nothing in the record indicating the land is
publicly owned. The trial court must have relied upon Wilson and
Darvin's testimony that the area upon which the argument occurred
is a common area used by tenants and invitees to conclude the
State negated the "on his land" exception. In Wilson, however,
the first district labeled areas of apartment buildings as public
for the purpose of negating the "abode" exception. Wilson, 29
Ill. App. 3d at 1036, 332 N.E.2d 6" date_filed="1975-06-16" court="Ill. App. Ct." case_name="People v. Wilson">332 N.E.2d at 9 (and cases cited therein).
Nothing on the record justifies the trial court's apparent
conclusion an area of an apartment deemed public for the purpose
of negating the "abode" exception should also be deemed publicly
owned for the purpose of negating the "on his land" exception.
Although it is not unreasonable for the State and the
trial court to assume defendant did not own the apartment
complex, allowing the court to draw an inference from that
assumption has the effect of turning the statute's exception into
a defense. This would improperly shift the burden of proof to
defendant. Although it is probable defendant did not own the
land, we find the evidence is not sufficient to negate that
exception, a requisite element of the offense, beyond a
reasonable doubt. We disagree with such cases as Navarrete and
Proctor insofar as they permit the trier of fact to infer the
negation of this element from the absence of evidence on it. We
thus reverse defendant's unlawful use of weapons conviction.
Reversed.
McCULLOUGH and GREEN, JJ., concur.