APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
WHITE, Judge, presiding.
MR. JUSTICE PUSATERI DELIVERED THE OPINION OF THE COURT:
Defendant, Clifford Janis, was co-indicted with John Mikosz and Walter Bogacz for theft, unlawful possession of a motor vehicle, attempt burglary and possession of burglary tools. Defendant was also indicted for unlawful use of weapons and for unlawful use of weapons within five years of his conviction for burglary. Bogacz died prior to trial. At the close of the State's case-in-chief, the trial court dismissed the four charges against Mikosz and discharged him. The court dismissed the three counts charging theft, unlawful possession of a motor vehicle and attempt burglary against defendant Janis. At the conclusion of the bench trial, defendant was convicted of possession of burglary tools and unlawful use of weapons under the enhanced penalty provision. (Ill. Rev. Stat. 1971, ch. 38, pars. 19-2, 24-1(a)(4) and 24-1(b).) He was sentenced to a prison term of one to three years for possession of burglary tools to run concurrently with his sentence of two to six years for unlawful use of weapons.
In this appeal, defendant challenges the sufficiency of the evidence to convict him of possession of burglary tools and unlawful use of weapons. He also contends that his conviction for unlawful use of weapons should be reversed because it was grounded on a statutory presumption which was not applicable to a prosecution under section 24-1(a)(4) of the Criminal Code. He further urges that, to the extent such presumption was applicable, it is unconstitutional.
On July 21, 1973, at about 1:15 a.m., Chicago police officers Donald Drake and Michael Rogers responded to a silent burglar alarm at 2352 West North Avenue, in Chicago, which was Laperal Drugs. They were in an unmarked car. The area behind the building was deserted except for a recreational van containing defendant with his co-defendants. Officer Drake testified that when he first saw the van, defendant was sitting behind the wheel. Officer Rogers testified that when he first observed defendant, he was getting into the driver's seat.
The police announced their office and ordered the three individuals out of the van. Defendant told the officers that the reason they stopped was that one of the men had to urinate. When the police asked for the vehicle registration, defendant walked to the passenger side and got it out of the glove compartment. The registration was in the name of Donald Mercer. Defendant told the police that Mercer was his friend and that he borrowed the vehicle for the night. Investigation disclosed that no one by that name lived at the address listed on the registration.
As Officer Drake walked toward the van with defendant, he noticed a pair of bolt cutters protruding from under the seat behind the driver's seat. It began to rain so the police ordered the three men into a common hallway to continue the investigation. The common hallway led from an outer door to various doors of other establishments, including the rear steel door of Laperal Drugs. Just inside the common hallway there was a wooden door with pry marks. After observing these pry marks, the officers arrested the three men. Officer Drake searched the van and under a tarpaulin, found 200 pounds of burglary tools, namely, a sledge hammer, pry bars, bolt cutters, wrenches, tools that were cut in the shape of keys, lock pullers, a pen light, and three pairs of gloves.
Officer Rogers testified that he recovered a gun concealed in a glove from the van. There was a conflict in his testimony as to whether he found the gun on the dashboard or on the "motor mount" between the two front seats. Officer Drake testified that the gun was unloaded. Just before the officers transported the men to the police station, they observed the man from the alarm company at the scene.
Maria Livermore, the pharmacist and co-owner of Laperal Drugs, went to the store about 3 a.m. on July 21, 1973, after the alarm company had called her. At that time, she found everything in the drug store in order. When she returned at 9 a.m. to start the next business day, she had trouble opening the rear metal door. When she finally forced the door open, she found a crowbar and some marks on the door. This metal door led into the common hallway where the police previously observed the wooden door exhibiting pry marks. Ms. Livermore testified that the alarm system was attached only to the back steel door of the pharmacy.
1 Defendant's first contention is that the State's evidence was insufficient to prove him guilty of the offense of possession of burglary tools. In People v. Faginkrantz (1960), 21 Ill.2d 75, 171 N.E.2d 5, the court set out the material elements of this offense. The prosecution must prove "(1) that the tools are adapted and designed for breaking and entering; (2) that the defendant possessed them with the knowledge of their character; and (3) that he intended to use them for breaking and entering." 21 Ill.2d 75, 79.
Defendant does not dispute that the tools might be characterized as burglary tools. He does contend that the evidence was insufficient to show he possessed them. The State argues that the defendant was in the immediate and exclusive control of the van and was, therefore, in constructive possession of the tools. Defendant replies that when there is no direct evidence that something was in his possession and others had access thereto, the probabilities that defendant may have possessed it are insufficient to convict.
In People v. O'Neal (1st Dist. 1975), 35 Ill. App.3d 89, 341 N.E.2d 36, this court discussed the doctrine of constructive possession:
"It is unnecessary to prove a defendant's ownership of a contraband article or the ownership of the place where it is kept in order to establish constructive possession. (See People v. McKnight (1968), 39 Ill.2d 577, 237 N.E.2d 488.) A person may be in constructive possession of the article if it is located in a place under his immediate and exclusive control. (People v. Beford (1966), 78 Ill. App.2d 308, 223 N.E.2d 290.) Mere presence in the vicinity of the contraband is not enough to show constructive possession, but control over its location gives rise to such an inference. (People v. Kissinger (1975), 26 Ill. App.3d 260, 325 N.E.2d 28.) The presence of other persons in the vicinity does not necessarily undermine this inference. (People v. Cogwell (1972), 8 Ill. App.3d 15, 288 N.E.2d 729.) Contraband will be considered to be sufficiently accessible to a defendant if it is within his easy reach and that of other persons who may be present. People v. Bell (1972), 7 Ill. App.3d 625, 288 N.E.2d 253." 35 Ill. App.3d 89, 91.
2 The evidence justified the conclusion of the trial court, whose duty it was to determine the credibility of the witnesses and the weight to be given their testimony, that defendant was in possession of the burglary tools. The police saw defendant sitting in the driver's seat or getting into the driver's seat. Of the three men, defendant was the one who got the vehicle registration from the glove compartment. It was defendant who held himself out to be in possession of the van by telling the police that he borrowed it for the night, and it was the defendant who gave the officers the reason for their stopping in the lot. The fact that the evidence did not show that defendant was the owner of the van, that defendant had the keys, or that the keys were in the ignition, does not persuade us to ignore the other incriminating evidence.
In the cases which defendant cites, People v. Jackson (1961), 23 Ill.2d 360, 178 N.E.2d 320, and People v. Evans (1st Dist. 1966), 72 Ill. App.2d 146, 218 N.E.2d 781, the evidence did not show that defendant had control over the area in which the contraband was found. In the instant case, the evidence leads to the conclusion that defendant had a familiarity with the contents of the van and control over it. We further find that the ...