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People v. Bean

OPINION FILED OCTOBER 12, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICHARD BEAN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ARTHUR A. SULLIVAN, JR., Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Defendant, Richard Bean, was convicted of unlawful use of weapons (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4)) after a bench trial in the circuit court of Cook County, and he was sentenced to the Department of Corrections for a term of 8 months. The issue presented for review is whether he was proved guilty beyond a reasonable doubt.

We affirm.

At trial, Officer Dwyer testified that at about 3 or 4 p.m. on March 2, 1977, while on patrol, he talked to a man standing in front of a men's clothing store at 2016 East 71st Street. The man, an employee of the store, told him defendant was inside with a gun and pointed to defendant through the window.

Officer Dwyer went into the dressing area of the store, announced his office and conducted a patdown search of defendant, who was standing partially concealed in a dressing booth. As he was conducting the search, Officer Dwyer testified defendant asked the store employees, "[W]hy did you call the police? I told you I only had the piece for my own protection. I told you I wasn't going to stick you up. That's why I showed you the gun and that's why I left it in my coat."

The officer did not find the weapon either on defendant's person or in the clothes in the dressing booth. Defendant then approached a coat hanging about 10 feet from the dressing area and came within about 4 feet of it. The officer advised him he would have to search it first and found a snub-nosed .38-caliber pistol in the coat pocket. He placed defendant under arrest and advised him of his constitutional rights. The officer testified that in order to leave the store one could have walked down the aisle, and it was not necessary to walk by the hook where the coat was.

Defendant testified that after he was searched by the officer and walked out of the dressing booth, one of the sales people pointed toward a coat hanging on a rack about 25 feet from the dressing booth and about 15 feet from where he was standing and said, "over there." The officer then asked him if he had worn a coat, and defendant said he had not. He testified that March 2, 1977, was a hot day. Defendant denied telling the store personnel that he had a pistol with him and denied owning the brown leather coat where the gun was found.

The police officer was recalled and testified that after arresting defendant and advising him of his rights, he asked defendant whether he wanted the coat inventoried or whether he wanted to take it to the lockup with him, and defendant said he would take it with him.

In finding defendant guilty, the court made an explicit finding that the gun was accessible, being just 4 feet from defendant according to the officer's testimony.

Defendant now contends the State failed to prove him guilty beyond a reasonable doubt, arguing the gun was not readily accessible. Section 24-1(a)(4) provides in relevant part:

"(a) A person commits the offense of unlawful use of weapons when he knowingly:

(4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm." Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(4).

In People v. Niemoth (1926), 322 Ill. 51, 53, 152 N.E. 537, relied on by defendant, the court articulated the applicable standard:

"Before there can be a conviction under the statute prohibiting the carrying of fire-arms concealed on or about the person there must be proof that the fire-arm is carried in such a manner as to give no notice of its presence and in such proximity of ...


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