APPEAL from the Circuit Court of Peoria County; the Hon.
CALVIN R. STONE, Judge, presiding.
MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
The defendant, John Moore Williams, appeals from his conviction following a jury trial in the Circuit Court of Peoria County for unlawful use of a deadly weapon. He received a 5-year term of imprisonment. Three issues are presented for review: (1) whether the State proved the defendant's possession of the weapon beyond a reasonable doubt; (2) whether the court erred in failing to give both paragraphs of the circumstantial evidence instruction as tendered by the defendant; and (3) whether comments made by the prosecutor were unsupported by the evidence. We affirm.
The defendant was originally charged by indictment with several counts of pandering, intimidation, and unlawful use of weapons. The jury acquitted the defendant of all charges but the unlawful weapons count.
The basis of the unlawful-weapons count came from a lawful search of the premises located at 2130 N.E. Jefferson Street, Peoria, Illinois. Police recovered a double-barreled 16-gauge shotgun hidden under a mattress located in a second-floor bedroom. The second floor of the premises was arranged as a two-bedroom apartment, although it had no shower or stove. The first floor contained an office which was being remodeled. The defendant, who was not present in the apartment at the time of the seizure, was later arrested elsewhere. The officers dusted the gun in an attempt to lift any latent fingerprints, but they found none. The length of the gun barrel was 14 1/2 inches. Police also found in the apartment a letter addressed to the defendant at 905 West First Street. The letter was included in a bundle of approximately 100 letters addressed to other persons.
At trial, two alleged prostitutes testified for the State. The first, Pamela Thornton, stated she lived with Alice Weber and the defendant at 905 West First Street in March and April 1980. At the end of April, she, Weber, and the defendant moved into the upstairs apartment of 2130 Jefferson Street. Thornton and Weber worked as prostitutes in that building for approximately two weeks. Several times they took their clients into the apartment where the shotgun was located. Thornton observed the defendant handle the gun 10 or 11 times while at the Jefferson Street apartment. He kept the gun under a mattress in his bedroom.
Alice Weber, a 16-year-old prostitute, also saw the defendant handle the shotgun four or five times at the Jefferson Street apartment. She also admitted to handling it herself, along with Thornton and several other persons. Weber did not know who owned the gun. She only knew the defendant brought it home with him one day. According to her, the gun was kept either behind a couch or under the defendant's mattress.
The defendant offered the testimony of William Hensley, an agent of the lessor, who rented the building located at 2130 Jefferson Street to the Jerome Armstead Enterprises on May 1, 1980. A few days later, Hensley met with the defendant to discuss removing some partitions found on the first floor. According to Hensley, the second floor contained offices.
The defendant also adduced the testimony of Kelley Williams, the defendant's estranged wife. She told the court the defendant did not own the gun. She also stated she told Thornton to go to the police and falsify the story that the defendant forced them to become prostitutes. Thornton consented to the idea because she disliked the defendant. At that same time, however, Williams admitted she and Thornton worked as prostitutes at the First Street address, but kept that fact a secret from the defendant.
During the instructions conference, defense counsel objected to the State's instruction concerning circumstantial evidence, arguing that both paragraphs of Illinois Pattern Instructions, Criminal, No. 3.02 (1968) (hereinafter cited as IPI Criminal) be given. The court gave the State's instructions which included only the first paragraph.
Following closing arguments, the jury retired to deliberate. Several hours later, the court brought the jury into the courtroom and instructed them further about their inability to reach a verdict in accordance with People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601. Nearly five hours later, the jury returned a verdict of guilty on the unlawful use of weapons charge and acquitted him of the other charges.
The defendant first contends the State failed to prove the defendant's possession of the shotgun beyond a reasonable doubt. Illinois law is well established that possession need not be proved by actual physical possession; an accused may be shown to have possessed the contraband in question by establishing that the contraband was subject to his dominion and control. See also Ill. Rev. Stat. 1979, ch. 38, par. 4-2; People v. Matthews (1959), 18 Ill.2d 164, 163 N.E.2d 469.
• 1 The doctrine of constructive possession, usually found in narcotics cases but equally applicable to possession of unlawful weapons, requires the State to establish the defendant's knowledge of the presence of contraband and his immediate and exclusive control thereof. (People v. Nettles (1961), 23 Ill.2d 306, 178 N.E.2d 361.) In Nettles, the court further declared:
"* * * where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt." People v. Nettles (1961), 23 Ill.2d 306, 308-09, 178 N.E.2d 361, 363.
To support his contention, the defendant first submits that the evidence presented was insufficient to establish the defendant's control over the premises and that, as a consequence, the normally permissible inference of his possession cannot be made. Second, he argues that, assuming he had control of the ...