Appeal from the Circuit Court of Jackson County; the Hon.
Richard E. Richman, Judge, presiding.
PRESIDING JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
On October 20, 1982, the defendant, Tracey Ivy, was charged by a two-count information with the offenses of unlawful use of weapons and aggravated assault. The charges arose out of an incident that occurred at her apartment in Carbondale on October 19, 1982. Following a bench trial the defendant was convicted of both offenses and sentenced to 12 months' probation on each count, with the sentences to run concurrently. The defendant was also fined $100 on the weapons conviction and ordered to pay costs on both counts. On appeal from this conviction and sentence, the defendant contends that the evidence failed to show that she "knowingly" possessed the illegal weapon for purposes of the unlawful-use-of-weapons charge and that there was no showing of the "reasonable apprehension of receiving a battery" element necessary for the aggravated assault charge. In addition the defendant asserts that the court abused its discretion in ordering her to pay a fine without a showing of her financial ability to do so. We affirm.
At trial, complaining witness Denise Sheehan testified that on the date in question, she and two of her roommates, Christy St. John and Cheryl Frost, went to the defendant's apartment for the purpose of collecting some money that the defendant owed them. When they arrived at the apartment, they knocked on the door and were allowed in by a young man who told them that Tracey was in the bathroom. After going to the back of the apartment and apparently talking to the defendant for a few minutes, the man then left the apartment. A few minutes later the defendant emerged from the back of the apartment. Ms. Sheehan asked the defendant to pay her the money that she owed to Ms. Sheehan, and the defendant replied that she would pay Ms. Sheehan when her loan came through. The amount of this debt, which resulted from the defendant's subletting an apartment from Ms. Sheehan, was $113.
An argument developed between the defendant and Ms. Sheehan, and the defendant asked the three young women to leave. The defendant repeated this request and opened the door of the apartment to encourage their leaving. When the three persisted in their efforts to settle the debt, the defendant stated that she would "blow you away, girl" and walked over to a bed in the apartment, where she bent down and pulled a duffel bag out from underneath the bed. The defendant raised the bag and pointed it at Ms. Sheehan.
The defendant then repeated both her request that the women leave and her threats to "blow you [Ms. Sheehan] away." The defendant continued to move closer to Ms. Sheehan until they were about three feet apart and the duffel bag was pointed at Ms. Sheehan's face. Ms. Sheehan stated that she "wasn't paying much attention" to what the defendant was pointing at her until she noticed that her friends were backing away and that their faces showed fear. At this point, she stated, she "really thought about what was happening [and] decided [she had] better get out of there." The three women then left and ran to the police station on foot, although they had a car parked outside. Ms. Sheehan testified that she left because she "felt threatened" and that the duffel bag had been pointed at her for at least three minutes before she decided to leave.
During her testimony Ms. Sheehan identified a blue nylon duffel bag produced by the State as the bag that the defendant had retrieved from under the bed and pointed at her. Ms. Sheehan stated that she did not see the contents of the bag and that no item was ever removed from it, but that the bag was "draped over" something inside it and that it was an item with some bulk because the defendant had difficulty pulling it out from under the bed. The bag was later found to contain a 20-gauge single-shot shotgun with a barrel measuring 15 7/8 inches.
Cheryl Frost also testified for the prosecution that during the incident in question the defendant "kept pointing [the duffel bag] right at [Ms. Sheehan's] head" and that she "had it really close to her." The bag was "wrapped loosely" around whatever was inside. While Ms. Frost did not see the object in the duffel bag, she knew that it was something metal because when the defendant pulled it out from underneath the bed, it hit the bed frame and "klinked." Ms. Frost testified that during the argument between Ms. Sheehan and the defendant, the defendant kept repeating, "Well, I'll blow you away. Get out of my apartment." The three women left because they didn't know what was in the bag and were afraid that they "might really get blown away."
Christy St. John also testified that Ms. Sheehan and the defendant had been arguing and that the defendant had pointed the duffel bag at Ms. Sheehan's face while threatening to "blow her away" 10 or 12 times. When the three women realized that there might be something in the bag that would harm them, they left at Ms. St. John's suggestion.
Carbondale police officer Randy Cory testified that he went to the defendant's apartment on October 19, 1982, to investigate an aggravated assault complaint. He was joined by Officer Mike Van Milligan, and the two officers were allowed into the apartment by the defendant. In response to their questions, she stated that she did not have a gun. Upon searching the apartment, Officer Cory found the duffel bag under the bed and opened it, retrieving the sawed-off shotgun inside. The officer asked the defendant if the gun was hers, and the defendant stated no, that it was her boyfriend's. When asked how the gun had gotten under the bed in her apartment, she said that her boy-friend had put it there. Officer Cory testified that when he found the bag in the apartment, the bag was zipped and its contents were not visible.
As the final witness for the State, Officer Van Milligan testified that he interviewed the defendant at the police station after the gun had been found in her apartment. The defendant told him at that time that she knew there was some sort of gun in the bag but that she thought it was a "BB" gun. The defendant also stated that she had not pointed the bag containing the gun at anyone and that, during the argument with Ms. Sheehan, she had reached down under the bed to get the gun but had not stood up with it.
Kevin Simmons testified for the defense that in October 1982 he sometimes lived with the defendant in her apartment and that he kept several personal items there. Approximately two weeks before the incident, he had brought the blue duffel bag containing the shotgun into the apartment and placed it under the bed. The bag was zipped when he brought it into the apartment and, so far as he knew, the gun remained in the bag for the entire time it was there. Mr. Simmons told the defendant that there was a gun inside the bag and that it was a rifle, but he did not show the gun to her and had not seen the defendant unzip the bag or look inside it.
The defendant, testifying on her own behalf, stated that she first saw the bag under the bed the day after Mr. Simmons brought it into the apartment. Simmons had told her there was a gun in the bag, but she had never unzipped the bag and did not know what a shotgun was.
The defendant testified further that during the incident in question, Ms. Sheehan pointed her finger in the defendant's face while she and the two other young women surrounded her. When they refused to leave after repeated requests, the defendant backed away and went over to the bed where she lifted the covers up and reached for the duffel bag. She did not take it out from underneath the bed, although the three women could see it from where they stood. At that point the other two young women told Ms. Sheehan to "come on" and the three women left quickly.
The defendant stated that she knew very little about guns and that, although she knew that there was a gun in the bag, she was ...