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People v. Wright

OPINION FILED JANUARY 28, 1986.

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

v.

BARRY WRIGHT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Gino L. Divito, Judge, presiding.

JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted of one count of possession of a controlled substance with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)) and one count of unlawful use of weapons (Ill. Rev. Stat. 1983, ch. 38, par. 24-1(a)(7).) He was acquitted of one count of bribery. (Ill. Rev. Stat. 1983, ch. 38, par. 33-1(a).) The court sentenced defendant to a period of six years' incarceration on the possession with intent to deliver finding and to two years' incarceration on the unlawful use of weapons finding. Defendant appeals from these convictions.

On April 3, 1982, police officers Turner and Thompson entered the 8919 S. Blackstone apartment of defendant and defendant's mother, pursuant to a search warrant. Other members of the Third District tactical unit followed shortly after. A loaded handgun was removed from the defendant's pocket, and he was detained with his mother by Officer Tomasik in the living room while the apartment was searched. The police seized from in or near the kitchen a plastic vase and a clear plastic bag which they suspected contained drugs. They also seized video equipment, tapes and jewelry from the front bedroom, live shells and ammunition from a closet, and 11 loaded weapons, including rifles, handguns, and a shotgun whose barrel measured approximately 17 inches.

Three officers who took part in the search testified for the State at trial. Officer Tomasik testified that about 20 minutes after the search began, defendant offered to give Tomasik $10,000 to divide among the officers, if they would let him go. Defendant's mother left the room and returned with an envelope of cash. Officers Tomasik and Turner testified that defendant then handed the envelope to Tomasik, saying, "here's $10,000, take the dope, leave the guns, just leave me go, leave us alone." They stated that after handing over the money, defendant led them to a linen closet from which he retrieved a plastic bag containing 300 grams of cocaine.

Over defense counsel's objections, the three officers testified about the various weapons and ammunition seized during the search, and these items of evidence were kept at the State's table during its case in chief. Defendant's objections were overruled and his motion for mistrial denied, the trial court finding that the evidence was relevant and admissible.

Defendant and his mother testified, each denying that defendant attempted to bribe the officers. Each testified that the shotgun recovered from the closet had been sawed off by defendant's father after the gun was damaged in a hunting incident. Defendant denied knowing the shotgun was in the apartment on the day of the police search. Both defendant and his mother denied knowing there were controlled substances in the apartment.

During the course of jury deliberations, the following question was received by the court:

"Re unlawful use of weapons. Does the defendant have to know that the length of the barrel is less than 18 inches or does he merely have to know that the shotgun is in his possession?"

The court heard arguments from both parties before the question was answered. The court responded to the jury:

"Re unlawful use of weapon. To find the defendant guilty the law requires that the defendant knowingly possessed the shotgun, but does not require that he know that the barrel is less than 18 inches in length."

• 1 Defendant first contends that the trial court erred in admitting into evidence guns and ammunition seized at the time of defendant's arrest. He urges that admission of this evidence denied him a fair trial because it was irrelevant to the charges before the jury. Alternatively, he argues that if the evidence was probative, its probative value was outweighed by the prejudicial impact on the jury. The State responds that the guns and ammunition were relevant as evidence not only of defendant's motive for the attempted bribe, but also as evidence of defendant's knowing possession of 300 grams of cocaine and of a sawed-off shotgun.

Both parties frame the issue of relevance in terms of the general rule that evidence of other crimes is inadmissible except when that evidence is relevant for a purpose other than to show defendant's propensity to commit the crimes charged. (People v. Stewart (1984), 105 Ill.2d 22, 61, 473 N.E.2d 840; People v. Baptist (1979), 76 Ill.2d 19, 27, 389 N.E.2d 1200; People v. Romero (1977), 66 Ill.2d 325, 330, 362 N.E.2d 288.) We note initially that possession of weapons other than the shotgun was not directly characterized as a crime. The trial court refused the State's proffered instruction that evidence had been received that the defendant had been involved in an offense other than that charged in the indictment (Illinois Pattern Jury Instruction, Criminal, No. 3.14 (2d ed. 1981)). Instead, the court allowed defendant's amended instruction that evidence "has been received that the defendant may have possessed ammunition and numerous weapons other than the shotgun which is the subject matter of the charge in the indictment." However, insofar as the evidence in dispute was outside the indictment and could arguably be evidence of other crimes, we believe that analysis in terms of the general rule of inadmissibility and its exceptions is appropriate.

Evidence of other crimes is admissible where relevant to establish any fact material to the prosecution. (People v. Stewart (1984), 105 Ill.2d 22, 60, 473 N.E.2d 840.) Proof of motive is always relevant in a criminal prosecution to show that defendant committed the offense with which he is charged. (People v. El (1980), 83 Ill. App.3d 31, 41, 403 N.E.2d 547), and evidence which goes to show motive is admissible even though it may reveal another offense (People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489). Relevant, admissible evidence need not be excluded simply because it tends to prejudice the accused. (People v. Hairston (1970), 46 Ill.2d 348, 372, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L.Ed.2d 136, 91 S.Ct. 1658.) The trial court must weigh the relevance of the evidence against its prejudicial effect to the defendant (People v. Stewart (1984), 105 Ill.2d 22, 62, 473 N.E.2d 840), and its determination of whether evidence is relevant and admissible will not be reversed absent a clear abuse of discretion. People v. Miller (1981), 98 Ill. App.3d 453, 458, 424 N.E.2d 624.

• 2 The record reflects that the trial court in the instant case considered defendant's arguments about the relevance and potentially prejudicial impact of the evidence of guns and ammunition in its rulings on a motion in limine, during trial, and upon the motion for new trial. We find that the evidence was relevant to the charge of bribery and was properly admitted. In the opening statement at trial, defendant stated that he would take the witness stand and would testify that he never attempted to bribe the police. He explained that he would testify that the $10,000 allegedly offered to the police officer was volunteered simply to be inventoried so that the police would be accountable for everything they searched in the apartment. During the State's case in chief, witnesses for the State testified that defendant tried to bribe the police officer guarding him, saying, "here's $10,000, take the dope, leave the guns, just leave me go," only after defendant had watched the officers discover and accumulate five rifles, several handguns, a ...


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