Appeal from the Circuit Court of Bureau County; the Hon. James
J. Wimbiscus, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 25, 1986.
The defendant was found guilty by a jury of the offenses of unlawful use of weapons and failure to possess a firearm owner's identification card (Ill. Rev. Stat. 1983, ch. 38, pars. 24-1(a)(4), 83-2). The court imposed a sentence of six months' imprisonment on each charge to run concurrently. The defendant's post-trial motion was denied, and the defendant filed a timely notice of appeal. We reverse.
The defendant argues that the State did not prove him guilty beyond a reasonable doubt. We agree. The defendant also contends that he was denied a fair trial as a result of repeated prosecutorial misconduct. Since we agree with the defendant's contention that he was not proved guilty beyond a reasonable doubt, we need not address defendant's claim of prosecutorial misconduct.
The record discloses that the following was adduced at the defendant's trial. The first witness to testify for the prosecution was Officer David M. Grubb of the Illinois State Police.
Officer Grubb stated that on the morning of September 24, 1984, he stopped the defendant's car for a speeding violation. Officer Grubb walked to the defendant's car and saw a cased firearm lying on the floor in the rear of the car. Describing what happened next, Officer Grubb testified, "I asked him [the defendant] if I could look at the firearms and he said that's no problem. The gun doesn't belong to him anyway." Officer Grubb removed the firearm from its case and removed nine .22-caliber bullets from it. Officer then asked the defendant if he had a firearm owner's identification card. The defendant was arrested when he was unable to produce such a card. At the conclusion of Grubb's testimony, the State rested.
The first witness to testify for the defense was the defendant. He stated that on the morning of September 24, 1984, he picked up Rick Yuvan and Bob Wrona and drove them to an area where Yuvan and Wrona hunted. The defendant stated that Yuvan and Wrona each had a rifle when he picked them up and that he saw them each take his own gun when the defendant dropped them off to hunt. The defendant picked Yuvan and Wrona up again after the two had hunted for several hours. Yuvan placed his cased .22-caliber rifle in the back of the defendant's car and sat down on the passenger side of the front seat next to the defendant. Wrona also placed his rifle in the back and seated himself on the passenger side of the back seat. The defendant testified that after picking Yuvan and Wrona up from hunting, he first took Wrona home and that he saw Wrona take a gun when getting out of the car. After dropping off Wrona, the defendant drove to Yuvan's apartment. Because he was in a hurry, the defendant stopped in the middle of the street in front of Yuvan's apartment to let him off. The defendant testified that because he was in the middle of the street, he was looking in the rear-view mirror for traffic and was not watching Yuvan get out of the car. Thus, he did not see whether Yuvan took his gun from the back of the car. The defendant stated that as he drove away he saw Yuvan on the steps of the apartment building but did not notice whether Yuvan was carrying a gun. The defendant stated that after he dropped Yuvan off he was unaware that Yuvan's rifle was still in his car.
After dropping off Yuvan, the defendant drove to the Princeton courthouse. However, in getting in and out of his car, he did not look into the back of his car and so did not see a rifle in the car. Soon after leaving the courthouse, the defendant was stopped by Officer Grubb. When Officer Grubb asked the defendant if he could look at a gun in the defendant's car, the defendant said he could. The defendant stated that when Officer Grubb first mentioned the gun, the defendant was unaware to whom it belonged, but he did not act surprised since he realized that either Yuvan or Wrona had left a gun in the car, they being the only two who had guns in the car that day. After Officer Grubb removed the rifle, the defendant recognized it as belonging to Yuvan. The defendant stated that between the time he dropped Yuvan off and the time he was stopped by Officer Grubb, he was unaware that there was a gun in his car.
Richard Yuvan testified that on the morning of September 24, 1984, the defendant drove him and Wrona to where they hunted, and that they were picked up by the defendant after hunting. The defendant then drove Wrona home and drove Yuvan to his apartment. When Yuvan was being dropped at his apartment, he got out of the car quickly because the defendant was in a hurry to get to court, and in his haste Yuvan forgot his gun. Yuvan identified the rifle found in the defendant's car as belonging to him.
• 1 With respect to the unlawful use of weapon's charge, the relevant section of the Criminal Code of 1961 reads as follows:
"(a) A person commits the offense of unlawful use of weapons when he knowingly:
(4) Carries or possesses 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, stun gun or taser or other firearm." (Ill. Rev. Stat. 1983, ch. 38, par. 24-1(a)(4).)
It is apparent from reading section 24-1(a)(4) that in order to obtain a conviction, the State must prove that the defendant knowingly possessed a firearm. In order to legally transport a firearm, a person must either break down the firearm to a nonfunctioning condition or place it where it is not immediately accessible. (Ill. Rev. Stat. 1983, ch. 38, par. 24-2(b)(4).) On appeal, the defendant argues that the State failed to establish beyond a reasonable doubt, that the defendant's possession of the gun found in his car was knowing.
• 2 Knowledge on the part of an accused of the existence of a firearm within his possession may be inferred from circumstantial evidence. (People v. Billings (1977), 52 Ill. App.3d 414.) The State urges that we infer that the defendant knowingly possessed a firearm. The State's entire case rests upon the inference to be drawn from the testimony of Officer Grubb that the defendant knowingly possessed a firearm. Officer Grubb testified that as he stood outside the defendant's vehicle on the driver's side, he could readily see the firearm. Officer Grubb's testimony located the firearm on the floor behind the driver's seat with the barrel resting on the middle hump of the floor facing at an upward angle toward the passenger. The barrel was less than 24 inches from the front seat. There was further testimony that the defendant could have easily reached the firearm from the driver's seat. On appeal, the State cites People v. Rogers (1974), 18 Ill. App.3d 940. In Rogers, the defendant was charged with unlawful use of weapons as the result of a police officer's discovery, following a traffic stop, of a .12-gauge sawed-off shotgun partially concealed beneath the rear seat. When stopped, the defendant admitted he had title to the automobile. During trial, the arresting officer testified that the firearm was visible from his position outside the car. The Rogers court held that the defendant's ownership of an automobile, his presence within it and the partial visibility of a firearm from outside the car was sufficient to establish that the defendant had knowledge of the firearm's presence. (18 Ill. App.3d 940, 944.) The State ...