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Town of Normal v. Bowsky





Appeal from the Circuit Court of McLean County; the Hon. William D. DeCardy, Judge, presiding.


The defendant was acquitted of violating a Normal town ordinance which prohibits possession of alcoholic beverages by a person under age 21. The town appeals, and we reverse.

Although the defendant did not file a brief on appeal, the parties agreed to a statement of facts. At trial, Normal police officer Paul J. Lehmann testified that on March 29, 1985, he had observed the defendant give money to another man in return for a brown bag at a liquor store in Normal. The defendant then entered an automobile and drove away from the liquor store. The officer testified that he noticed the defendant's vehicle appeared to have no license plate and, accordingly, he stopped the defendant's car. After he stopped the vehicle, the officer stated that he determined that it had a valid license-applied-for sticker. During the course of the stop, the officer determined that the brown paper bag he had earlier observed the defendant carrying contained a large bottle of beer and a bottle of wine. When asked to produce identification, the defendant showed the officer a driver's license which indicated his age to be less than 21 years.

The defendant essentially corroborated the officer's testimony. However, he also testified that he had bought the alcohol for his 24-year-old sister, who had stayed in the car while the defendant went into the liquor store.

The defendant's sister also testified. She stated that the beer and wine were for her use and that she had asked her brother to attempt to purchase the alcohol for her because she had no identification with her. She stated she knew from experience that it was difficult to purchase alcohol in the town of Normal without identification.

After both sides rested, the trial court ruled that the defendant was "merely a conduit" and not in possession of alcohol. Accordingly, the court found the defendant not guilty. On appeal, the plaintiff argues that the trial court's ruling was erroneous as a matter of law and urges this court to enter judgment in favor of the town of Normal.

• 1 The defendant has not filed a brief in the present appeal. However, when the record, as here, is simple and the asserted errors can be addressed without the appellee's assistance, this court will decide the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill.2d 128, 345 N.E.2d 493.

• 2 Before addressing the merits of this appeal, we must first determine whether the town of Normal may appeal a trial court's acquittal of a defendant charged with violating a municipal ordinance. In Waller v. Florida (1970), 397 U.S. 387, 25 L.Ed.2d 435, 90 S.Ct. 1184, the United States Supreme Court held that a defendant could not be tried in State court after having already been tried in a municipal court for the same offense. This court has previously suggested, by way of dicta, that the holding in Waller would preclude an appeal by the prosecution in a case similar to the one before us. (City of Springfield v. Ushman (1979), 71 Ill. App.3d 112, 388 N.E.2d 1357.) Undoubtedly, Waller would prohibit appeal and a second trial for the plaintiff if Illinois viewed municipal ordinance prosecutions as coequal with criminal prosecutions. However, the Illinois Supreme Court has repeatedly characterized the municipal ordinance prosecution as a quasi-criminal proceeding which shares the characteristics of both a civil action and a criminal prosecution. (Village of Park Forest v. Fagan (1976), 64 Ill.2d 264, 356 N.E.2d 59; Village of Park Forst v. Bragg (1967), 38 Ill.2d 225, 230 N.E.2d 868; Village of Maywood v. Houston (1956), 10 Ill.2d 117, 139 N.E.2d 233.) We note that Fagan post-dates the United States Supreme Court's opinion in Waller and conclude that the prosecution may appeal a defendant's acquittal of a municipal ordinance violation consistent with the United States and Illinois constitutions' proscriptions against double jeopardy. See also City of Chicago v. Prus (1983), 117 Ill. App.3d 455, 453 N.E.2d 776; City of Highwood v. Wightman (1979), 71 Ill. App.3d 935, 390 N.E.2d 588; City of Peoria v. Henderson (1976), 39 Ill. App.3d 762, 350 N.E.2d 540.

Turning to the merits, we conclude that the trial court applied an erroneous interpretation of the law in acquitting the defendant. The ordinance under which the defendant was prosecuted provides that:

"It shall be unlawful for any person under the age of 21 years to purchase, or accept a gift of alcoholic liquor or have alcoholic liquor in his or her possession." Town of Normal, Ill., Municipal Code sec. 17.1-3(2) (1969 as amended).

• 3 In general, one has "possession" of contraband when they have immediate and exclusive control over the object as well as knowledge of the nature of the substance at issue. (People v. Howard (1975), 29 Ill. App.3d 387, 330 N.E.2d 262.) Moreover, when a statute prohibits possession of a substance, the reason a defendant possesses the substance is irrelevant unless it would bring him within a statutory exception. People v. Garcia (1964), 52 Ill. App.2d 481, 202 N.E.2d 269; see also People v. Molsby (1978), 66 Ill. App.3d 647, 383 N.E.2d 1336.

Our research discloses that some courts in other jurisdictions have held that a defendant is not "in possession" of liquor if he grasps an alcoholic beverage container solely to drink it. See, e.g., State v. Williams (1926), 117 Or. 238, 243 P. 563; State v. Bostock (1928), 147 Wn. 402, 266 P. 173; State v. Nelson (Mo. App. 1929), 21 S.W.2d 190.

The better view, and one more consonant with Illinois law, is stated by decisions such as State ex rel. Harbin v. State (1923), 210 Ala. 55, 97 So. 426. In Harbin, the defendant was arrested with a jug of liquor in his arms. However, he claimed as a defense that he did not own the liquor, but that it was owned and, therefore, "possessed by his companion. In holding the defendant was guilty of possessing the contraband liquor, the Alabama Supreme Court stated that:

"The possession prohibited includes any possession by manucaption or physical dominion, of however brief duration, and in whatever capacity the possession may be held, if it be for the use, benefit, or enjoyment of himself or any other person, and not merely for the purpose of inspection or destruction. It is none the less an unlawful possession because it is by the permission of the owner of the liquor, and in his immediate presence. It may be conceded that in such a case the owner — so called — would remain in the constructive possession of the liquor, and nevertheless his permissive custodian would have an actual possession which ...

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