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People v. Van Kampen





Appeal from the Circuit Court of Whiteside County; the Hon. Wilbur S. Johnson, Judge, presiding.


After a jury trial, defendant John A. Van Kampen was convicted of aggravated battery, resisting or obstructing a peace officer and possession of a loaded gun in a vehicle. He was sentenced to a 30-month term of probation for aggravated battery, conditioned, inter alia, on serving 16 days of periodic imprisonment, forfeiting all weapons during the probationary period, not possessing fish or game licenses until March 1, 1987, and paying a $5,000 fine and court costs. On the resisting and possession offenses, defendant was sentenced to a probationary term of one year, to be served concurrently with the 30-month probationary sentence.

Defendant appeals from his convictions and the sentences imposed on them. Because defendant claims that the State's evidence was not sufficient to prove his guilt beyond a reasonable doubt, we initially recite the facts as they were presented at trial.

Department of Conservation Officer Merlin Howe testified that on December 7, 1984, he observed defendant's pickup truck parked along Mallott Road in Whiteside County. December 7 was one of the days of the deer hunting season, and the officer was checking for deer hunters. Howe was 71 years old. He knew defendant to be a deer hunter and knew that he had taken his limit, one deer, in Whiteside County earlier in the season. Howe pulled up and peered into the pickup, where he observed an empty gun case, an empty binocular case and a couple of empty .12-gauge-cartridge slug boxes on the floor.

Howe decided to move his marked vehicle into the bushes to a point where he could observe defendant's truck. About an hour later, defendant walked up from behind Howe's car. Defendant was wearing an orange hunting vest and cap, appropriate apparel for deer hunting.

Howe, in full uniform, got out of his car and asked defendant what he was doing. Defendant said he was "enjoying nature." Howe did not accept the explanation, and asked where defendant had hidden his gun and deer permit. Defendant suggested that they go down to his truck and he would undress so that Howe could search him. They walked to defendant's pickup, and Howe inquired abut the empty gun case he had observed in the truck. Defendant explained that he kept it in the truck in case he found a gun. He further stated that he had a loaded rifle behind the seat.

Howe opened the door to the pickup and found the cased, allegedly loaded rifle. He told defendant he was under arrest for having a loaded gun in the truck. According to Howe, when he tried to pull the gun out of the case, defendant grabbed the weapon, twisted Howe's wrist around to break his grip and punched the officer in the chest and right shoulder. Howe determined that he could not handle the situation without back-up. He went back to his car to radio for help. Howe moved his car to face defendant's truck and was able to observe defendant ejecting shells from the rifle and then placing the shells behind the seat and the rifle and its case on the seat.

Officers McCorkle and Bartels, of the Conservation Department and State Police, respectively, arrived to assist Howe. The three officers asked defendant to get out of the truck. When he refused, they physically pulled him out and placed him in Bartels' vehicle for transportation to the Sheriff's office. An unloaded .22 rifle and ammunition from behind the seat were collected from defendant's pickup.

Howe and McCorkle searched the surrounding field for further evidence. They found a .12-gauge shotgun containing three slugs, binoculars and a deer permit hidden in the grass at the top of a knoll. The permit was issued to Loren Van Kampen of Fulton, defendant's brother, and authorized the taking of a deer from Carroll County.

McCorkle and Bartels also testified for the State, substantially corroborating the facts related by Howe.

Defendant testified on his own behalf. He stated that he had gone to his brother's (Loren's) home on the morning of December 7, intending to be a chaser for Loren to hunt deer. He wore his hunting clothes, but removed them in the house waiting for Loren to decide what he wanted to do. Loren decided to go to work instead, so defendant grabbed some clothes, mistaking his brother's vest for his own, and left to go rabbit hunting.

Defendant testified that he kept his unloaded, cased rifle behind the seat in the pickup for target practice. On Mallott Road, defendant parked the pickup and took his .12-gauge shotgun out to look for rabbits. He saw neither rabbits nor deer. Then, defendant decided to put slugs in the shotgun to sight it in for the next deer season, a year away. Through his binoculars, defendant saw Howe's car. He hid the gun, binoculars and the deer-permit tag from his brother's vest, believing that no game warden would believe that he was only sighting in the shotgun.

Defendant's version of the physical encounter with Howe was that Howe "leaned into" defendant when defendant tried to show the rifle to Howe instead of handing it over as Howe requested. Defendant asserted at trial that the rifle was not loaded, but that he had said, "Sure, Merlin, whatever you say," in response to Howe's inquiry at the scene about the gun, knowing the officer's "reputation." Defendant explained that the shells found behind the seat in his truck were merely shells that were out of their boxes.

In addition to the foregoing occurrence witnesses, two other witnesses were called at trial before the close of defendant's case to testify to ...

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