APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
527 N.E.2d 632, 172 Ill. App. 3d 1030, 123 Ill. Dec. 169 1988.IL.1219
Appeal from the Circuit Court of Coles County; the Hon. Paul C. Komada, Judge, presiding.
PRESIDING JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On May 29, 1987, defendant James Lee Clodfelder was charged in the circuit court of Coles County with the offense of unlawful use of a weapon by a felon. (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1.) After a trial by jury, a conviction was entered on October 20, 1987. On November 30, 1987, the court sentenced defendant to a term of seven years' imprisonment. He has appealed contending: (1) the proof did not support the conviction; (2) the court erred in denying a motion to suppress a gun seized by police; (3) he was denied his right to effective assistance of counsel; and (4) his sentence resulted from impermissible double enhancement. We affirm.
We consider first the question of the sufficiency of the proof of guilt. Section 24 -- 1.1 of the Criminal Code of 1961 under which defendant was charged contains the following provisions relevant to this case:
"It is unlawful for a person to knowingly possess on or about his person or on his land or in his own abode or fixed place of business any weapon prohibited under Section 24-1 of this Act or any firearm or any firearm ammunition if the person has been convicted of a felony under the laws of this State or any other jurisdiction." (Emphasis added.) Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1(a).
The evidence at trial upon which the conviction was based was mostly undisputed and described the following occurrence. On May 22, 1987, Coles County Deputy Sheriff William Powell stopped a station wagon driven by defendant because it had no number plates. A subsequent search by Powell and two other deputies called to the scene produced a .22 caliber rifle. The vehicle contained a front seat, a backseat and a cargo area, which was three or four feet behind the front seat. The rifle was directly behind the portion of the backseat on the driver's side. One of the deputies testified that in order for defendant to have reached the rifle while in the driver's seat he would have had to rise from his seat and turn. Defendant admitted ownership of the vehicle and the rifle and knowledge of where the rifle had been placed in the vehicle. The undisputed evidence showed defendant to be a felon subject to the restrictions of section 24 -- 1.1(a).
The question of the sufficiency of the evidence turns upon the question of whether, despite the distance of the .22 caliber rifle from defendant, as he sat in the driver's seat, defendant possessed the gun "on or about his person." In contending the rifle was too attenuated from defendant for him to have possessed it in that manner, defendant relies on People v. Liss (1950), 406 Ill. 419, 94 N.E.2d 320. There, charges were brought under a statutory provision which stated "[no] person shall carry concealed on or about his person a pistol, revolver or other firearm." (Emphasis added.) (Ill. Rev. Stat. 1949, ch. 38, par. 155.) In Liss, a German Luger automatic pistol had been found by officers under the front seat of a vehicle driven by that defendant. The gun was about halfway between the place where the driver, the defendant, sat and where a passenger sat in the front seat. Both the defendant and the passenger denied ownership or knowledge of the existence of the gun. That testimony was not refuted nor was the testimony of the defendant that he had borrowed the vehicle. The supreme court reversed that defendant's conviction.
The Liss opinion stated that to show a violation of that statute, proof must be made of "concealment of the weapon, and it must be on or about the person; and it must be so placed that it may be used without appreciable change in the position of the owner." (Liss, 406 Ill. at 424, 94 N.E.2d at 322.) The court noted that the defendant there could not have reached the gun without change in position and that no proof was made that he owned the vehicle or knew of the existence of the gun.
The State relies on the more recent decision of the Appellate Court for the First District in People v. Rangel (1987), 163 Ill. App. 3d 730, 516 N.E.2d 936. There, a defendant was convicted of the instant offense, a violation of section 24 -- 2.1. The gun was found by officers on the floor of the front seat on the driver's side of a vehicle owned and most recently driven by that defendant. The conviction was upheld on review. The court explained that possession necessary to support a section 24 -- 1.1 conviction can be constructive (People v. Nunez (1974), 24 Ill. App. 3d 163, 320 N.E.2d 462) if the accused has knowledge of the presence of the firearm and "immediate and exclusive control over the area where it was found. (People v. Williams (1981), 98 Ill. App. 3d 844, 424 N.E.2d 1234.)" Rangel, 163 Ill. App. 3d at 739, 516 N.E.2d at 942.
The thrust of defendant's argument that the proof was insufficient is that the gun here was farther from where the defendant sat in his vehicle than was the case in either Liss or Rangel and the obvious fact that defendant would have had to shift position to get hold of the gun. The statute in Liss required that one guilty of the offense " carry [the weapon] concealed on or about his person." (Emphasis added.) (Ill. Rev. Stat. 1949, ch. 38, par. 155.) Here, the accused need only "knowingly possess [the weapon] on or about his person." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 24-1.1(a).) The common language of the two statutes is the words "on or about his person." However, we do not interpret Liss to preclude a gun being "on or about [the] person" of an accused if he cannot reach it without changing position. Notably, the Liss opinion said that proof of the statutory offense involved there required (1) concealment, (2) position "on or about" the person accused, and (3) accessibility of the accused to the weapon. Thus, the opinion would indicate the requirement of accessibility was a separate element from the requirement the weapon be "on or about" the accused. The Liss court stated that the gun could not be reached by the accused without change of position but did not say the proof failed to show that defendant possessed the gun "on or about" his person.
The Liss court gave significance to the lack of evidence of that defendant's (1) knowledge of the existence of the gun, or (2) control of the area where the gun was placed. Thus, possible constructive possession was not possible there. Here, defendant was the owner with exclusive possession of the vehicle and the owner of the gun. He knew where it was placed. We hold the evidence to be sufficient to support a determination he constructively possessed the gun "about his person." The jury could have reasonably ...