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01/26/89 the People of the State of v. Dennis W. Bond

January 26, 1989





534 N.E.2d 156, 178 Ill. App. 3d 1020, 128 Ill. Dec. 136 1989.IL.79

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. LUND and KNECHT, JJ., concur.


On March 24, 1988, following a jury trial in the circuit court of Macon County, defendant Dennis W. Bond was convicted of the offenses of armed violence, unlawful possession of a controlled substance with intent to deliver, unlawful possession of a controlled substance, and unlawful use of firearms by a felon. The court vacated the conviction for unlawful possession of a controlled substance and sentenced defendant to concurrent terms of eight years' imprisonment on the armed violence conviction, five years' imprisonment on the possession with intent to deliver conviction, and four years' imprisonment on the unlawful use of a weapon conviction.

On appeal, defendant maintains (1) he was not properly convicted of armed violence, because the State failed to prove a gun, found underneath cushions in a sofa in defendant's apartment, was "on or about" defendant's person; (2) the unlawful use of firearms charge should have been severed from the other charges at trial, despite defendant's failure to request a severance; and (3) the trial court erred, after finding defendant was indigent, in seizing part of his bond money to pay for the expense of a transcript. We affirm in part and reverse in part.

At trial, Sam Baum testified (1) he was a detective with the Macon County sheriff's department; (2) on December 22, 1987, he obtained and executed a search warrant at defendant's apartment; (3) when he and other officers arrived at the apartment, after knocking and announcing their presence, they heard noises from inside; (4) when no one answered the door, they then broke the door down and found a "hide-a-bed" sofa blocking the door; (5) they found defendant and another male inside the apartment; (6) a search of the apartment revealed a quantity of cocaine and various drug-related items, which were seized; (7) a loaded handgun, which was also seized, was found underneath a sofa cushion where defendant was sitting; (8) defendant admitted residing in the apartment and admitted ownership of the gun and the cocaine; and (9) defendant admitted he was attempting to flush some of the cocaine down the toilet when the officers arrived. Deputy Jerry Dawson and Detective Gilbert Veach also testified and substantially corroborated Baum's testimony.

Defendant testified in his own behalf and admitted that on December 22, 1987, he was in possession of the cocaine and the handgun which police found in his apartment. He noted, however, that the gun was not in plain view, and he had never intended to use it. He also admitted that he had a felony conviction in 1984. A certified copy of defendant's 1984 conviction was admitted into evidence by the State.

Defendant argues the State failed to prove he was armed with a dangerous weapon for purposes of the armed violence statute, because the gun was found in defendant's apartment, underneath the cushions of a sofa, and not "on or about" defendant's person. Defendant notes that he admitted he was in the bathroom trying to dispose of the cocaine in the toilet at the time the police announced their arrival, and he was later sitting on the floor when the police ordered him to sit on the sofa where the gun was eventually found. He maintains that since he had no intention of using the gun, his conviction of this offense results from the police officers' virtually placing the gun in his control.

The armed violence statute provides that a person commits the offense when, "while armed with a dangerous weapon, he commits any felony defined by Illinois Law." (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2.) For purposes of this statute, a person is considered "armed with a dangerous weapon . . . when he carries on or about his person or is otherwise armed" with, for example, a pistol or revolver. Ill. Rev. Stat. 1987, ch. 38, par. 33A-1(a).

Defendant argues the purpose of the statute is to punish those who create an added risk of potential violence by carrying a weapon at the time they commit a crime. He maintains that here, where the gun was located underneath the cushions of a sofa, the risk contemplated by the armed violence statute does not exist.

In People v. Alejos (1983), 97 Ill. 2d 502, 455 N.E.2d 48, the court recognized, however, that the mere presence of a weapon and not its actual use was sufficient to meet the requirements of the statute. The court noted the "presence of a weapon enhances the danger that any felony that is committed will have deadly consequences should the victim offer resistance." (Alejos, 97 Ill. 2d at 508, 455 N.E.2d at 50.) The court further noted that the statute was designed to not only punish the criminal, but also to deter the conduct of carrying a weapon while committing a felony.

Although here the gun was not physically in defendant's hands or in actual contact with his "person," it was immediately accessible, as was the gun in People v. Lenoir (1984), 125 Ill. App. 3d 260, 465 N.E.2d 1027. There, the defendant was found alone, lying on a bed, watching television. A gun was found on the bed, near where the defendant was lying. The court found the circumstances supported the inferences that the ...

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