APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
538 N.E.2d 1197, 183 Ill. App. 3d 92, 131 Ill. Dec. 641 1989.IL.648
Appeal from the Circuit Court of Randolph County; the Hon. Carl H. Becker, Judge, presiding.
JUSTICE RARICK delivered the opinion of the court. LEWIS and CHAPMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RARICK
On August 21, 1986, George E. Rader was charged by information in the circuit court of Randolph County with armed violence predicated on the unlawful manufacturing of more than 500 grams of a substance containing cannabis while armed with a pistol; with the unlawful manufacture of more than 500 grams of a substance containing cannabis; with the unlawful possession of more than 500 grams of a substance containing cannabis; with the unlawful use of a weapon, for knowingly carrying concealed on his person a pistol when he was not on his own land, in his own abode, or fixed place of business; and possession of a firearm without a firearm owner's identification card.
At his trial, Harvey Eggemeyer testified that while cutting weeds on his property, he noticed several plots of unusual looking plants growing along a creek. He took several of the plants to the county agent, where they were identified as cannabis, and subsequently called the sheriff's office.
The marijuana plants were placed under surveillance, and on August 20, 1986, DCI Agent Ed Thrailkill observed two men approach the plots from the other side of the creek. He radioed this information to DCI agent Kenneth Sylvester and sheriff's deputy Lyndon Thies, who were hiding in one of the plots of marijuana. When the two men came within a few feet of Thies and Sylvester, they stood up, identified themselves, and placed Rader and the other man, James Blockley, under arrest.
Upon searching the suspects, police found a .25 caliber semiautomatic pistol in one of Rader's pants pockets. Rader also had a folding knife which had a resinous residue, later determined to contain cannabis, on the blade. In addition, police seized from the suspects a green bucket full of water, a brown pail, two cans of plant fertilizer, a camera, and a can of insect repellent. After being arrested, Rader told the police that he and Blockley were going to fertilize some of the plants and take them out early, before "them," and that he and Blockley were going to be blamed for "this." Blockley also told police that he had seen a silver Pontiac in the vicinity and that the driver of that car had been cultivating the marijuana.
After Rader and Blockley were arrested, the plants were cut down and were all identified to be cannabis. From the height of some of the plants, it appeared that they had been planted several months prior to Rader's arrest. Police found some plants that had been freshly cut and some that had been cut sometime earlier.
Testifying in his own behalf, Rader stated that Blockley lived next to the Eggemeyer farm near where the marijuana plants were found, and that Blockley had told him about the marijuana about mid-July. Rader also said that he had first seen the marijuana one week prior to his arrest and at that time had used his knife to cut some branches for his own personal consumption. Rader testified that he and Blockley had intended to fertilize some of the plants and harvest them before the growers returned. He also testified that he had the gun with him because he often used it to target shoot on Blockley's property.
After a jury trial, Rader was convicted on all counts except possession of a firearm without an FOIC card, on which the State declined to have the jury instructed. Rader was sentenced to eight years' imprisonment on the armed violence charge, seven years on the manufacturing charge, and five years on the possession charge, with all sentences to run concurrently. The court declined to sentence Rader on the unlawful use of a weapon charge. Additionally, Rader was fined $43,584, the street value of the marijuana, and $4,358.40 for the Traffic and Criminal Conviction Surcharge Fund. This appeal followed.
On appeal, Rader argues that the State failed to prove beyond a reasonable doubt that he was guilty of either manufacturing or possession of cannabis. Rader also argues that because the evidence is insufficient to prove the felonies on which the armed violence charge is predicated, it too must be vacated.
Under People v. Payne (1983), 98 Ill. 2d 45, 456 N.E.2d 44, cert. denied (1984), 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310, a defendant may not be convicted of both armed violence and its predicate felony where both offenses are based on the same physical act. Rader argues that his armed violence conviction was based on the same physical acts as the underlying felonies of manufacturing and possession of cannabis. The State concedes that and Rader's convictions for manufacturing and possession of cannabis should be vacated. Rader had also argued that he could not be convicted of both manufacturing and possession of cannabis as possession was a lesser included offense of manufacturing cannabis under the facts of this case, a point which the State conceded, but we need not address that argument. Rader further argued in his brief that he was denied due process of law where the jury was instructed that it could convict him of armed violence based on either the manufacturing charge or the possession charge, where the ...