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June 29, 1994


Appeal from Circuit Court of Macon County. No. 92CF1039. Honorable John L. Davis, Judge Presiding.

Released for Publication August 24, 1994. As Corrected September 6, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Concurring, Honorable Robert J. Steigmann, J., Specially Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

After a jury trial, defendant Dewayne Adams was convicted of armed violence (Ill. Rev. Stat. 1991, ch. 38, par. 33A-2) based on the jury's finding that he was in possession of cocaine while armed with a switchblade knife. He was sentenced to 78 months in prison. Defendant appeals, arguing the State failed to prove all the elements of armed violence, the trial court erred in excluding evidence, the jury was not properly instructed, and impeaching evidence was given the jury without a limiting instruction. We affirm.

On December 14, 1992, at approximately 6 p.m., defendant went to the CC Club at the corner of Jackson and Sheridan Streets in Decatur, Illinois. When he arrived at the parking lot outside the club, defendant purchased a small packet of cocaine. When defendant reached the front of the club he saw a friend of his, Thomas Cole, standing in the doorway of Cole's residence, near the CC Club. Defendant walked over and entered Cole's house. Approximately three minutes later, several officers from the Illinois State Police Narcotics Task Force and the Decatur police department executed a search warrant at Cole's residence.

Officer Richard McElroy entered the Cole residence through the front door and secured Thomas Cole by having him lie on the floor. McElroy was followed by Officer Jerry Waggoner, who told defendant to get down on the ground. As defendant started to get down, Waggoner observed him place some items on a footstool next to where he had been standing. Officer Waggoner testified that he observed defendant place cocaine, an envelope of money, and a knife on the footstool. After placing defendant on the ground, Officer Waggoner took a closer look at the knife. He found that it was a switchblade knife and the blade was open.

Defendant testified that at the time the police arrived he had his keys and the packet of white powder in his coat pocket, and after he went to the ground those items ended up on the footstool.

After advising defendant of his rights, the officers asked him about the knife. Officer Waggoner testified defendant admitted the knife was his. During trial, defendant denied having said the knife was his. Defense counsel asked defendant "and were you aware personally of what the contents of that--could you tell before then or at the time you were arrested what the contents of those coveralls were?" The State's Attorney objected to the question on the grounds of relevancy, and the objection was sustained. Defendant later testified the knife was not his, that he used knives at work to cut tapes and boxes, but did not recall ever using that particular knife. Defendant testified the only explanation he could think of for the presence of the knife was that he was wearing coveralls furnished him at work which were worn by other employees, and the knife came from work.

During the instructions conference, defendant offered Illinois Pattern Jury Instructions, Criminal, No. 4.15 (Illinois Pattern Jury Instructions, Criminal, No. 4.15 (3d ed. 1992) (hereinafter IPI Criminal 3d)), the instruction concerning "possession." The instruction was offered in connection with the charge of unlawful possession of cocaine (not the charges of armed violence). The instruction was refused.

While the jury was deliberating, it asked if it could be furnished with defendant's testimony from the suppression hearing which was read during trial. The circuit Judge conveyed the jury's request to the attorneys for both parties. Neither side objected. The Judge prepared the testimony and gave it to the jury. The jury found defendant guilty on two counts of armed violence and one count of unlawful possession of a controlled substance. Ill. Rev. Stat. 1991, ch. 38, par. 33A-2; ch. 56 1/2, par. 1402(c).

At a hearing on defendant's post-trial motion, the trial court vacated the convictions on one count of armed violence and the underlying unlawful possession of cocaine. The court then sentenced defendant on the remaining armed violence conviction and this appeal followed.

Defendant first argues that the State failed to prove the elements of armed violence beyond a reasonable doubt. He argues the knife must have been in the coveralls without his knowledge and fallen out. He questions that the officers would have allowed him to remove an open switchblade from his pocket and place it on the footstool. Defendant contends that the State's evidence concerning his knowledge of the presence of the weapons was contradictory, inherently improbable, and insufficient to sustain his conviction.

On review, when considering the sufficiency of the evidence to support a conviction, "'"The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." * * * (Emphasis in original.)'" ( People v. Furby (1990), 138 Ill. 2d 434, 455, 563 N.E.2d 421, 430, 150 Ill. Dec. 534, quoting People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, 87 Ill. Dec. 910, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) In such a context, it is not the function of the reviewing court to retry the defendant. ( Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.) Rather, determinations of the credibility of witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. People v. Tye (1990), 141 Ill. 2d 1, 13, 565 N.E.2d 931, 937, 152 Ill. Dec. 249.

In People v. Hernandez (1992), 229 Ill. App. 3d 546, 551, 593 N.E.2d 1123, 1128, 171 Ill. Dec. 303, the court applied the Collins standard to the knowledge requirement in an armed violence case, noting:

"The element of knowledge is very often not susceptible to direct proof. [Citation.] Whether defendant had possession or knowledge is a question of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, ...

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