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09/21/94 PEOPLE STATE ILLINOIS v. MARK DWIGHT

September 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MARK DWIGHT WILLIAMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable William P. O'Malley, Judge Presiding.

Petition for Leave to Appeal Denied February 1, 1995.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant Mark Dwight Williams was convicted of unlawful use of weapons and failure to possess a firearm owner's identification card (hereinafter FOID).

On appeal defendant (1) claims entitlement to an exemption for the offense of unlawful use of weapons due to the alleged inaccessibility of the weapon, (2) challenges the sufficiency of the complaint because it failed to state an exception included in the statute defining the offense of unlawful use of weapons, (3) contests the sufficiency of the evidence on the grounds that the State failed to negate the statutory exception missing in the complaint, and (4) asserts the evidence was insufficient to prove his failure to possess a FOID card.

We affirm the convictions and file this opinion pursuant to Supreme Court Rule 23(a)(1) (Official Reports Advance Sheet No. 15 (July 20, 1994), R. 23, effective July 1, 1994) because it may create a conflict with the third district regarding the application of statutory exemptions to the crime of unlawful use of weapons.

During a routine patrol on May 1, 1992, two police officers observed three men standing on a public sidewalk with their backs to the officers. As the police officers exited their car, they saw two of the men holding handguns and later identified one of the men as defendant. When the officers approached, the three men fled and the officers chased them down the street, into alleys and through gangways. During the pursuit, defendant threw his gun into a garbage can and continued to flee. After apprehending one of the men, the officers observed defendant nearby and arrested him.

The trial court found defendant guilty of unlawful use of a weapon and failure to possess a FOID card. In addition, defendant was convicted of a municipal ordinance violation for failure to exhibit a firearm registration certificate which defendant does not appeal.

The crime of unlawful use of weapons occurs when a person knowingly

"(10) Carries or possesses on or about his person, upon any public street, alley, or other public lands within the corporate limits of a city, village or incorporated town, except when an invitee thereon or therein, for the purpose of the display of such weapon or the lawful commerce in weapons, or except when on his land or in his own abode or fixed place." 720 ILCS 5/24-1(a)(10) (West 1993).

Exemptions from criminal liability for the offense of unlawful use of weapons exists for "weapons that are broken down in a non-functioning state or are not immediately accessible." 720 ILCS 5/24-2(b)(4) (West 1993).

Defendant asserts that he is entitled to the inaccessibility exemption for the offense of unlawful use of a weapon (720 ILCS 5/24-2(b)(4) (West 1993) because the gun was discarded into a garbage can and was not loaded.

The State contends that the weapon possession offense for which defendant was convicted was based upon defendant's possession of the weapon while he was standing on the sidewalk and during the course of flight down a ...


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