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People v. Alston

February 01, 1999

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEVEN C. ALSTON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Stephenson County. No. 96--CF--334 Honorable Barry R. Anderson, Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Defendant, Steven C. Alston, was convicted of the unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West 1994)) and sentenced to 18 months' imprisonment. He appeals, contending that (1) the trial court erred by permitting the State to amend the information on the day of trial; (2) the evidence was insufficient to prove him guilty beyond a reasonable doubt; and (3) the court erred by giving the State's tendered jury instruction on constructive possession.

Freeport police officer Craig Wainman testified that on the evening of September 8, 1995, he received reports that a patrol officer had seen an unfamiliar car in his area and that the registered owner had an outstanding warrant. Wainman soon came upon the suspect car. When he observed that the car's registration sticker was expired, he pulled it over.

Wainman asked for and received permission to search the car from the driver, Thomas Fort. Wainman had Fort and his three passengers get out of the car. Travoie Huggins was the passenger in the front seat, while defendant and Dion Embry occupied the backseat. At trial, Wainman could not recall on which side of the backseat defendant was sitting.

When Wainman opened the back door, he saw a pistol sticking out from the backseat. The gun had been wedged between the seat and the back, with the grip and trigger guard visible. It was loaded with twelve 9-millimeter shells in the magazine and one in the chamber. Wainman testified that the gun would have been between the backseat passengers and accessible to either one. Only about 12 inches separated the backseat passengers.

Officer Steven Stovall testified that he assisted with the traffic stop and subsequent search. Upon approaching the car, he heard the glove compartment close and saw a passenger reach underneath the front seat. Stovall later tested for fingerprints a weapon recovered from the car, but found none.

Detective James Drehoble testified that he found a 9-millimeter pistol under the front seat as well as a magazine and some loose 9- millimeter rounds. No fingerprints were found on either of the weapons recovered.

Defendant denied knowing about any weapons in the car. He got out of the car before Embry and Huggins, and the first time he saw a gun in the car was just after Huggins got out.

The jury found defendant guilty and the court sentenced him to 18 months' imprisonment. Defendant filed a posttrial motion and a notice of appeal on the same day. The following day, the trial court purportedly denied the posttrial motion.

Before considering the merits of defendant's contentions, we must determine whether we have jurisdiction of this appeal. The records of the circuit court indicate that defendant's posttrial motion was filed on March 26, 1997, and his notice of appeal later that same date. On the next day the court heard and denied the posttrial motion and the defendant, noting that he had already filed a notice of appeal, asked that a new one be filed. It was indicated that the notice of appeal on file would stand as an appeal from the original rulings of the court as well as the denial of the posttrial motions. On that basis, we determine that we have jurisdiction over the appeal. By virtue of the filing of a posttrial motion, a judgment is not final and appealable until the motion is ruled upon by the court. People v. Swiercz, 104 Ill. App. 3d 733 (1982). The original notice of appeal was premature. People v. Whigam, 202 Ill. App. 3d 252, 257 (1990). By requesting a new notice of appeal after the rulings on the posttrial motion, the defendant properly preserved his right to appeal.

Defendant first contends that the trial court erred in permitting the State to amend the information materially on the day of trial. Defendant contends that the insertion of the phrase "about his person" changed the State's theory of the case and therefore prejudiced him.

Initially, we note that defendant waived this issue for review. To preserve an alleged error for appeal, a defendant must both object at trial and include the alleged error in a written posttrial motion. People v. Cloutier, 156 Ill. 2d 483, 507 (1993). Here, defendant objected only generally at the time the State sought the amendment and did not attempt to articulate how he would be prejudiced. Moreover, defendant never properly included this issue in the posttrial motion he did file. Therefore, the issue is waived.

Even if we were to consider the merits of this issue, we would find it to be without merit. Defendant was charged in count I of an information with the unlawful use of weapons and in count II with the unlawful possession of weapons by a felon. On the day of trial, the prosecutor moved to dismiss count II because he had learned that defendant's prior conviction was for a misdemeanor. The State also moved to amend count I ...


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