Appeal from Circuit Court of Macon County No. 00CF395 Honorable Scott B. Diamond, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
After a jury trial in Macon county circuit court, defendant, Thaddeus Neylon, was found guilty of armed violence (personally discharging a firearm while committing a felony not excepted by statute) (720 ILCS 5/33A-2(b) (West 2000)), armed violence (armed with a firearm while committing a felony not excepted by statute) (720 ILCS 5/33A-2(a) (West 2000)), unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(c) (West 2000)), and unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2000)). At sentencing, the trial court found the two armed violence convictions merged and sentenced defendant to a prison term of 20 years on armed violence (discharging a firearm) and concurrent terms of four years and one year, respectively, for unlawful possession of a controlled substance with intent to deliver and unlawful possession of cannabis with intent to deliver.
Defendant appealed, claiming (1) armed violence (personally discharging a firearm) was not a statutory offense at the time of the charged act; (2) the statute providing for the offense of armed violence (personally discharging a firearm) did not have a penalty provision in effect on the date he committed the charged act; (3) the State failed to provide sufficient evidence to support any of the four convictions; (4) trial counsel provided ineffective assistance; and (5) the trial court abused its discretion in sentencing defendant for armed violence (personally discharging a firearm). We affirm in part, reverse in part, and remand for issuance of an amended judgment of sentence.
Evidence for the State at trial was as follows: On March 13, 2000, Decatur police officer Marty Lowhorn was sent to investigate a "shots fired" call on the 400 block of E. Grand Street at approximately 11:59 a.m. He arrived at the scene and saw Officer Thomas handcuffing defendant in front of the house at 431 E. Grand. Defendant was placed in Officer Lowhorn's car. After speaking with several witnesses in the area, Officer Lowhorn looked on the east side of the house and found five spent .38 caliber shell casings in the grass and dirt between the house at 431 E. Grand and the vacant house next door. Officer Lowhorn asked defendant if he could search the house at 431 E. Grand for a weapon and defendant replied it was not his house.
At that time, Teresa Jenkins arrived and was asked permission to search the house. Defendant asked to speak to Jenkins and was allowed to do so. Jenkins then told Officer Lowhorn she would take him to a gun. Jenkins pointed out a closet in one of the bedrooms where Officer Lowhorn found a .38-caliber semiautomatic pistol. The magazine was empty and the pistol was not loaded.
A car parked behind the house had license plate THADD 20. Officer Lowhorn searched the vehicle and found a box of live .38-caliber cartridges.
As Officer Lowhorn was transporting defendant to the police station, defendant told him he had heard Lowhorn talking and Lowhorn did not have any witnesses who saw defendant shoot because Lowhorn had been inside. Defendant also stated lots of people have a range in their house.
Jeff McClain, an inspector with the Illinois State Police Drug Task Force, took part in searching the house at 431 E. Grand on March 13, 2000, after Jenkins gave her consent. In the top drawer of a dresser located in one of the bedrooms, he found a plastic bag containing what were later identified by Michael Cravens, a forensic scientist at the Illinois State Police forensic laboratory specializing in drug analysis, as a 12.8-gram bag of cocaine and two bags containing 13.6 grams of cannabis. McClain found a small electronic digital scale and a postal scale in the same dresser drawer. Cravens later found cocaine and cannabis residue on the digital scale. A rolled-up shirt containing a 9-millimeter magazine containing eight live rounds of ammunition and several documents with defendant's name on them for that address were also found in the same dresser drawer.
On the rear porch of the residence was a refrigerator. McClain found a small plastic bag, which Cravens later found contained .2 grams of cocaine, on top of that refrigerator.
When arrested, defendant had $770 on his person. At the police station, defendant admitted ownership of the 9-millimeter magazine and digital scale, claiming he found the magazine and had been given the scale. He denied knowledge of the narcotics. He claimed Jenkins' brother did not like him and told him he was going to set him up by planting drugs. Defendant also told McClain he was under the impression it was permissible to shoot a gun on his own property.
Officer Edward Root, a Decatur police officer assigned to the Illinois State Police Narcotics Task Force, testified as an expert on narcotics distribution and use. He stated the scales found were used in the distribution of narcotics because dealers, not users, typically measure the amount of drugs. In addition, he testified the amounts of cocaine and cannabis found were greater than user quantities. He also stated firearms are commonly found in the drug distribution business because of the large sums of money involved.
Vicky Will testified she is a forensic scientist with the Illinois State Police crime lab specializing in firearms identifications. She tested the five spent .38-caliber shell casings with new castings she fired from the .38-caliber gun found in the closet. Three of the five tested were identified as having been fired from the gun.
Teresa Jenkins testified for the defense. Jenkins rents the house at 431 E. Grand and lives there with her children and, more recently, defendant. She and defendant left for a weekend in Chicago on March 10 and returned on the morning of March 13, 2000. Prior to leaving, Jenkins gave keys to her home to Patricia Brooke, a former neighbor, to clean the house, and to John Cummings, a relative of her stepfather, to check on the house occasionally.
Jenkins left the home around 11 a.m. on March 13, 2000, to get lunch, and, when she returned, the police were there. After a discussion with defendant, Jenkins gave police permission to search the house. She knew defendant had a gun but thought he had left it at his mother's home in Chicago. Defendant told her where the gun was, and she showed the police. Jenkins consented to a further search of the house. She had no idea there was cannabis or cocaine in the top dresser drawer. Both she and defendant had items in that drawer. Jenkins had two cellular phones there as well as paper, bills, and receipts in her name; she had placed defendant's papers there as well. Jenkins identified the room where the dresser was located as her and defendant's bedroom.
John Cummings testified he got a set of keys from Jenkins on March 9 or 10 to use her van and to check on her house over the weekend. When he checked on the house, he found Brooke having a party with three men who were smoking pot in the living room. He also smelled the burning odor of crack cocaine in the house. Cummings started to look around the house and saw Brooke coming out of Jenkins' bedroom. He asked her what she was doing there. He took back the key to the house from Brooke, put everyone out of the house, and locked it up.
The jury found defendant guilty of (1) unlawful possession of a controlled substance with intent to deliver, (2) unlawful possession of cannabis with intent to deliver, (3) armed violence (armed with a handgun), and (4) armed violence (personally discharging a handgun).
Defendant contends the State failed to prove him guilty beyond a reasonable doubt of armed violence (personally discharging a firearm) as the evidence was insufficient to ...