Appeal from the Circuit Court of Cook County Honorable James M. Schreier, Judge Presiding.
The opinion of the court was delivered by: Justice Karnezis
Following a bench trial, defendant Jarien Grant was convicted of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2000)) and sentenced to one year of imprisonment. Defendant now appeals and argues: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) trial counsel was ineffective; (3) trial counsel operated under a conflict of interest; and (4) section 24-1.6(a)(1)(3)(A) of the aggravated unlawful use of a weapon statute is unconstitutional as it is violative of substantive due process (720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2000)). We affirm. On August 25, 2000, at approximately 12:50 a.m., Officer Staggers of the Chicago police department observed a blue four-door vehicle go the wrong way down the one-way street. After activating her emergency lights, she and her partner followed the vehicle in their patrol car for approximately four blocks before the vehicle came to a stop. While following the vehicle, Officer Staggers saw the passenger door open a "crack" while the vehicle was still moving. Officer Staggers ordered the driver, Shawn Rucker*fn1, out of the vehicle. She instructed Rucker to walk toward her and to get on his knees. About three minutes later, defendant, the passenger, was ordered out of the vehicle. Both defendant and Rucker were searched and placed in the rear of the squad car. Officer Staggers searched the vehicle and found a gun on the front passenger bucket seat.
Officer Staggers testified at a hearing on Rucker's motion to suppress statements*fn2 that after she ordered Rucker to his knees, Rucker stated "the gun is mine. I have a F.O.I.D. card." Staggers did not see a gun in Rucker's possession nor did she find a weapon after searching his person. Once at the station and after being given his Miranda rights, Rucker told Officer Staggers that he had bought the gun the previous Tuesday from a location in Dolton. Rucker also told Officer Staggers that he was carrying the gun for protection and that he was showing the gun to defendant.
Officer Staggers was questioned with respect to the reports she generated in this case. She admitted that her report did not contain the statements Rucker made at the scene or at the police station. Officer Staggers also conceded that she had waited until the day of trial to tell the State that Rucker made additional statements at the police station regarding where he got the gun and why he was carrying the gun.
Rucker testified at the hearing on the motion. He stated that he never made any statements to Officer Staggers regarding the gun at the scene and that he had denied knowing of any gun after being confronted with the gun subsequent to the search of the vehicle. He admitted showing Officer Staggers a firearm owner's identification (FOID) card at the police station but denied being given his Miranda rights.
The trial court denied Rucker's motion to suppress statements. Trial was immediately commenced and the court accepted Officer Staggers's testimony at the hearing by way of stipulation at trial.
Officer Staggers then testified at trial and stated that defendant was the passenger in the car being driven by Rucker. After Rucker had been secured in the back of the squad car, she ordered defendant out of the vehicle. Defendant complied, but as he was getting out, she saw him reach back and put something on the seat. Officer Stagger demonstrated for the court how defendant moved when he got out of the car. The court noted that Officer Staggers had two hands moving and placed down on the seat. After defendant exited, Officer Staggers and her partner searched the vehicle and saw a gun lying on the front passenger seat where defendant had been sitting. The gun was uncased and loaded with seven live rounds.
On cross-examination, Officer Staggers stated that during the time period that she and her partner were following the vehicle, she saw the passenger door open a "crack" while the vehicle was still moving, but she did not see anything expelled from the vehicle. She further stated that when she and her partner were following the vehicle, she could not see defendant's hands or if defendant made any shoulder movements. She did not include any of this information in her reports.
At the conclusion of Officer Stagger's testimony, the State rested. Counsel moved for a directed finding. The trial court granted counsel's motion with respect to Rucker. With respect to defendant, the trial court found that the State had failed to prove defendant had any prior felony convictions to sustain a conviction for unlawful use of a weapon by a felon. Therefore, the State could proceed on the lesser offense of aggravated unlawful use of a weapon.
Defendant then testified and stated that he was the passenger in the vehicle being driven by Rucker on the night of August 25, 2000. After Rucker went the wrong way down a one-way street, defendant noticed the patrol car behind them and asked Rucker to pull over. Rucker indicated that he would not pull over because he was "dirty." Defendant understood "dirty" to refer to the fact that Rucker had marijuana in his vehicle. Defendant then fastened his seat belt because he was fearful that Rucker would take off at a high rate of speed to avoid the police. Rucker eventually pulled over about four blocks later.
After the car stopped, the officers ordered defendant and Rucker to put their hands out of the window and requested that Rucker exit the vehicle. They complied. Several minutes later, defendant was ordered out the vehicle. Because his hands were out the window, defendant lowered his left hand to open the door and used his right hand to push the door open. He then used his left hand to unbuckle the seat belt and stepped out the car with his hands in the air.
Defendant testified that the vehicle had a front bench seat. He denied opening the passenger door while the vehicle was moving. He further denied having a gun in his possession and stated that he had not seen a gun anywhere in the vehicle and did not attempt to hide the gun on the seat.
The trial court found defendant guilty of aggravated unlawful use of a weapon in violation of section 24-1.6(a)(1)(3)(A). It is from this judgment that defendant now appeals.
Defendant first argues that the State failed to prove him guilty of aggravated unlawful use of a weapon beyond a reasonable doubt. When a defendant is challenging the sufficiency of the evidence, the relevant inquiry is whether, after viewing all of 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. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999). The trier of fact is in the best position to determine the credibility of the witnesses, to resolve any inconsistencies or conflicts in their testimony, to assess the proper weight to be given to their testimony and to draw reasonable inferences from all of the evidence. People v. Cochran, 323 Ill. App. 3d 669, 679, 753 N.E.2d 1155, 1163 (2001).
To obtain a conviction for aggravated unlawful use of a weapon as charged here, the State must prove that defendant knowingly carried a firearm in a vehicle that was uncased, loaded and immediately accessible at the time of the offense. 720 ILCS 5/24-1.6(a)(1)(3)(A) (West 2000). The defendant need not have actually physically possessed the weapon, as criminal possession may be constructive. People v. Stack, 244 Ill. App. 3d 393, 398, 613 N.E.2d 393, 369 (1993). Where possession is constructive, the State is required to prove that the defendant: (1) had knowledge of the presence of the weapon; and (2) had immediate and exclusive control over the area where the weapon was found. Stack, 244 Ill. App. 3d at 398, 613 N.E.2d at 369.
Here, defendant maintains that the State failed to meet its burden by failing to prove that defendant had knowledge that the weapon was in the vehicle. A defendant's knowledge of the presence of a weapon may be proved by circumstantial evidence. People v. Rangel, 163 Ill. App. 3d 730, 739, 516 N.E.2d 936, 941 (1987). Knowledge may be inferred from several factors including: (1) the visibility of the weapon from defendant's location in the vehicle; (2) the amount of time in which the defendant had an opportunity to observe the weapon; and (3) gestures or movements made by the defendant that would suggest an effort to retrieve or conceal the weapon. People v. Davis, 50 Ill. App. 3d 163, 168, 365 N.E.2d 1135, 1137 (1977).
Our review of the record in the instant case reveals that the State presented sufficient evidence to establish that defendant had constructive possession of the weapon. Although Officer Staggers could not see defendant's hands while he was seated in the passenger seat of the vehicle, when she asked defendant to exit the vehicle, she saw him reach back and put something on the seat. The uncased, loaded weapon was found on the same seat. Because of the location of the gun at the time it was recovered, we can certainly infer that defendant had knowledge of the gun and that the gun was within his immediate and exclusive control. Viewing the evidence in the light most favorable to the State, we find that a reasonable trier of fact could have found sufficient evidence to find defendant guilty of aggravated unlawful use of the weapon.
Defendant next asserts that counsel was ineffective when he failed to call Rucker as a witness to testify that defendant did not know that the gun was in the vehicle. At the hearing on Rucker's motion to suppress statements, Rucker testified that he told Officer Staggers that defendant "didn't know nothing about it," referring to the gun found in the vehicle. Defendant asserts that had counsel called Rucker as a witness at trial to elicit the same testimony, the result of the proceedings would have been different.
To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). A defendant must show that: (1) trial counsel's representation fell below an objective standard of reasonableness, and (2) a reasonable probability exists that, but for counsel's errors, the result of the trial would have been different. Strickland, 466 U.S. ...