Appeal from the Circuit Court of Cook County 09 CR 3228 Honorable Vincent M. Gaughan, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion.
Defendant Jermaine Ross was found guilty after a bench trial of aggravated unlawful use of a weapon and of being an armed habitual criminal. He was sentenced to 80 months in the Illinois Department of Corrections on the armed habitual criminal count only; no sentence was imposed for the aggravated unlawful use of a weapon count. 720 ILCS 5/24-1.7 (West 2008). After his posttrial motion was denied, defendant filed this appeal and argues: (1) that the State failed to prove beyond a reasonable doubt that defendant had knowledge of the firearms found behind the driver's seat of an automobile that he did not own; (2) that the armed habitual criminal statute violates federal and State constitutional guarantees of the right to bear arms; and (3) that the statute violates the ex post facto clauses of both the federal and State constitutions since the predicate prior convictions occurred before the effective date of the legislation that created the offense. For the following reasons, we are not persuaded by defendant's claims, and we affirm his conviction.
The facts of this case are highly disputed. Police Officer Conray Jones, a 16-year veteran of the Chicago Police Department, testified that he was with his partner Officer Seaberry in a marked police vehicle when he observed Sylvester Tatum walking toward a vehicle stopped along the curb on West End Avenue near Central Avenue. The police vehicle was 20 to 30 feet from the rear of defendant's vehicle, when he heard Tatum say "rocks and blows" to defendant who was stopped with his vehicle running, window opened, sitting in the driver's side of the vehicle with no passengers. The officer knew that "rocks and blows" was street talk for cocaine and heroin. When Tatum noticed the police vehicle, he walked away from the parked auto. Defendant then exited the vehicle, leaving the auto running. The officers detained defendant and Tatum. Officer Seaberry walked to the stopped vehicle and returned with a 40-caliber handgun with 10 live rounds. The officers then placed defendant under arrest.
Officer Jones' partner, Officer Seaberry, also testified that he heard Tatum say something like "rocks and blows" as they eased behind defendant's vehicle. Officer Seaberry's testimony corroborated the testimony of Officer Jones. After the police detained Tatum and defendant, Officer Seaberry walked over to defendant's vehicle which was still running. While standing outside the vehicle, he observed the butt of a gun on the floor of the back seat, behind the driver's side, next to and partially under a black bag. Officer Seaberry testified that he made this observation from outside the vehicle when the back door was closed. After the State presented certified copies of defendant's convictions for delivery of a controlled substance, it rested its case.
The defense called Elizabeth Gomez, defendant's girlfriend who testified that the vehicle belonged to her. On the morning of defendant's arrest, defendant dropped her off at work at about 9:50 a.m. and at that point in time the only item in the back seat of her vehicle was an infant car seat.
Defendant also testified on his own behalf. Defendant testified that when he drove Gomez's vehicle, the only item in the back seat was the infant car seat and he denied having a gun in his possession. Defendant testified that, after he dropped off Gomez, he picked up his friend, Tyrone Patterson, and then he observed his teenage son, Jamal, on Central Avenue. Defendant stopped and told Jamal that he would be stopping a block away.
When defendant turned onto West End Avenue, he observed Tatum and another friend. Defendant stopped and parked the vehicle and walked across the street to talk to Tatum. Then, an unmarked police vehicle arrived, and a detective told defendant to move his vehicle because it was parked illegally. The unmarked police vehicle then left the area. Defendant then asked his friend Patterson to move the vehicle and defendant's son Jamal approached. Then, the marked police vehicle arrived with Officers Jones and Seaberry.
Patterson also testified for the defense and corroborated most of defendant's testimony. However, he testified that, after he exited the vehicle after parking it, he was walking toward defendant when Jamal arrived. He observed Jamal walk towards the vehicle, open the back door and place a gun under the seat. As Patterson began to tell defendant what Jamal had done, the police arrived and detained everyone, which included defendant, Tatum, Patterson, and Jamal. Patterson had three prior felony convictions and was on parole at the time of the trial.
The defense also introduced 43 seconds of a security camera footage that showed only Officer Seaberry walking to the back seat of the parked vehicle. Defendant testified that the video showed that the vehicle was not running.
III. State's Rebuttal Case
In the State's rebuttal case, Officer Jones testified that there were no other people in the area other than defendant and Tatum.
As noted, defendant was found guilty of aggravated unlawful use of a weapon and of being an armed habitual criminal. He was sentenced to 80 months on the armed habitual criminal count only; and no sentence was given for the aggravated unlawful use of a weapon count.
I. Sufficiency of the Evidence
Defendant first claims that the State failed to prove him guilty, beyond a reasonable doubt, of being an armed habitual criminal. Defendant claims that he was not the owner of the vehicle and that the handgun was behind the driver's seat and out of his view.
When reviewing the sufficiency of the evidence in a criminal case, we must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v. Smith, 185 Ill. 2d 532, 541 (1999). Defendant claims that our standard of review is de novo as the question is purely legal. In re Ryan B., 212 Ill. 2d 226, 231 (2004); People v. Smith, 191 Ill. 2d 408, 411 (2000) (where defendant's challenge to the sufficiency of the evidence "does not question the credibility of the witnesses, but instead questions whether the uncontested facts were sufficient" to convict, "review is de novo"). However, defendant is actually asking this court to review the trial court's factual findings, based on the conflicting testimony between the police officers and the defense witnesses. As a result, this court must review the evidence in the light most favorable to the State. People v. Pryor, 372 Ill. App. 3d 422 (2007). Thus, the issue presented is a question of fact and not of law, and the standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
"[A] reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt." People v. Rowell, 229 Ill. 2d 82, 98 (2008). A reviewing court does not retry the defendant or substitute its judgment for that of the trier of fact with regard to the credibility of witnesses or the weight to be given to each ...