Appeal from the Circuit Court of Winnebago County. No. 08-CF-4060 Honorable John R. Truitt, Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion. Justices McLaren and Hutchinson concurred in the judgment and opinion.
¶ 1 At issue in this appeal is whether defendant, Anthony J. McIntyre, was proved guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2008)). For the reasons that follow, we determine that he was not. Thus, we reverse his conviction of that offense in addition to his conviction of possession of a weapon without a firearm-owner's identification (FOID) card (430 ILCS 65/2(a)(1) (West 2008)).
¶ 2 At defendant's jury trial it was revealed that, on October 12, 2008, defendant, a convicted felon, accompanied Guadalupe Garcia, who was not a convicted felon, to a bar in Rockford. Garcia had a firearm concealed in the crotch of his pants. Garcia testified that he neither told defendant about the gun nor showed it to him. When the bar closed at around 2 a.m., Garcia was out in the parking lot and a black man confronted him. After Garcia and the black man engaged in a verbal altercation, the black man told Garcia that he had something for him and then drove away. Garcia believed that the black man meant that he had a weapon. Garcia asked defendant to drive him in defendant's Suburban so that he could fight the man. Although defendant initially attempted to dissuade Garcia from doing so, he nevertheless drove Garcia to a home close to the bar.
¶ 3 When defendant pulled up to the home, a black man was standing on the front porch with a woman who was later identified as Spring Starks. Starks testified that she could not see anyone inside of the Suburban. However, she soon noticed that shots were being fired from the Suburban. According to an officer who interviewed Starks after the shooting, Starks told the police that the passenger in the Suburban displayed a handgun out of the window and then fired it. After a few shots were fired, the Suburban remained in front of her house for a few seconds but then left. Starks testified that the Suburban was in front of her home for 1 to 11/2 minutes and that it was parked so that the passenger side of it faced her home. Starks also stated that no one exited the Suburban while it was parked in front of her house.
¶ 4 Soon thereafter, Officer Jessie Geiken was responding to a dispatch concerning the shots fired at Starks' home when he saw defendant speeding. Defendant's Suburban matched the description of the car that was involved in the shooting at Starks' home. Geiken activated the mars lights on his squad car and followed defendant's Suburban. Defendant slowed his car down to 10 miles per hour and eventually stopped a few seconds later and within two blocks.
¶ 5 After the Suburban was stopped, defendant and Garcia were ordered out of the car. When Garcia exited, Geiken could see one or two inches of a gun sticking out from underneath the right side of the front-passenger seat.*fn1 Garcia admitted at trial that he shoved the gun under the seat after leaving Starks' home.
¶ 6 After seeing the gun, Geiken spoke with defendant about the shooting. As relevant here, defendant told Geiken that, when he and Garcia arrived at Starks' home, he exited the Suburban to go fight with the black man. Defendant was walking around the Suburban when he heard shots being fired. Defendant looked back at his car and saw Garcia hanging out of it and firing a handgun at the black man. Defendant, who was surprised by Garcia's actions, returned to his Suburban and attempted to drive home because he wanted to prevent Garcia from shooting the black man. Defendant told Geiken that he had no idea from where the gun had come and that he knew Garcia had the gun only after Garcia started firing it at the black man. As defendant told Geiken about the shooting, defendant appeared to be very upset at Garcia.
¶ 7 At trial, Garcia confirmed that defendant knew nothing about Garcia's plan to fire the gun at the black man and that defendant was surprised and upset about Garcia doing so. However, Garcia also stated that defendant never left the Suburban while it was parked in front of Starks' home. Rather, according to Garcia's testimony, defendant was seated next to Garcia when Garcia pulled the gun out of his crotch and pointed it out of the Suburban and at the black man.
¶ 8 Moreover, Garcia admitted at trial that when he spoke with the police right after the shooting he lied about what had happened. Specifically, when questioned by the police at the scene, Garcia indicated that he did not know anything about the gun found under the seat on which he was sitting. Garcia also never told the police that he went to Starks' home to fight or that he asked defendant to drive him there. Garcia, who was charged with the same offenses as defendant, also admitted at trial that he entered into a plea agreement with the State.*fn2 Pursuant to that agreement, Garcia pleaded guilty to aggravated unlawful use of a weapon and possessing a firearm without a FOID card, in return for a three-year sentence.
¶ 9 The jury, which was instructed on accountability and constructive possession, found defendant guilty of unlawful possession of a weapon by a felon and possession of a firearm without a FOID card. Defendant moved for a new trial, arguing, among other things, that he was not proved guilty beyond a reasonable doubt. The trial court denied the motion, and, after determining that the conviction of possession of a firearm without a FOID card merged into the conviction of unlawful possession of a weapon by a felon, the trial court sentenced defendant to three years' imprisonment. This timely appeal followed.
¶ 10 At issue in this appeal is whether defendant was proved guilty beyond a reasonable doubt of unlawful possession of a weapon by a felon. To prove a defendant guilty of unlawful possession of a weapon by a felon, the State must establish that the defendant (1) knowingly possessed the firearm and (2) had been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2008); People v. Chirchirillo, 393 Ill. App. 3d 916, 922 (2009).
¶ 11 Defendant argues that the evidence failed to establish beyond a reasonable doubt that he was proved guilty either under an accountability theory or as a principal. Concerning his claim that he was not proved guilty as a principal, defendant contends that the State did not prove that he actually possessed the weapon or that he constructively possessed it. In response, the State essentially concedes that the evidence did not establish that defendant had actual possession of the weapon. However, the State argues that defendant was proved ...