Appeal from the Circuit Court of Cook County, Illinois No. 10 CR 12584 The Honorable Diane Cannon, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Connors concurred in the judgment and opinion.
¶ 1 Defendant, Daniel Wright, was found guilty after a bench trial of one count of aggravated unlawful use of a weapon. 720 ILCS 5/24-1.6 (West 2010). On appeal, at issue is whether the State proved all of the elements of the offense of aggravated unlawful use of a weapon beyond a reasonable doubt. We hold the State failed to satisfy its burden of proving defendant guilty beyond a reasonable doubt because it did not prove that defendant knowingly possessed the weapon that was attributed to him. Therefore, defendant's conviction must be reversed.
¶ 3 The circuit court sentenced defendant on May 18, 2011. Defendant timely filed his notice of appeal on June 7, 2011. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
¶ 5 Defendant was charged by information with two counts of aggravated unlawful use of a weapon. Under both counts, the State alleged defendant "knowingly carried on or about his person, a firearm, at a time when he was not on his own land or in his own abode or fixed place of business." Under the first count, the State further alleged that "the firearm possessed was uncased, loaded and immediately accessible *** in violation of chapter 720, Act 5, Section 24-1.6(a)(1)/(3) (A) of the Illinois Compiled Statutes 1992 as amended." In the second count, the State alleged defendant "was under twenty one years of age and in possession of a handgun, in violation of chapter 720 act 5 section 24-1.6(a)(1)/ (3) (I) of the Illinois Compiled Statutes 1992 as amended." Defendant waived his right to a jury and the case proceeded to a bench trial.
¶ 6 The State called three witnesses: Officers Gena, Laster, and McNamara from the Cook County sheriff's police. The officers were part of a 10-person team executing a search warrant at 42 East 91st Street in Chicago, Illinois, on June 11, 2010, at about 8:15 in the evening.
¶ 7 Officer Gena was the first officer to enter the residence. He described the building as a "single family attached to another single family *** like a duplex." The front door was unlocked. A sergeant from the team announced their office, but the door was not answered. When he entered the residence, he noticed two people about 10 to 12 feet away, who then promptly ran. Officer Gena pursued the two people, who eventually went down the basement stairs. Officer Gena then observed Quentin Mitchell fall over defendant. Officer Gena testified that defendant came to a rest "just to the right of Quentin against the wall coming down." He did not see defendant's hands when defendant was running or falling down the steps. When Mitchell and defendant came to a rest, Officer Gena observed a handgun "just to the left of " and "within inches of Mitchell's left hand." Officer Gena yelled, "gun, gun, gun." At this time, Officer McNamara was directly behind him, weapon drawn, indicating to Mitchell and defendant not to move. Three more officers came down into the basement. Officer Gena recovered the handgun near Mitchell's hand, a "P89 semi-automatic nine millimeter." More officers then came down to the basement. Officer Gena testified that Officer Zach Smith announced there was another gun present. He observed Officer Laster recover the gun and hand it to Officer McNamara, who cleared the gun of its ammunition. The second gun was a "Colt 45," which was attributed to defendant.
¶ 8 At the police station, defendant confirmed to Officer Gena that he lived at 8127 Honore in Chicago, Illinois. Officer Gena also confirmed the following information regarding the residence at 42 East 91st Street: that defendant did not live or work there; that it was not a legitimate business; and that defendant did not own the land. Officer Gena further determined that defendant was under the age of 21. At the police station, five bullets were retrieved from the Colt 45 handgun.
¶ 9 On cross-examination, Officer Gena admitted that at no time did he see a weapon in defendant's hands, nor did he see defendant make any motion that would indicate or suggest that defendant discarded a weapon. Besides Mitchell and defendant, three other people were in the basement when the search warrant was executed. Officer Gena did not see how or when the other three people entered the basement. The other three people were detained briefly before being released. Officer Gena clarified that he did not see the gun attributed to defendant until Officer Laster handed it to Officer McNamara. When asked, "you, yourself never saw the weapon in proximity to [defendant]," Officer Gena answered "correct." He could not answer whether any fingerprints were found on the gun because "did not get a report back" from the laboratory from where the gun attributed to defendant was sent.
¶ 10 Officer Laster entered the residence as part of the "entry team." Upon entry, he first went to clear the upstairs of the house. He heard there was a gun downstairs, so he immediately proceeded to the basement. Officers Smith and Barksdale also went to the basement with him. As Officer Laster proceeded to the basement, Officer Smith was in front of him. Officer Laster saw two people, one of whom was defendant, on the floor against the wall in the basement. Officer Laster testified that "[a]s I came down the steps, I saw a gun protruding from underneath the Defendant." The gun was protruding from the "center mass" or torso area of defendant. Officer Laster noticed the "butt end of the firearm." Defendant was on his stomach at this time. Officer Laster testified defendant's "hands were within the proximity of his torso." The gun was "inches" from defendant's hands. He saw Officer Smith step on defendant's hand and yell out that there was a gun. Officer Laster testified he placed his hand on defendant's torso and removed the weapon. As he was doing so, Officer Laster "kind of pushed [defendant] to the side and *** removed the weapon." He handed Officer McNamara the weapon before handcuffing defendant. Officer Laster testified that "[t]here was a throw rug that was folded up at the bottom of the landing." When asked how the rug was situated in relationship to the gun, Office Laster explained that there was "the floor, throw rug, the gun, then the Defendant on top of it." He testified that he recovered the gun from on top of the throw rug, but under defendant's torso. Officer Laster described the basement area as a "laundry area" that had "other clutter and what not."
¶ 11 On cross-examination, Officer Laster clarified that although he saw the gun "inches" from defendant's hand, he never actually saw the gun in defendant's hand nor did he see defendant make any motion suggesting that he was disposing of the gun. After Officer Laster recovered the weapon, he handcuffed defendant. Officer Laster further testified that three other subjects were in the basement area at the time of the arrest. On re-cross-examination, Officer Laster testified he did not see defendant make any efforts to retrieve the gun. He ...