Court of Appeals of Illinois, First District, Second Division
In a prosecution for aggravated unlawful use of a weapon arising from an incident wherein defendant and another man ran from the police as a search warrant was being executed and they were apprehended after they fell down some stairs and two weapons were found near the men, defendant’s conviction was reversed on the ground that the State failed to prove that defendant knowingly possessed the weapon attributed to him, since there was no testimony that defendant had the weapon in his hand or was making any motion suggesting that he was disposing of the weapon, three other individuals were present, and no physical evidence linked defendant to the weapon.
Appeal from the Circuit Court of Cook County, No. 10-CR-12584 (02); the Hon. Diane Cannon, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Peter Sgro, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Peter Maltese, Assistant State's Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Quinn and Connors concurred in the judgment and opinion.
HARRIS, PRESIDING JUSTICE.
¶ 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.
¶ 2 JURISDICTION
¶ 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).
¶ 4 BACKGROUND
¶ 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 ...