Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County No. 11 CR 19883 Honorable Luciano Panici, Judge Presiding.
JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Robert Sams was convicted of unlawful use of a weapon by a felon and sentenced to two years' imprisonment. He now appeals his conviction, challenging both the sufficiency of the evidence and the admission of hearsay. We reverse his conviction outright, because the State failed to prove him guilty beyond a reasonable doubt.
¶ 2 BACKGROUND
¶ 3 Defendant moved in limine to exclude recordings of and reference to two 911 calls placed by unidentified callers, arguing that the calls' content constituted hearsay and the prejudicial effect outweighed any probative value. The trial court found that the calls fell under the excited utterance exception to the hearsay rule and denied defendant's motion.
¶ 4 The State presented three witnesses at trial. Michelle Smado, a 911 dispatcher, testified that she received two telephone calls after 7:20 p.m. on October 31, 2011. Over defendant's objection, the State played a recording of the calls for the jury. The first caller, an unidentified male, asked Smado to dispatch police to 611 Andover Street in Chicago Heights, Illinois. The caller did not describe why assistance was needed. The second caller, an unidentified woman, stated that a man had pointed a gun at her son at 611 Andover Street. She did not indicate, however, whether she was able to see the man or the gun or if she had simply received this information from another person. After repeated questioning by Smado, the caller stated that the person in possession of the gun was "Robert Senior, " "the daddy, " and "Robert Louis Sams." The caller gave no description of the person or the gun. Smado dispatched police to 611 Andover Street and relayed the information she had received.
¶ 5 Officer David Long testified that, on October 31, 2011, he and Officer Nick Giudotti responded to a call regarding a disturbance at 611 Andover Street. The dispatcher described neither the man nor the gun, but Long believed she may have provided a name, though he did not "a hundred percent recall." Upon arrival, Long observed a man crying and a woman screaming in the driveway. As Long spoke to the man and woman, defendant exited the residence and was arrested. Per a request from the man in the driveway, Long and Giudotti entered the home and checked on an elderly woman inside. As they left, they saw that the living room was in a state of disarray, and there was an apparent bloodstain on the couch. The homeowner arrived and consented to a search of the home. Upon reentering the home, Long saw a shotgun underneath the couch and a live shotgun round under an end table. He never saw defendant in possession of a gun. Long later learned that defendant did not reside at 611 Andover Street.
¶ 6 Detective Stuart Murtaugh testified that he and Detective Steve Bakowski responded to a call regarding a disturbance at 611 Andover Street. The dispatcher did not describe the gun or the person allegedly in possession of the gun. Defendant had already been arrested by the time Murtaugh arrived. Murtaugh was present when Officers Long and Giudotti reentered the residence and discovered a gun. He also entered the house and saw a bloodstain on the sofa and a shotgun underneath it, as well as an unfired shotgun shell underneath an end table. He photographed the scene and collected evidence. Murtaugh never saw defendant in possession of a gun.
¶ 7 The State rested after introducing a certified copy of defendant's previous attempted burglary conviction. Defendant presented no evidence. The jury found defendant guilty of unlawful possession of a weapon by a felon. The trial court sentenced him to two years' imprisonment and one year of mandatory supervised release. Defendant timely appealed.
¶ 8 ANALYSIS
¶ 9 Defendant first argues that the State failed to prove him guilty beyond a reasonable doubt. The State must prove each element of an offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 315-16 (1979); In re Winship, 397 U.S. 358, 361-64 (1970). Where a defendant alleges on appeal that the State failed to meet this burden, a reviewing court, considering the evidence in the light most favorable to the prosecution, must determine whether any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime. Jackson, 443 U.S. at 318-19. We must carefully examine the evidence, while considering that the trier of fact saw and heard the witnesses. People v. Smith, 185 Ill.2d 532, 541 (1999).
¶ 10 To sustain a conviction for unlawful possession of a weapon by a felon, the State must prove defendant (1) knowingly possessed a weapon, and (2) was previously convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2010); People v. Rangel, 163 Ill.App.3d 730, 739 (1987). When a defendant is not found in actual possession of a weapon, the State must prove constructive possession. People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. To establish constructive possession, the State must prove beyond a reasonable doubt that a defendant (1) knew a firearm was present; and (2) exercised immediate and exclusive control over the area where the firearm was found. Id.; People v. McCarter, 339 Ill.App.3d 876, 879 (2003). The State may establish knowledge through evidence of a defendant's acts, declarations, or conduct, from which it may be inferred that he knew of the firearm's presence. People v. Beverly, 278 Ill.App.3d 794, 798 (1996). A defendant's control over the location where a weapon is found gives rise to an inference that he possesses that weapon. Spencer, 2012 IL App (1st) 102094, ¶ 17. Habitation in the residence in which the firearm is found is sufficient evidence of control to establish constructive possession. Id.
¶ 11 Here, it is undisputed that defendant has a prior felony conviction. We turn, then, to whether the State established beyond a reasonable doubt that he knowingly possessed a weapon. We hold that the State failed to prove beyond a reasonable doubt that defendant knew of the firearm's presence ...