Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 12 CR 17000. Honorable James Michael Obbish, Judge Presiding.
For APPELLANT: Michael J. Pelletier, Alan D. Goldberg, Kathleen Hill, Office of the State Appellate Defender, Chicago, IL.
For APPELLEE: Anita Alvarez, Alan J. Spellberg, Mary P. Needham, Brian K. Hodes, Cook County State's Attorney, Chicago, IL.
Lavin, Justice concurred in the judgment and opinion. Justice Hyman dissented, with opinion.
[¶1] Following a bench trial, defendant Daniel Smith was convicted of aggravated unlawful use of weapon (AUUW) and was sentenced to one year of probation. Smith appeals, claiming that the State failed to establish the corpus delicti of the charged crime because there was no independent evidence corroborating his statements claiming ownership of the bag containing the weapon. Smith also challenges the sufficiency of the evidence claiming there was no evidence that he knowingly possessed the gun. Because we find that the State offered sufficient evidence to establish the corpus delicti and Smith's guilt of AUUW beyond a reasonable doubt, we affirm. We agree with the parties that the trial court erroneously assessed a $100 street gang fine because there is no evidence in the record identifying Smith as a member of a street gang when he committed the AUUW offense. Thus, we instruct the clerk of the circuit court to reduce by $100 the amount of fines originally assessed and modify the order assessing fines, fees and costs to reflect the corrected amended total of $760.
[¶3] On September 2, 2012, Smith was arrested at a Greyhound bus station in Chicago and was later charged with six counts of AUUW. At the time of his arrest, Smith was 19 years old and did not have a valid firearm owner's identification card. The following relevant evidence was adduced at the bench trial.
[¶4] On September 2, James Sorrell worked as a bus driver for Greyhound on a route originating in St. Louis and ending in Chicago. At a scheduled stop in Markham, Sorrell assisted passengers exiting the bus at that stop unload their bags from underneath the bus. Smith was the only passenger boarding the bus at Markham. Sorrell verified Smith's bus ticket outside before they both boarded the bus--Smith first, followed by Sorrell. Sorrell did not recall whether Smith was carrying a bag when he boarded the bus. Through the bus's rearview mirror, Sorrell saw Smith sit in the last row on the bus and the bus then departed Markham en route to Chicago.
[¶5] At 10:30 a.m., the bus arrived at the Greyhound bus station located at 620 West Harrison Street in Chicago. After all passengers exited the bus, Sorrell conducted a " post-trip" or " sweep" where he checked the bus to ensure that no passengers remained on the bus and no personal belongings were left behind by passengers. During the inspection, Sorrell found a red and black backpack on the last aisle seat on the passenger side of the bus. The bag's zipper was unzipped, and Sorrell saw what he believed to be the butt of a stainless steel .45-caliber handgun inside the bag. Sorrell picked the bag up and carried it off the bus planning to surrender it to his supervisor because he believed it contained a gun. After Sorrell walked off the bus, Smith approached him and said the bag was his. Sorrell asked Smith what was inside the bag without revealing the bag's contents and Smith answered " nothing but a BB gun." Sorrell responded that the gun looked like a real gun and he was turning the bag in to his supervisor. The conversation then ended and Sorrell walked to his supervisor's office.
[¶6] Sorrell informed his supervisor that he believed he found a gun on the bus and gave her the bag with the gun still inside. Sorrell's supervisor contacted Greyhound's security office regarding the possible weapon found on the bus and security officer Michael Pinzine, who was also an
off-duty Chicago police officer, responded to the call. After Officer Pinzine arrived at the supervisor's office, he removed the gun from inside the bag and cleared the gun of ammunition. Officer Pinzine asked Sorrell where the passenger who owned the bag was and Sorrell responded that Smith was still standing by the bus.
[¶7] Officer Pinzine elaborated that after he looked inside the bag, he saw the word " Ruger" --the name of a gun manufacturer--on the side of the gun. Officer Pinzine described the handgun as a semiautomatic, bluesteel handgun that had one live round in its chamber. After Sorrell identified Smith as the passenger claiming to own the bag, Officer Pinzine approached Smith, who was outside sitting by a garbage can next to where buses pull into the station. Officer Pinzine identified himself as a Chicago police officer, placed Smith under arrest and took him to the security office while waiting for on-duty police officers to arrive. The parties stipulated that Smith was under the age of 21 at the time of his arrest. The State then rested.
[¶8] Smith moved for a directed finding asserting that the State offered his statement claiming to own the bag with the gun inside as the only evidence connecting him to the bag and gun, which was insufficient evidence to convict him. The trial court denied the motion and Smith testified on his own behalf.
[¶9] According to Smith, he boarded the bus at Markham with a single camouflage duffel bag about three feet in length and kept the bag on his lap the entire bus ride from Markham to Chicago. Smith stated that the bus was about full and he sat in the fourth or fifth row, but not in the last row. Smith saw the bag " that everyone is talking about" as soon as he boarded the bus because it was on a platform area at the front of the bus. Smith noticed the bag but had nothing to do with it, and he remained in his seat the entire bus ride to Chicago.
[¶10] When the bus arrived in Chicago, Smith exited the bus with his one camouflage bag. After he was off the bus, Smith saw a huddle of three bus drivers--including Sorrell--standing in a circle all looking inside a bag. Smith approached the huddle because he was " being nosy" and told the group " that bag looks like a bag that I have." Smith testified that he did not have the bag with him at that time, but he had a bag at home that was similar to the bag the group was discussing.
[¶11] Smith further testified that Sorrell then showed him the gun and asked him, " What is this?" Smith answered that it looked like a BB gun. Sorrell informed him that if the bag was his, he needed to go inside to claim it. Smith shook his head and said " it's not my bag." Smith then sat on his bag located near a garbage can. Shortly thereafter, Officer Pinzine approached him, handcuffed him and searched him, finding his bus ticket. Officer Pinzine took Smith to an office inside the bus station and emptied the bag, showing its contents to Smith, who claimed to see a state identification card belonging to someone else, another bus ticket and mail belonging to someone else.
[¶12] The defense rested and the State called Officer Pinzine in rebuttal. Officer Pinzine testified that he did not find an identification card belonging to another individual inside the bag. Officer Pinzine did find a piece of mail inside the bag, but he did not believe he showed it to Smith. According to Officer Pinzine, neither he nor his partner emptied the contents of the bag in front of Smith.
[¶13] At the close of evidence and argument, the trial court found Smith guilty of one count of AUUW--that he knowingly carried in a vehicle a firearm and was
under 21 years of age when he was in possession of the firearm. 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012). The trial court explained that Sorrell's testimony was " very credible," but the same could not be said about Smith's testimony. The trial court elaborated that " Smith's testimony sadly was not credible at all compared to the testimony of Sorrell. *** Smith's statements really defy common sense," and the court found it unlikely that he would have made the statements he claimed to have made to the group inspecting the backpack. Because there was only one gun, the trial court stated that there would only be one guilty finding.
[¶14] Smith filed a motion for acquittal or in the alternative a new trial, asserting that the State failed to prove him guilty beyond a reasonable doubt and the corpus delicti of the crime because the State only offered as evidence his confession that he owned the bag containing the gun, which was not independently corroborated with any additional evidence establishing actual or constructive possession. The trial court denied Smith's motion reasoning that the corpus delicti was the actual gun recovered from the bag. The trial court sentenced Smith to one ...