Court of Appeals of Illinois, First District, Sixth Division
Rehearing denied March 28, 2017
from the Circuit Court of Cook County, No. 04-CR-24639; the
Hon. Thomas V. Gainer, Judge, presiding.
Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan,
of State Appellate Defender's Office, of Chicago, for
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J.
Spellberg and John E. Nowak, Assistant State's Attorneys,
of counsel), for the People.
JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion. Justices Connors and Harris concurred in the
judgment and opinion.
1 Following a bench trial, the circuit court of Cook County
found defendant Dorian Faulkner guilty of one count of being
an armed habitual criminal (AHC) and two counts of unlawful
use or possession of a weapon by a felon (UUWF) and sentenced
him to six years of imprisonment. On direct appeal, he argues
that (1) his AHC conviction should be reversed because it was
predicated on a prior conviction for aggravated unlawful use
of a weapon (AUUW) that was based on a statute found to be
unconstitutional and void by People v. Aguilar, 2013
IL 112116, and (2) his AHC and UUWF convictions should be
reversed because the State failed to prove beyond a
reasonable doubt that he had constructive possession of the
firearm and ammunition recovered by the police. On August 31,
2015, we issued an opinion affirming the UUWF convictions but
reversing the AHC conviction. People v. Faulkner,
2015 IL App (1st) 132884. In September 2016, our supreme
court issued a supervisory order directing us to reconsider
that judgment in light of its decision in People v.
McFadden, 2016 IL 117424. We now affirm the convictions
for both AHC as well as UUWF.
3 On July 14, 2012, Chicago police officers conducted a
compliance check on the defendant, who was released on
parole for an unrelated crime. At the
defendant's residence at 5210 South Morgan Street, the
police recovered a .223-caliber assault rifle and ammunition
from the attic, after which they arrested the defendant. On
July 26, 2012, the defendant was charged with one count of
being an AHC (count I) and two counts of UUWF (counts II and
III). The AHC charge was predicated upon his two prior
convictions for AUUW under case No. 08 CR 0981001 and
manufacture/delivery of a controlled substance under case No.
09 CR 0948301.
4 On July 16, 2013, a bench trial commenced, during which the
State presented two witnesses. Parole Officer Jack Tweedle
testified that at about 8:30 a.m. on July 14, 2012, he and
Officer Jim Hollenback, with the assistance of four other
officers, conducted a parole compliance check at the
defendant's residence. He described the residence as a
two-story, single-family home. Officer Tweedle testified that
the purpose of the compliance check was to verify that the
defendant was complying with the conditions of his parole
contract. The officers knocked on the door multiple times,
and the defendant took about five minutes to answer it. The
defendant was alone at the time he answered the door. After
entering the residence, Officer Tweedle found about three
grams of cannabis in plain view on a coffee table in the
living room. During the compliance check, the defendant
remained in the living room with Officer Hollenback. Officer
Tweedle described the layout of the residence as having a
small hallway leading from the front door to the living room
area, a bedroom, a kitchen, and an entry leading to an
enclosed back porch from the rear of the kitchen. Stairs led
to the attic via an enclosed back porch. Neither the entry
leading to the enclosed back porch nor the attic had a door.
Officer Tweedle went upstairs and walked through the entire
attic, where he found a loaded .223-caliber assault rifle. A
box of .223-caliber bullets was also found. Officer Tweedle
testified that nothing obscured his view of the rifle. The
police officers confiscated the assault rifle and the box of
5 Officer Cary Pozulp testified that he assisted Officer Tweedle
with the parole compliance check. He stated that the officers
entered the first floor of the South Morgan Street residence
after climbing a flight of exterior stairs. There was a
flight of stairs leading from the first-floor unit to the
attic, which could be accessed by a "closed
dwelling" through the kitchen. There were no locks or
doors barring entry from the first floor into the attic.
Officer Pozulp met Officer Tweedle in the attic, where he
recovered a .223-caliber assault rifle near the entrance of
the attic. Officer Pozulp did not have to move anything to
see the assault rifle, which was only partially covered by a
wooden board. The assault rifle was loaded with one round in
the chamber and had over 40 live rounds in the magazine.
Officer Tweedle then alerted Officer Pozulp to a nearby box
of .223-caliber ammunition, which contained an additional 43
rounds of ammunition. Officer Pozulp testified that, aside
from the defendant and the police officers, no one else was
present in the first-floor unit or in the attic at the time
of the compliance check. He stated that the officers also
recovered about three bags of cannabis from the living room.
The defendant was read his Miranda rights and taken
into police custody. At the police station, Officer Pozulp
and Sergeant Dedore interviewed the defendant. When Officer
Pozulp asked the defendant about the assault rifle, he
replied that "the hood's crazy, we're at war
with these GDs out here, " and that "I'm not
worried about that, and my lawyer will handle this." On
cross-examination, Officer Pozulp noted that, during police
interrogation, the defendant neither stated that the assault
rifle belonged to him nor that it was used "for
protection." However, Officer Pozulp answered
affirmatively when defense counsel asked whether the
defendant had told the police to "go ahead and charge me
with that gun. My lawyer got this."
6 At the close of the State's case-in-chief, the State,
without objection from the defense, entered into evidence
certified copies of the defendant's prior felony
convictions for AUUW (case No. 08 CR 0981001) and
manufacture/delivery of a controlled substance (case No. 09
CR 0948301). These two prior felony convictions were offered
as proof of the requisite predicate offenses supporting the
defendant's AHC charge. After the State rested, the trial
court denied a defense motion for a directed finding.
7 Patricia Faulkner (Patricia) testified as the sole witness
for the defense. She testified that the defendant is her
great-nephew and that she had lived at the 5210 South Morgan
Street residence since about 1980. Patricia stated that her
siblings, Loretta Faulkner (Loretta) and Willie Faulkner
(Willie), owned the building. Patricia lived in the basement,
while the defendant lived in the first-floor unit. The attic
was accessible from the enclosed back porch stairs of the
first-floor unit, and the back porch could be accessed from
the backyard. She stated that before the defendant moved into
the residence in April 2012, other family members brought
furniture and items into the apartment and also "tried
to clear some things out to make the space better for
him." Some items in the attic were there before the
defendant moved into the residence. Much of the furniture
inside the first-floor unit belonged to other family members.
Patricia testified that there were three copies of the key to
the residence, which were held by her and her siblings,
Loretta and Willie. Loretta's key, however, was not
"cut properly" and she no longer possessed it. At
trial, Patricia also identified numerous bills and mailings
that were addressed to different family members at the 5210
South Morgan Street location. She testified that she did not
see the defendant bring a gun into the home in April 2012,
nor did he ever tell her that he had a gun. She also never
observed anyone else bring a gun into the home between April
2012 and July 2012. On cross-examination, Patricia stated
that, at the time the defendant lived in the home, there was
no door separating the attic stairs from the attic. However,
the door separating the enclosed back porch from the backyard
had a lock on it. Both she and the defendant had physical
access to the attic. Before the defendant moved in, other
family members had lived there from time to time, but the
defendant was the only person living in the first-floor unit
at the time of his arrest in the instant case. Patricia
stated that she was not aware that there was a .223-caliber
assault rifle and ammunition in the attic. In order to access
the attic from the basement unit where Patricia lived, she
would have had to walk through the laundry room next to her
apartment and walk up the back stairs.
8 Following closing arguments, the trial court found the
defendant guilty of all charges-one count of AHC and two
counts of UUWF:
"Okay. Yes, this is a case of [ ] constructive
possession, and, yes, other people had access to this
building, according to the testimony of [Patricia], before
the [d]efendant moved in. There is evidence from [Patricia]
that people were bringing things into that [first-floor] unit
*** to make the place habitable for the [d]efendant when he
was paroled in April of 2012.
There is also evidence that the [d]efendant's
grandfather, who is [Patricia]'s brother, had a key.
[Patricia] had a key, and [Patricia's] sister,
apparently, had a key at some point, but that key didn't
work anymore-it wasn't cut right-and it didn't work.
There are-there's access to the attic from the floor that
the [d]efendant was living on; there's access to *** the
attic from [Patricia's] apartment. [Patricia] testified
that she had no idea that the gun was up there, so it clearly
wasn't her gun, even though she had access to *** the
I would note, for the record, that [Patricia] had a
tremendous amount of difficulty walking in and out of the
courtroom. She was aided by a cart that is on wheels that
also has a seat which she sat in when she testified. She did
not take the two or three steps up to the witness stand, and
I asked her to do that only because I thought it would be
more convenient for her.
In any event, even if she could access the attic herself, in
her condition, she clearly said it wasn't her gun, though
she had no idea it was up there.
The fact that her brother, the [d]efendant's grandfather,
had access doesn't mean he was up there. We need to look
at what was up there. This is a very dangerous weapon that
was locked and loaded and ready to go.
Now, that alone would not be enough to prove that this
[d]efendant, beyond a reasonable doubt, possessed that
weapon. But when you combine the fact that this thing was up
there, locked and loaded and ready to go, with the
statement-and I believe the police officers because if the
police officers were making this up, the statement from the
police officers would have been, he admitted that that was
his weapon, he kept it up there for protection.
But that's not what [Officer] Pozulp said. He said,
this-the hood is crazy, we're at war with these GDs.
Which is tantamount to saying, I ...