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People v. Gullens

Court of Appeals of Illinois, Third District

October 24, 2017

KEITH R. GULLENS, Defendant-Appellant.

         Appeal from the Circuit Court of the 13th Judicial Circuit, La Salle County, Illinois Circuit No. 15-CF-331 Honorable H. Chris Ryan Jr., Judge, Presiding.

          JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Presiding Justice Holdridge and Justice Lytton concurred in the judgment and opinion.



         ¶ 1 This case exemplifies the adage: "No good deed goes unpunished." Defendant, Keith R. Gullens, argues that the circuit court erred in revoking his conditional discharge for committing the offense of being a felon in possession of a weapon. The evidence at the revocation hearing showed that defendant possessed a firearm, which either his younger brother or a friend (the record is unclear which) had stolen, for approximately 10 minutes for the purpose of returning the firearm to the store. Defendant argues that the affirmative defense of necessity applied to him or, alternatively, fundamental fairness required that the court deny the State's petition to revoke defendant's conditional discharge. We agree.

         ¶ 2 FACTS

         ¶ 3 Previously, defendant pled guilty to theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)) in exchange for a sentence of 30 months' conditional discharge. As terms of his conditional discharge, the court ordered defendant not to violate any criminal statutes and to refrain from possessing a firearm or dangerous weapon. Approximately one month later, the State filed a petition to revoke conditional discharge. The petition alleged that defendant violated his conditional discharge by committing the offense of possession of a weapon by a felon (720 ILCS 5/24-1.1 (West 2016)).

         ¶ 4 The court held a hearing on the State's petition to revoke conditional discharge. The State submitted a certified copy of conviction showing that defendant had been convicted of criminal damage to property, a Class 4 felony, in 2012.

         ¶ 5 The State called Michael Centko as its first witness. Centko testified that he was employed by South Post Guns, a store that sold firearms and related items. On June 20, 2016, defendant came to the store. Centko could not remember if defendant had purchased anything, but said defendant might have purchased some ammunition. Later that day, defendant returned to the store with a Glock 42 and gave it to Centko. Defendant told Centko that his younger brother had stolen the gun. Centko reviewed the store's surveillance footage from earlier that day. The video recording revealed that a man who entered the store with defendant stole the Glock 42 while Centko was in a different area of the store talking to defendant about magazines or cleaning brushes. Centko said he had no reason to believe defendant saw the man take the gun. The State played the video footage from the security camera in court.

         ¶ 6 Detective Brad Demoss testified that he learned that a burglary occurred at South Post Guns on June 22, 2016. While investigating this incident, Demoss learned of an incident that occurred two days prior in which defendant had returned a stolen gun to the store. Demoss reviewed footage from the store's security cameras from June 20. Demoss determined that Gerald Bumper had stolen the gun. After Bumper grabbed the gun, he handed it to Rashad Anchondo. Defendant and Darrell Gullens were in the store when Bumper stole the gun. When defendant returned the gun later that day, Anchondo and Shane Rexroad were with him. Demoss did not speak to Bumper about the incident because Bumper was murdered shortly after the incident. Demoss spoke to defendant about the incident. A video of the interview was played in court.

         ¶ 7 Demoss opined that as soon as defendant grabbed the gun from Anchondo, he violated the law. The following exchange occurred between defense counsel and Demoss on cross-examination:

"Q. Okay. I guess if [defendant] had called the police and said -he still would have been in violation of the law as soon as he grabbed the gun; is that right?
A. If he would have called the police, in my opinion, when he found out that [Anchondo] and [Bumper] had stolen the gun and said this is what happened, this is where the gun is, at that point I would consider him to be a witness as opposed to a suspect.
Q. And you're saying had he never possessed-
A. Had he never possessed the weapon.
Q. Okay. And if he doesn't, if he doesn't-it's all safe to say if he doesn't possess the weapon, he doesn't have control over that item; is that right?
A. That's right.
Q. So, he can't be sure that that item is going to be there when the police show up? The guy could leave; is that right?
A. Yes, sir.
Q. And it's also fair to say that it takes a certain type of criminal to actually steal a gun. That's a ...

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