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People v. Norwood

Court of Appeals of Illinois, Fourth District

May 9, 2018

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
TERRANCE T. NORWOOD, Defendant-Appellant.

          Appeal from the Circuit Court of Macon County No. 14CF1454 Honorable Thomas E. Griffith Jr., Judge Presiding.

          JUSTICE TURNER delivered the judgment of the court, with opinion. Justices Knecht and DeArmond concurred in the judgment and opinion.

          OPINION

          TURNER JUSTICE.

         ¶ 1 On August 20, 2015, after a bench trial, the trial court found defendant guilty of two counts of armed violence. In October 2015, the court sentenced defendant to concurrent 16-year prison sentences. Defendant appeals, arguing the court erred in finding him guilty of armed violence because the State did not establish beyond a reasonable doubt the rifle found in his bedroom was immediately accessible to him when the police entered his bedroom. He also argues the circuit clerk erred in imposing fines on him. We affirm defendant's armed violence convictions but remand this case for the trial court to vacate the fines improperly imposed by the circuit clerk.

         ¶ 2 I. BACKGROUND

         ¶ 3 On November 21, 2014, the State charged defendant by information with two counts of armed violence (720 ILCS 5/33A-2(a), 33A-3(a) (West 2014)). Count I alleged defendant unlawfully possessed with the intent to deliver 1 gram or more but less than 15 grams of a substance containing cocaine while armed with a rifle, a Category I weapon. Count II alleged defendant was armed with the same rifle while unlawfully possessing with the intent to deliver more than 30 grams but less than 500 grams of a substance containing cannabis. Count II was later amended to delete the intent to deliver language. The State also charged defendant with unlawful possession of a controlled substance (more than 1 gram but less than 15 grams of a substance containing cocaine) while within 1000 feet of church property with intent to deliver with a prior unlawful possession of controlled substance with intent to deliver conviction (720 ILCS 570/407(b)(1) (West 2014)) (count III) and unlawful possession of cannabis (more than 30 grams but not more than 500 grams) with a prior unlawful possession of controlled substance with intent to deliver conviction (720 ILCS 550/4(d) (West 2014)) (count IV). Before his bench trial in July 2015, as part of a partial guilty plea with regard to count III and a full guilty plea with regard to count IV, defendant admitted he unlawfully possessed 1 gram or more but less than 15 grams of a substance containing cocaine with the intent to deliver and unlawfully possessed more than 30 grams but not more than 500 grams of a substance containing cannabis. As a result, with regard to the armed violence convictions, the only real issue was whether the State established beyond a reasonable doubt defendant was armed or had immediate access to the rifle found in his bedroom.

         ¶ 4 Detective Adam Walter of the Macon County Sheriff's Department, who was also the team leader for the county's special response team (SRT), testified he assisted Detective Brian Hickey in executing a search warrant at 1644 East Hickory Street in Decatur on November 18, 2014. After entering the residence, Walter immediately went through the house to the southwest bedroom, which the police had determined was defendant's bedroom. Walter estimated it took 10 seconds for him to reach the bedroom door, which was closed. When he opened the bedroom door, defendant was standing naked with his hands up in the air at the foot of the bed near the door. Walter ordered defendant to get on the ground. Defendant laid on the bed. Because defendant was very cooperative, Walter retrieved some pants, which defendant put on. Walter secured defendant with handcuffs in front of his waist. Walter did not see a gun in the bedroom or in defendant's possession.

         ¶ 5 Sergeant Toby Williams of the Decatur Police Department testified he also assisted in executing the search warrant. He found a loaded assault rifle in the far left corner of defendant's bedroom behind a storage container at the furthest point from the bedroom door.

         ¶ 6 Detective Brian Hickey of the Macon County Sheriff's Department testified he entered the residence at 6:55 a.m. after it was secure. He did not see where the gun or defendant was located in the bedroom when Walter opened the bedroom door. Hickey testified Walter advised him defendant was within three feet of the rifle when he placed him under arrest. Defendant advised Hickey the rifle was for home and self-protection.

         ¶ 7 Tykisha Lofton testified that she and defendant, her fiancé, lived together and slept in the southwest bedroom where the police found defendant. When the search occurred, their bed was in the middle of the bedroom, pushed up against the window. They slept with their heads toward the door. She did not know the rifle was in the corner of the room because a stuffed heart toy on top of the plastic case blocked her view. The rifle was 10 feet from the end of the bed. Lofton testified that defendant slept on the side opposite the rifle. However, she told the police defendant slept on the side of the bed nearest the rifle.

         ¶ 8 Defendant recalled Detective Walter as a witness. He testified he never told Detective Hickey that defendant was three feet from the far corner of the room where the gun was later found when Walter entered the bedroom. According to Walter, defendant was toward the middle of the end of the bed near the door. However, Walter was not asked whether defendant was within three feet of the rifle when defendant laid on the bed instead of the floor.

         ¶ 9 The trial court found defendant guilty of both counts of armed violence (counts I and II). In ruling on the armed violence counts, the court stated:

"The standard is immediately accessible. Here are the factors this Court deemed to be significant[.] First of all, it was a very large gun in the corner of the bedroom. The butt of the gun was sticking up just above what looks to be like a type of desk or stool. It is not a situation where it is a small gun buried under a stack of clothes or a situation where the defendant would have to dig through items to have access to the gun.
This Court also believes that at the time of entry, and the phrase in Cervantes is, [']when the police enter, ['] and this is per Ms. Lofton's testimony, that the defendant had been asleep. She told the police that he slept on that side of the bed. He told the police, or the defendant told the police, it was his gun, and he used it for protection purposes. And he had been asleep right beside that gun at the time the police entered the residence. When Detective Walters entered the bedroom, Mrs. Root, you make a good argument, the defendant is at the end of the bed. He is standing up. His arms are up. But, again, he could easily jump across that bed and grab that gun. That gun is still immediately accessible at that point in time. And it is just a case where, in terms of, I simply cannot throw common sense out the window. Common sense to this Court dictates that that gun was immediately accessible to the defendant."

         ¶ 10 On September 17, 2015, defendant filed a posttrial motion, arguing the trial court erred in finding him guilty of armed violence because the weapon in question was not immediately accessible to him at the time of his encounter with the police.

         ¶ 11 On October 14, 2015, the trial court denied defendant's posttrial motion and sentenced defendant to concurrent 16-year prison sentences for defendant's two armed violence convictions.

         ¶ 12 This ...


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