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People v. Wise

Court of Appeals of Illinois, Third District

September 18, 2019

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Charles P. WISE, Defendant-Appellant.

Page 687

          Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois. Circuit No. 15-CF-170, The Honorable Carol M. Pentuic, Judge, presiding.

         James E. Chadd, Peter A. Carusona, and Steven Varel, of State Appellate Defender’s Office, of Ottawa, for appellant.

         Matthew Schutte, State’s Attorney, of Cambridge (Patrick Delfino, Thomas D. Arado, and Gary F. Gnidovec, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

          OPINION

         McDADE, JUSTICE 

Page 688

         [435 Ill.Dec. 616][¶ 1] Defendant was charged with several offenses and, pertinent to this case, was found guilty of unlawful possession of a weapon by a felon. The trial court based its verdict on testimony that defendant was aware that the gun was in the vehicle and that, at some point, defendant was seated near the firearm. On appeal, defendant argued that the State failed to prove beyond a reasonable doubt that the firearm was "on or about his person" as required by the offense charged. We agree and vacate defendant’s conviction.

         [¶ 2] I. BACKGROUND

         [¶ 3] On June 18, 2015, defendant Charles Wise was charged with unlawful possession of a weapon by a felon under section 24-1.1(a) of the Criminal Code of 2012 (Criminal Code) (720 ILCS 5/24-1.1(a) (West 2014)) and unlawful possession of a controlled substance under section 402(c) of the Criminal Code (720 ILCS 570/402(c) (West 2014)). He was also charged with an open alcohol container violation and with a speeding violation. On June 19, 2015, Wise posted bond and was released from custody. A bench trial commenced in March 2016. The State introduced into evidence a certified copy of Wise’s prior Iowa felony conviction of burglary.

         [¶ 4] The State also presented Illinois State Police Trooper Edwin Shamblin, who testified as follows. On June 18, 2015, he pulled over a 2005 Dodge Caravan minivan for speeding on I-74 in Henry County, Illinois. The inside of the van consisted of three rows of seats and a rear cargo area. The first row had two "bucket" seats, and the second and third rows had bench seating. At the time of the stop, Wise was in the driver’s seat, Darnell Montgomery was in the passenger seat, and Jerry Horne was in the third row on the passenger side. After he smelled a "strong odor of burnt cannabis," Shamblin decided to search the vehicle and discovered two black gloves lying in the third seating row near Horne. Shamblin moved one glove and dislodged a Derringer .357 firearm, which had been inside of it. The gun was completely obscured from view before Shamblin moved the glove. Shamblin believed that the gun was located about 5 to 10 feet away from the driver’s seat where Wise was sitting, and he did not think it was possible for Wise to reach the gun from the driver’s seat. Shamblin arrested Wise and read him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Shamblin further testified that Wise agreed to speak with him and told Shamblin that he knew the firearm was in the van but it was not his; it belonged to his friend Wade Burrell, who sometimes borrowed the van. Burrell purchased the gun at Gander Mountain in Cedar Rapids, Iowa, about three months earlier.

         [¶ 5] The State rested, and the defense presented several witnesses to testify. Burrell testified that he was the owner of the .357 Derringer firearm found inside the van on the night in question and he had legally purchased the gun at Gander Mountain for $400. He borrowed the van from Wise’s brother, Johnny, on May 20, 2015, to run some errands and took the gun with him for his protection. Although he had a valid permit to purchase weapons, he did not have a concealed carry permit. Because of this, he was advised by a Gander Mountain store employee to store the gun as far away from him as possible when traveling with the gun so that it was out of reach. When he borrowed the van on May 20, he placed the gun inside one of the gloves lying in the van and laid the glove in the back seat of the van so that it would

Page 689

[435 Ill.Dec. 617] be out of reach and out of sight while he was driving. He returned the van to Johnny the same day but forgot to take the gun from the van. Burrell never retrieved the gun and forgot that he left the gun in the van. The receipt for the gun purchase was admitted into evidence.

         [¶ 6] Wise testified that he had taken a trip to Louisville, Kentucky, and was returning to Cedar Rapids, Iowa, when he was stopped by the police for speeding. He was driving a van he had borrowed from his brother, Johnny. Horne drove for about 10 minutes into the trip, and Wise drove the remainder of the trip. Wise stated that he did not know that the gun was in the van, and he denied telling Shamblin that he knew the gun was in the van. Wise was physically disabled, and his ...


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