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 Defenders Office, of Ottawa, for appellant.
Matthew
Schutte, States Attorney, of Cambridge (Patrick Delfino,
Thomas D. Arado, and Gary F. Gnidovec, of States Attorneys
Appellate Prosecutors 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 defendants 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 Wises 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 drivers 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 drivers seat where Wise was
sitting, and he did not think it was possible for Wise to
reach the gun from the drivers 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 Wises
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 ...