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.
Attorneys of Appellant: James E. Chadd, Peter A. Carusona,
and Steven Varel, of State for Appellate Defender’s
Office, of Ottawa, for appellant.
Attorneys of Appellee: 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.
JUSTICE McDADE delivered the judgment of the court, with
opinion.
Justice O'Brien concurred in the judgment and opinion.
OPINION
McDADE, JUSTICE
¶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 (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 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
health issues included diabetes, high blood pressure, chronic
back pain, and depression. He took multiple medications for
his conditions.
¶7
Montgomery testified that he, Wise, and Horne were leaving
Louisville and traveling to Cedar Rapids on June 18. Horne
drove the first 20 miles, and thereafter, Wise drove the
remainder of the trip. Montgomery testified that, when the
police stopped the van, he was seated in the passenger seat,
Horne was seated in the back seat, and Wise was in the
driver's seat driving the van.
¶8
The trial court found Wise guilty of speeding and unlawful
possession of a weapon by a felon and acquitted him of the
remaining charges. The basis for the guilty verdict on the
gun charge was unlawful possession of a weapon by a felon.
The trial court based its verdict on Shamblin's testimony
that Wise knew the gun was in the van and the witnesses'
testimony that Wise had sat in the back seat near the gun for
10-20 minutes at the beginning of the trip. The court did not
believe Burrell's testimony that he mistakenly left the
gun in the van and forgot about it for two weeks. The trial
court sentenced Wise to two years imprisonment and one year
of mandatory supervised release ...