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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.

          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 ...


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