Opinion
1-22-1373
05-13-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DEVON WHITE, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 20 CR 3682 Honorable Michael Hood, Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.
ORDER
PUCINSKI, JUSTICE
¶ 1 Held: We affirm defendant's convictions for aggravated unlawful use of a weapon when the evidence was sufficient to establish his constructive possession of the firearm recovered from the vehicle he drove.
¶ 2 Following a bench trial, defendant Devon White was found guilty of three counts of aggravated unlawful use of a weapon (AUUW), and sentenced to three concurrent two-year sentences. On appeal, defendant contends that the State did not establish his constructive possession of a firearm beyond a reasonable doubt. We affirm.
¶ 3 Defendant was charged by indictment with three counts of AUUW. The counts alleged that defendant, while not on his land or with permission on another's land, possessed an uncased, loaded, and immediately accessible firearm in a vehicle without a currently valid Firearm Owner's Identification (FOID) card and/or Concealed Carry License (CCL). 720 ILCS 5/24-1.6(a)(1), (a)(3)(a-5); (a)(1), (a)(3)(C); (a)(1), (a)(3)(a-5)(C) (West 2020).
¶ 4 At trial, Chicago police officer Michael Donnelly testified that on the afternoon of February 18, 2020, he and his partner, Officer Cynthia Garcia, were in the 600 block of North Rush Street in Chicago, when he observed a vehicle fail to stop at a stop sign. The driver was not wearing a seatbelt. Donnelly activated his vehicle's lights to curb this vehicle. The driver made a motion toward the back of the seat, making a 45-degree turn with his body and, his right arm "going back" to the "driver's side backseat passenger" area behind where he was sitting. The driver then drove in reverse and struck another vehicle. The driver, whom Donnelly identified in court as defendant, fled on foot. Donnelly chased defendant and detained him. During a subsequent conversation, defendant indicated that he ran because his driver's license was revoked. Donnelly asked defendant whether he had a valid FOID card or CCL, and defendant asked why he needed "that" as he did not "have anything."
¶ 5 Donnelly wore a body camera on February 18, 2020. He reviewed the footage prior to trial and asserted that it was a true and accurate depiction of events. The State published the footage, which is included in the record on appeal and this court has viewed.
¶ 6 The footage depicts the foot chase and Donnelly arresting defendant in a parking garage. Defendant states that he "don't got no license" and that his license is revoked. When Donnelly states that defendant did not stop at the stop sign, defendant replies that he "stopped at the stop sign." At one point, Donnelly asks if defendant has a FOID card or CCL. Defendant replies, "No," and that he "don't need no FOID for, I don't have nothing." The dialogue is inaudible for a time, then defendant can be heard to state, "ran" and "I don't got no license."
¶ 7 During cross-examination, Donnelly testified he was directly behind the vehicle when he observed the traffic violation and defendant's movement. Donnelly could not see defendant's hands, but defendant's arm was "up to his elbow" behind his seat, over the console behind him. Defendant looked in Donnelly's direction. There were two passengers in the vehicle, one in the front passenger seat and one in the back seat. Later, defendant was determined to be subject to a warrant. Donnelly was not present when the firearm was recovered and was unaware if the firearm was tested for fingerprints and DNA. The vehicle was not registered to defendant, and Donnelly did not know how long defendant was in the vehicle or if he had previously been in it.
¶ 8 During redirect examination, Donnelly testified that the front passenger was a man and the rear passenger was a woman seated directly behind the passenger seat. No one sat behind where defendant was seated. Donnelly did not remember whether defendant stated that he had an active warrant or if defendant knew about the active warrant when defendant fled.
¶ 9 Garcia testified that she observed a Kia Optima fail to stop at a stop sign. The driver was not wearing a seatbelt. Garcia did not observe the "strap of the seat belt diagonally across the driver." Garcia then observed the driver make a "reaching movement" toward the back and then "back forward to the driver's seat." She did not observe the passengers move. Subsequently, while Donnelly pursued defendant on foot, Garcia instructed the vehicle's passengers to display their hands. The front seat passenger stated there was a firearm in the vehicle. Garcia then recovered a loaded firearm in plain view from the floorboard behind the driver's seat. It resembled a Glock, but was a "Ghost Gun."
¶ 10 Garcia wore a body camera that day and reviewed the footage, which fairly and accurately depicted events, prior to trial. The State published the footage, which is included in the record on appeal and this court has viewed.
¶ 11 The footage depicts the interior of a vehicle. A man in an orange jacket is sitting in the front passenger seat with his hands raised, and a woman is in the back seat. The driver's seat is empty and reclined. The driver's seat seatbelt is fastened such that the shoulder belt is parallel to the seat back cushion and the lap belt rests against the bottom seat cushion. Garcia then opens the rear driver's side door, reaches down, and retrieves a firearm. The footage depicts items on the back seat.
¶ 12 During cross-examination, trial counsel showed Garcia a still frame from the footage and asked her to describe it. Garcia stated that, in the frame, the seatbelt was "affixed to the seat." She did not observe defendant put the seatbelt on after the vehicle was curbed because he was not wearing it "correctly."
¶ 13 The court then inquired whether this was a "situation" where defendant may have been wearing the seatbelt lap belt, but not the shoulder strap. Garcia replied that in her "experience" in order to avoid that "sound" in a vehicle, the seatbelt may "clip[ped] from the back" to silence the sound, but the seatbelt might not be on "at all."
¶ 14 Trial counsel then asked whether the seatbelt was "hanging on the driver's side close to the door." Garcia replied that there was a "strap there," but that the still depicted the strap "at a diagonal, not against the door." Garcia was in the front passenger seat of the police vehicle when she observed defendant turn 45 degrees. The right side of his body "reached over" to the "backside" area of the vehicle. She did not see defendant's hand, only his arm. Garcia agreed that the driver's side seat was "slightly" reclined.
¶ 15 After observing her body camera footage, Garcia estimated the distance between the reclined seat and the back passenger seat as 10 inches and that it "look[ed] like" the firearm was in the center of the floorboard, uncovered by other items. When Garcia approached the driver's side of the vehicle, she did not immediately see the firearm. She did not recall how the firearm was positioned in the vehicle and agreed that the rear passenger had access to it.
¶ 16 The State then entered a stipulation that on February 18, 2020, defendant had not been issued a FOID card or a CCL. The defense entered a stipulation that the Kia Optima was registered to Kyla Nunnallay.
¶ 17 In closing argument, the State asserted that the officers' description of defendant's movement was consistent, and that, after defendant fled, a firearm was recovered from the back seat area. The State further noted that neither officer saw the passengers move, and that only defendant fled. In response, the defense argued that the vehicle contained three people, one of whom was in the back seat, and the officers did not see defendant's hands. Counsel explained that defendant fled because his driver's license was revoked and he had an active arrest warrant. Counsel further noted that defendant did not own the vehicle.
¶ 18 In finding defendant guilty of three counts of AUUW, the trial court held that the officers were credible. The officers were directly behind defendant's vehicle when they observed his "furtive movement." Then, defendant reversed the vehicle and fled, showing consciousness of guilt. The court acknowledged that defendant did not own the vehicle and others were in the vehicle, but found these facts did not defeat defendant's constructive possession of the firearm.
¶ 19 Defendant filed a motion for a new trial. At argument on the motion, trial counsel asserted, relevant here, that the State failed to establish defendant's constructive possession of the firearm. The court denied defendant a new trial. Following argument, the court imposed three concurrent two-year sentences for AUUW.
Although the court orally stated that the "three counts will all merge," this is not reflected on the mittimus.
¶ 20 On appeal, defendant contends that he was not proven guilty beyond a reasonable doubt of AUUW when the State failed to establish his constructive possession of the firearm. He argues that officers did not see anything in his hands and there are other explanations for the movement they observed and for his flight. He further notes that he was not the registered owner of the vehicle and that no physical evidence, such as fingerprints, tied him to the firearm.
¶ 21 When a defendant claims the evidence is insufficient to sustain his conviction, this court must determine whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the offense proved beyond a reasonable doubt. People v. McLaurin, 2020 IL 124563, ¶ 22 (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard applies whether the evidence is direct or circumstantial and does not allow us to substitute our judgment for that of the trier of fact as to witness credibility and the weight of the evidence. People v. Jackson, 232 Ill.2d 246, 280-81 (2009). We will not retry the defendant. People v. Jones, 2023 IL 127810, ¶ 28.
¶ 22 In a bench trial, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences therefrom. People v. Siguenza-Brito, 235 Ill.2d 213, 228 (2009). In weighing the evidence, the court is not required to disregard the inferences that flow naturally from that evidence, nor must it search for any possible explanation consistent with a defendant's innocence and raise it to the level of reasonable doubt. Jackson, 232 Ill.2d at 281. We reverse a criminal conviction only when the evidence is so improbable or unsatisfactory that there is reasonable doubt as to a defendant's guilt. Jones, 2023 IL 127810, ¶ 28.
¶ 23 To prove the offense of AUUW as charged in this case, the State was required to establish, relevant here, that defendant knowingly possessed a firearm in a vehicle without a currently valid FOID card and/or CCL. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(a-5); (a)(1), (a)(3)(C); (a)(1), (a)(3)(a-5)(C) (West 2020).
¶ 24 Possession of a firearm may be actual or constructive. People v. Givens, 237 Ill.2d 311, 335 (2010). As defendant was not found in actual possession of the firearm recovered from behind the driver's seat of the Kia, the State was required to prove constructive possession. People v. McCurine, 2019 IL App (1st) 160817, ¶ 21. Here, defendant's sole contention on appeal is that the evidence was insufficient to establish that he constructively possessed the firearm recovered from behind the driver's seat of the Kia.
¶ 25 To establish constructive possession, the State must prove that the defendant had knowledge of the contraband and exercised immediate and exclusive control over the area where the contraband was found. People v. Wise, 2021 IL 125392, ¶ 25. Constructive possession is often proven entirely by circumstantial evidence. People v. McCarter, 339 Ill.App.3d 876, 879 (2003). "Knowledge may be shown by evidence of a defendant's acts, declarations, or conduct from which it can be inferred that he knew the contraband existed in the place where it was found." People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. Knowledge may also be demonstrated by a defendant's statements or conduct upon encountering the police. People v. Thomas, 2019 IL App (1st) 162791, ¶ 27. "Control is established when a person has the 'intent and capability to maintain control and dominion' over an item, even if he lacks personal present dominion over it." Spencer, 2012 IL App (1st) 102094, ¶ 17 (quoting People v. Frieberg, 147 Ill.2d 326, 361 (1992)).
¶ 26 A defendant's presence in a vehicle is not alone sufficient evidence that he knows a weapon is therein. People v. Bailey, 333 Ill.App.3d 888, 891 (2002). Factors relevant to a defendant's knowledge include (1) whether the weapon was visible to the defendant, (2) the time in which the defendant would have been able to observe the weapon, (3) whether the defendant made gestures indicating an effort to hide or retrieve the weapon, (4) the weapon's size, and (5) whether the defendant had a possessory or ownership interest in the vehicle or the weapon found inside. Id. at 891-92. Knowledge and possession are factual questions to be resolved by the trier of fact. People v. Smith, 2015 IL App (1st) 132176, ¶ 25.
¶ 27 Here, taking the evidence in the light most favorable to the State, a rational trier of fact could have found that defendant constructively possessed the firearm recovered from behind the driver's seat. The testimony at trial established that, while directly behind the Kia, Donnelly and Garcia observed defendant, who was driving but not wearing his seatbelt, turn 45 degrees and reach his arm toward the back seat area of the vehicle. Defendant then unsuccessfully attempted to flee in the Kia before exiting and running away. Garcia recovered a firearm from the floor behind the driver's seat, the area into which Donnelly and Garcia saw him reach.
¶ 28 Thus, the circumstantial evidence showed defendant's "intent and capability" to exercise dominion over the area where the firearm was found. See People v. Jackson, 2019 IL App (1st) 161745, ¶ 27. "[D]irect evidence of a defendant driving a vehicle is surely sufficient evidence of control." People v. Bogan, 2017 IL App (3d) 150156, ¶ 42. Moreover, defendant's action of moving his arm toward the back seat area while the Kia was being curbed by police officers supports the inference that he had knowledge of the firearm. See Thomas, 2019 IL App (1st) 162791, ¶ 27 (knowledge may be inferred from the defendant's statements or conduct upon encountering the police).
¶ 29 Defendant is correct that someone else owned the Kia. However, he was operating the Kia when the officers observed the traffic violations. See Bogan, 2017 IL App (3d) 150156, ¶ 42. The fact that defendant did not own the vehicle did not negate his control over the area where the firearm was recovered, that is, behind his seat in the area into which he was reaching. See People v. Chavez, 327 Ill.App.. 3d 18, 26 (2001) (when contraband is found in a vehicle, "it is control of the vehicle rather than ownership of the vehicle which is pertinent to proof of control of the area" where the contraband is located). In a similar vein, "[t]he law is clear that the exclusive dominion and control required to establish constructive possession is not diminished by evidence of others' access to the contraband." (Internal quotation marks omitted.) Givens, 237 Ill.2d at 338. Thus, that defendant was not the sole occupant of the Kia does not negate his constructive possession of the firearm.
¶ 30 Defendant argues that there were other, innocent, explanations for his movement toward the back seat area. However, the evidence at trial established, not only that he moved his arm toward the back seat area of the Kia, where the firearm was recovered, but that he also reversed the Kia and then fled from the police on foot. "Evidence of flight is admissible as tending to demonstrate a defendant's consciousness of guilt." People v. Moore, 2015 IL App (1st) 140051, ¶ 26; see also Spencer, 2012 IL App (1st) 102094, ¶ 18 (defendant's attempt to flee supported the "reasonable inference" that he had knowledge of the contraband). While defendant offers other "plausible" explanations for his flight-a revoked driver's license and a history of "distrust" between certain communities and the police-a factfinder is not required to disregard the inferences that flow naturally from evidence or search for any possible explanation consistent with a defendant's innocence and raise it to the level of reasonable doubt. Jackson, 232 Ill.2d at 281.
¶ 31 Defendant further argues that no physical evidence, such as DNA or fingerprints, linked him to the firearm. However, as noted, circumstantial evidence alone is sufficient to sustain a conviction. See McCarter, 339 Ill.App.3d at 879 (a defendant's constructive possession of contraband is often proven entirely by circumstantial evidence). "Physical evidence linking [the] defendant with the firearm is not required to establish that he committed the offense." People v. Bobo, 2020 IL App (1st) 182628, ¶ 43.
¶ 32 Accordingly, viewing the evidence in the light most favorable to the State, a rational trier of fact could have concluded that the evidence established that defendant constructively possessed the firearm recovered from behind the driver's seat of the Kia, the seat in which he was sitting. As the evidence was not so unreasonable, improbable, or unsatisfactory that reasonable doubt defendant's guilt remains (Jones, 2023 IL 127810, ¶ 28), we therefore affirm his convictions for AUUW.
¶ 33 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 34 Affirmed.