Opinion
No. 1-15-0909
08-03-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAVARIUS LENZY, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 14 CR 15217
Honorable Vincent M. Gaughan, Judge, presiding.
JUSTICE HOWSE delivered the judgment of the court.
Presiding Justice Ellis and Justice McBride concurred in the judgment.
ORDER
¶ 1 Held: The evidence was sufficient to prove defendant guilty beyond a reasonable doubt of aggravated unlawful use of a weapon.
¶ 2 Following a jury trial, defendant Javarius Lenzy was found guilty of the offense of aggravated unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1)/(3)(C) (West 2014)) and was sentenced to 12 months and 15 days in prison. On appeal, defendant contends that the evidence was insufficient to convict him of AUUW beyond a reasonable doubt. He asserts that
the testimony of the State's only witness, Lenny Pierri, was incredible, uncorroborated, and "unworthy of belief." For the reasons below, we affirm.
¶ 3 Defendant's conviction arose from an incident that took place on August 14, 2014, which resulted in him being initially charged with six counts of AUUW. At trial, Chicago police officer Lenny Pierri testified that, on the day in question, he was working patrol by himself in the 25th District. He was dressed in plain clothes and had a badge on the front of his pants. At around 6:48 p.m., Officer Pierri turned his unmarked vehicle into an alley near 1540 North LaVergne Avenue, in Chicago, and saw two individuals. The first individual walked toward Officer Pierri's vehicle, and as he got close to Officer Pierri, he turned around to the second individual, identified as defendant, who was about 15 to 20 feet behind him and yelled, "five-oh." Officer Pierri testified that defendant "looked up at me, turned around and changed directions, started heading back towards into the garage." Based on Officer Pierri's experience, "five-oh" is a term "used on the street to warn that police are in the area."
¶ 4 Officer Pierri drove his vehicle toward the garage where he saw defendant standing, got out, and approached defendant, who was about eight to ten feet away. As defendant was walking into the garage, defendant reached into his right pants pocket, removed a sock, and dropped the sock inside the front driver's side window of a vehicle that was parked inside the garage. Officer Pierri saw a person sitting with the door open in the passenger seat of that vehicle. Officer Pierri asked defendant what he had placed in the car. The person in the vehicle fled out of the garage.
¶ 5 Officer Pierri then asked defendant what he had thrown in the car. Defendant responded, "It was just some weed." After asking defendant to put his hands on the car, Officer Pierri retrieved the sock from the driver's seat of the vehicle. In it, Officer Pierri recovered a loaded .22
caliber revolver. Officer Pierri placed defendant into custody. He later inventoried the gun, sock, and ammunition.
¶ 6 On cross-examination, Officer Pierri testified that his unmarked police car was not equipped with squad car video. He did not stop the first individual in the alley who yelled "five-oh" because "you know, he's yelling five-oh. He's warning somebody else based on my experience" and because defendant "was immediately in front of me and his actions caused my reactions." When he saw defendant in the alley, he did not see him doing anything illegal. Officer Pierri confirmed that, at a prior proceeding in this case, he testified that defendant "removed a white sock from his pocket and threw it inside the car." The arrest report that he prepared after the incident did not include a description about the first individual he saw in the alley or any information about the individual who fled from the vehicle.
¶ 7 On redirect examination, Officer Pierri testified that the information about these individuals was not in the report because his investigation was focused on the person he saw with the gun.
¶ 8 The State entered into evidence a certification form from the Illinois State Police certifying that defendant was born on July 27, 1996 and that he had never been issued a Firearm Owner's Identification Card (FOID) by the State of Illinois Department of Police.
¶ 9 The jury found defendant guilty of the offense of AUUW alleged in Count II. The trial court denied defendant's motion for new trial and sentenced him to 12 months and 15 days in prison.
¶ 10 Defendant contends on appeal that the State failed to prove him guilty of AUUW beyond a reasonable doubt. He argues that Officer Pierri's testimony was incredible, uncorroborated, and
"unworthy of belief," and that his testimony connecting defendant to the handgun was "so unreasonable, improbable, and unsatisfactory that it raises a reasonable doubt of guilt." He asserts that it is "unworthy of belief," that, after being warned of the police, defendant would remove a sock with a loaded handgun from "where it had been secreted from view," expose it in plain view of the police, and then "spontaneously confess" that there was illegal contraband in the sock. Defendant requests that we reverse his conviction.
¶ 11 On appeal, when reviewing the sufficiency of the evidence, the question is whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). It is the fact finder's responsibility "to determine the credibility of witnesses, to resolve any conflicts in the evidence and to draw reasonable inferences from the evidence." People v. Teague, 2013 IL App (1st) 110349, ¶ 26. "[A] jury's findings concerning credibility are entitled to great weight" (People v. Wheeler, 226 Ill. 2d 92, 115 (2007)), and, as a reviewing court, we will not substitute our judgment with the fact finder on questions about the weight of the evidence and the credibility of the witnesses (People v. Jackson, 232 Ill. 2d 246, 280-81 (2009)). We will only reverse a conviction if the credibility of the witnesses is so improbable that it raises a reasonable doubt (People v. Mays, 81 Ill. App. 3d 1090, 1099 (1980)), or if the evidence is "so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of defendant's guilt" (People v. Peck, 260 Ill. App. 3d 812, 815 (1994)).
¶ 12 To prove the offense of AUUW alleged in Count II, the State was required to prove that defendant 1) knowingly carried a firearm on or about his person, 2) at a time when he was not
"on his or her land or in his or her abode, legal dwelling, or fixed place of business, or on the land or in the legal dwelling of another person as an invitee with that person's permission, and 3) he had not been issued a currently valid Firearm Owner's Identification Card. 720 ILCS 5/24-1.6(a)(1)/(3)(C) (West 2014).
¶ 13 Here, Officer Pierri testified that he had been a police officer for 17 years and that, after the first individual in the alley yelled "five-oh" to defendant, defendant "looked up" at Officer Pierri, "changed directions, started heading back towards into the garage." Based on Officer Pierri's experience, "five-oh" is a term to "warn that police are in the area." Officer Pierri followed defendant into a garage, and when Officer Pierri was about eight to ten feet away from defendant, he saw defendant remove a sock from his pants pocket and drop it in the open window of a vehicle. The individual sitting in that vehicle fled and, when Officer Pierri asked what defendant had placed in the vehicle, defendant stated, "It was just some weed." Officer Pierri recovered a .22 caliber revolver in the sock. We find that this evidence, viewed in the light most favorable to the State, was sufficient to connect defendant to the recovered handgun and to support his conviction for AUUW.
¶ 14 Defendant contends that Officer Pierri's testimony was incredible, uncorroborated, and "unworthy of belief." We disagree. The jury heard Officer Pierri's testimony described above. At closing argument, defense counsel challenged Officer Pierri's account of the incident, as he argued that defendant was not guilty, because, among other reasons, he never had the gun or the sock, was not in the alley with the sock but was in the garage working on the vehicle, and the individual in the vehicle ran because it was his gun. Based on the jury's guilty finding, it is evident that the jury accepted Officer Pierri's account of the incident and that it concluded that
Officer Pierri's testimony was credible, which was its prerogative in its role as the fact finder. People v. Moody, 2016 IL App (1st) 130071, ¶ 52 (where the defendant argued that a witness was not credible because he had a motive to testify falsely, this court noted, "Based on defendant's conviction, it appears that the jury found [the witness's] testimony credible. This was its prerogative in its role as the trier of fact."). We will not substitute our judgment for that of the fact finder on its credibility finding. People v. Tabb, 374 Ill. App. 3d 680, 692 (2007). From our review of the record, we cannot conclude that Officer Pierri's testimony was incredible as to raise a reasonable doubt of guilt. See People v. Cunningham, 212 Ill. 2d 274, 282-84 (2004).
¶ 15 Moreover, we will not reverse defendant's conviction simply because he claims that Officer Pierri's testimony was incredible and unworthy of belief. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009) ("A reviewing court will not reverse a conviction simply because the evidence is contradictory [citation.] or because the defendant claims that a witness was not credible."). Furthermore, it is well settled that the testimony of a single witness - Officer Pierri - if positive and credible, is sufficient to convict. Siguenza-Brito, 235 Ill. 2d at 228. Officer Pierri's testimony was sufficient to connect defendant to the recovered handgun and to support his conviction. In addition, to determine whether reasonable doubt existed, "[t]he jury need not search out explanations consistent with the defendant's innocence." Tabb, 374 Ill. App. 3d at 692. Accordingly, we find that the State's evidence was sufficient for the jury to reasonably conclude that defendant was guilty of AUUW beyond a reasonable doubt.
¶ 16 To support his argument that Officer Pierri's testimony was unworthy of belief, defendant cites People v. Warren, 40 Ill. App. 3d 1008 (1976). In Warren, a police officer
testified that he saw the defendant sitting in a vehicle with an open bag of marijuana between his feet. Warren, 40 Ill. App. 3d 1009. The defendant testified that he never possessed the bag of marijuana and that the officers recovered only one bag after they searched under the front seat. Id. In reversing the defendant's conviction, this court noted that, while the trial court disbelieved defendant's testimony, "it is equally clear from the judge's comments that he found it difficult to believe the police officer's testimony," and that the trial court indicated "continuous doubts as to defendant's guilt." Id. at 1011. Unlike Warren, where the record supported that the trial court indicated "continuous doubts" as to the defendant's guilt, here, no such doubts were expressed by the trier of fact, the jury. Therefore, we do not find Warren persuasive for our analysis.
¶ 17 We note that, to support his argument that Officer Pierri's testimony was incredible and unworthy of belief, defendant cited and attached to his brief various newspaper articles relating to police officer testimony and perjury. The State requests that we strike these portions of defendant's brief because they were not presented to the trial court and do not relate to the facts of this case. We agree. To the extent that defendant requests that we rely on these articles for their substance and findings, or requests that we apply the findings to Officer Pierri's testimony, we strike the portions of defendant's brief citing and discussing these articles. People v. Magee, 374 Ill. App. 3d 1024, 1030 (2007) (striking portions of the defendant's brief that discussed psychological studies because they were not presented at trial and were not in the record on appeal, noting that the defendant submitted the articles for "their substance and ultimate findings" and that "there is an existing concern regarding hearsay, in that the author cannot be observed or cross-examined").
¶ 18 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 19 Affirmed.