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People v. Alston, No. 2-97-0391 2nd Dist. 2/1/99 |
No. 2--97--0391
February 1, 1999
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
OF ILLINOIS, Plaintiff-Appellee, v. STEVEN C. ALSTON, Defendant-Appellant. of Stephenson County. No. 96--CF--334 Honorable Barry R. Anderson, Judge,
Presiding. ________________________________________________________________ JUSTICE RAPP delivered the opinion of the
court: Defendant, Steven C. Alston, was convicted of the
unlawful use of weapons (720 ILCS 5/24--1(a)(4) (West 1994)) and sentenced to 18
months' imprisonment. He appeals, contending that (1) the trial court erred by
permitting the State to amend the information on the day of trial; (2) the
evidence was insufficient to prove him guilty beyond a reasonable doubt; and (3)
the court erred by giving the State's tendered jury instruction on constructive
possession. Freeport police officer Craig Wainman testified that
on the evening of September 8, 1995, he received reports that a patrol officer
had seen an unfamiliar car in his area and that the registered owner had an
outstanding warrant. Wainman soon came upon the suspect car. When he observed
that the car's registration sticker was expired, he pulled it over. Wainman asked for and received permission to search
the car from the driver, Thomas Fort. Wainman had Fort and his three passengers
get out of the car. Travoie Huggins was the passenger in the front seat, while
defendant and Dion Embry occupied the backseat. At trial, Wainman could not
recall on which side of the backseat defendant was sitting. When Wainman opened the back door, he saw a pistol
sticking out from the backseat. The gun had been wedged between the seat and the
back, with the grip and trigger guard visible. It was loaded with twelve
9-millimeter shells in the magazine and one in the chamber. Wainman testified
that the gun would have been between the backseat passengers and accessible to
either one. Only about 12 inches separated the backseat passengers. Officer Steven Stovall testified that he assisted
with the traffic stop and subsequent search. Upon approaching the car, he heard
the glove compartment close and saw a passenger reach underneath the front seat.
Stovall later tested for fingerprints a weapon recovered from the car, but found
none. Detective James Drehoble testified that he found a
9-millimeter pistol under the front seat as well as a magazine and some loose
9-millimeter rounds. No fingerprints were found on either of the weapons
recovered. Defendant denied knowing about any weapons in the
car. He got out of the car before Embry and Huggins, and the first time he saw a
gun in the car was just after Huggins got out. The jury found defendant guilty and the court
sentenced him to 18 months' imprisonment. Defendant filed a posttrial motion and
a notice of appeal on the same day. The following day, the trial court
purportedly denied the posttrial motion. Before considering the merits of defendant's
contentions, we must determine whether we have jurisdiction of this appeal. The
records of the circuit court indicate that defendant's posttrial motion was
filed on March 26, 1997, and his notice of appeal later that same date. On the
next day the court heard and denied the posttrial motion and the defendant,
noting that he had already filed a notice of appeal, asked that a new one be
filed. It was indicated that the notice of appeal on file would stand as an
appeal from the original rulings of the court as well as the denial of the
posttrial motions. On that basis, we determine that we have jurisdiction over
the appeal. By virtue of the filing of a posttrial motion, a judgment is not
final and appealable until the motion is ruled upon by the court. People v.
Swiercz, 104 Ill. App. 3d 733 (1982). The original notice of appeal was
premature. People v. Whigam, 202 Ill. App. 3d 252, 257 (1990). By
requesting a new notice of appeal after the rulings on the posttrial motion, the
defendant properly preserved his right to appeal. Defendant first contends that the trial court erred
in permitting the State to amend the information materially on the day of trial.
Defendant contends that the insertion of the phrase "about his person" changed
the State's theory of the case and therefore prejudiced him. Initially, we note that defendant waived this issue
for review. To preserve an alleged error for appeal, a defendant must both
object at trial and include the alleged error in a written posttrial motion.
People v. Cloutier, 156 Ill. 2d 483, 507 (1993). Here, defendant
objected only generally at the time the State sought the amendment and did not
attempt to articulate how he would be prejudiced. Moreover, defendant never
properly included this issue in the posttrial motion he did file. Therefore, the
issue is waived. Even if we were to consider the merits of this
issue, we would find it to be without merit. Defendant was charged in count I of
an information with the unlawful use of weapons and in count II with the
unlawful possession of weapons by a felon. On the day of trial, the prosecutor
moved to dismiss count II because he had learned that defendant's prior
conviction was for a misdemeanor. The State also moved to amend count I by
adding the phrase "about his person" to the description of the offense. The
court allowed the amendment. An information may be amended at any time to correct
formal defects. 725 ILCS 5/111--5 (West 1996). The amendment is permissible if
the change is not material or does not alter the nature and elements of the
offense charged. People v. Flores, 250 Ill. App. 3d 399, 402 (1993). A
formal amendment is warranted especially where defendant is not surprised or
prejudiced, or if he was already aware of the actual charge. People v.
McCoy, 295 Ill. App. 3d 988, 993 (1998). The trial court's decision to
allow an amendment to the charging instrument will not be disturbed unless the
court abused its discretion. McCoy, 295 Ill. App. 3d at 993. Although cited by neither party, People v.
Hester, 271 Ill. App. 3d 954 (1995), is similar to this case. There, the
trial court permitted the prosecutor to amend the information to add "or on his
land" to the allegation that defendant possessed a weapon "in his abode." The
appellate court held that the trial court did not abuse its discretion and noted
that the amendment did not affect a material element of the offense, but merely
provided two alternative means by which defendant could commit it. Therefore,
defendant was not prejudiced. Hester, 271 Ill. App. 3d at
956. Here, as in Hester, the amendment merely
added an additional way by which defendant could commit the same offense and
defendant was not prejudiced. It was clear all along that the State intended to
charge defendant with possession of the two guns found in the car. The amendment
merely tracked more closely the language of the statute. Count II, which the
State dismissed at the same time, always contained the allegation that defendant
possessed the guns "about his person." Defendant's nonspecific allegations of prejudice are
belied by the fact that he did not seek a continuance of the trial to prepare
his defense. See People v. Coleman, 49 Ill. 2d 565, 569-70 (1971)
(defendant not prejudiced by amendment to allege murder by asphyxiation in
addition to murder by stabbing, particularly where defendant did not seek
continuance to further prepare his defense). Thus, the trial court did not abuse
its discretion by permitting the amendment. Defendant next contends that the evidence was
insufficient to prove his guilt beyond a reasonable doubt. Where a defendant
challenges the sufficiency of the evidence, our review is limited to asking
whether all the evidence, when viewed in the light most favorable to the
prosecution, is sufficient to convince any rational trier of fact that the
elements of the offense have been proved beyond a reasonable doubt. People
v. Brown, 169 Ill. 2d 132, 152 (1996). It is not our function to retry the
defendant. People v. Digirolamo, 179 Ill. 2d 24, 43 (1997). It is the
jury's function to assess the credibility of the witnesses and the weight to be
given their testimony. People v. Manning, 182 Ill. 2d 193, 210
(1998). Here, the evidence was sufficient to prove that
defendant constructively possessed the pistol found in the backseat of the car.
It is undisputed that defendant and Embry occupied the backseat when the car was
stopped. Immediately after they exited the car, Wainman found a pistol
protruding from the crack in the backseat. Wainman testified that the gun would
have been within one foot of either of the backseat passengers. The jury could
thus conclude that defendant constructively possessed the gun, despite his
testimony that he was unaware of it. Although defendant was also charged with the
possession of the gun found under the front seat, the parties' briefs give scant
attention to this second gun. However, as defendant was charged with only one
offense, evidence that he constructively possessed the gun in the backseat was
sufficient to establish the elements of the offense beyond a reasonable
doubt. Defendant's final contention is that the court erred
in giving the Illinois Pattern Jury Instruction on constructive possession.
Defendant contends that the instruction does not accurately state the law
because it does not inform the jury that defendant must have knowledge of the
contraband. Defendant has waived this issue by failing to
specifically include it in his posttrial motion and by failing to tender an
alternative instruction at trial. People v. Rissley, 165 Ill. 2d 364,
406 (1995). However, even if defendant had properly preserved the issue, we
would find it to be without merit. In criminal cases, where Illinois Pattern Jury
Instructions contain an applicable instruction, the court should give it unless
the court determines that the instruction does not accurately state the law. In
determining the adequacy of the instructions, a reviewing court considers them
as a whole to ascertain if they fully and fairly cover the law. People v.
Novak, 163 Ill. 2d 93, 115-16 (1994). The instruction the court gave stated in relevant
part as follows: It seems evident that one cannot intend to exercise
control over a thing unless he or she knows about it. In any event, the next two
instructions the court gave told the jury that a person commits the offense of
unlawful use of weapons "when he knowingly possesses a pistol in a vehicle" and
that to convict defendant, the State had to prove that "defendant knowingly
possessed a pistol in a vehicle." The instructions as a whole informed the jury
that defendant could not be convicted of unlawful use of weapons unless he knew
of the guns' presence. The judgment of the circuit court of Stephenson
County is affirmed. Affirmed. INGLIS, J., concurs. JUSTICE GEIGER, dissenting: I respectfully dissent. I do not believe that the
evidence presented by the State was sufficient to prove the defendant guilty
beyond a reasonable doubt. For the offense of unlawful use of a weapon, the
State was obligated to prove that the defendant knowingly carried or possessed a
firearm "in any vehicle or concealed on or about his person." 720 ILCS
5/24--1(a)(4) (West 1994). In the instant case, there was no testimony by any of
the officers that the defendant was in actual physical possession of the
pistol. The majority asserts that the defendant's conviction
can be upheld under the doctrine of constructive possession. Under that
doctrine, the State may circumstantially prove the element of possession by
establishing that the defendant had immediate and exclusive control over the
area where the weapon was found. People v. Oden, 261 Ill. App. 3d 41,
47 (1994); People v. Williams, 98 Ill. App. 3d 844, 847-48 (1981). The
defendant's exclusive control over the area must be such that his knowledge of
the presence of the weapon may be inferred. People v. Givens, 46 Ill.
App. 3d 1035, 1041 (1977). In accordance with this rule, the jury in the instant
case was instructed that constructive possession requires proof that the
defendant intended to exercise control over the weapon. See Illinois Pattern
Jury Instructions, Criminal, No. 4.16 (3d ed. 1992). The evidence presented herein failed to establish
the defendant's exclusive control over the area where the weapon was found or
his intent to exercise control over the weapon. It was undisputed that the
defendant did not own the car and was but one of four passengers. It is
speculative to infer that the defendant intended to possess the weapon merely
because he "occupied" the backseat where the weapon was found. Indeed, the
weapon was found wedged into the crack of the backseat and was located halfway
between the backseat passengers. The defendant specifically denied knowing that
weapons were in the car and did not observe the pistol until the other backseat
passenger exited the car. Additionally, I believe that the majority's holding
that constructive possession may be inferred by the mere "occupation" of the
area in which the contraband is found is a broad extension of existing case law.
Although the majority correctly notes that multiple persons can jointly possess
a weapon for the purposes of constructive possession, Illinois courts have
previously applied the doctrine only in those instances when there is some
indicia that the charged defendant has the right to exert his control over the
area where the contraband was found. See People v. Hester, 271 Ill.
App. 3d 954, 961 (1995) (weapons found in house owned by defendant);
Williams, 98 Ill. App. 3d at 848-49 (shotgun found in apartment where
defendant had been living for two weeks); Givens, 46 Ill. App. 3d at
1041 (shotgun found under passenger seat of defendant's vehicle). In each of
these cases, the defendant's right to exert control over the auto or dwelling
where the contraband was found was essential to establishing constructive
possession. Hester, 271 Ill. App. 3d at 961; Williams, 98 Ill.
App. 3d at 848-49; Givens, 46 Ill. App. 3d at 1041. Here, the defendant could not have immediate and
exclusive control over an automobile in which he was riding as a passenger.
Certainly the defendant's mere presence in the backseat cannot support a legal
inference that he was aware of the presence of the pistol and intended to
exercise his control over it. See generally People v. Pugh, 36 Ill. 2d
435, 436-37 (1967) (mere presence in apartment at time contraband seized
insufficient to establish constructive possession). Lacking any other evidence
of the defendant's intent, I do not believe that a rational trier of fact could
have found the defendant guilty beyond a reasonable doubt. I would therefore
reverse his conviction.
THE PEOPLE OF THE STATE
Appeal from the Circuit
Court
"Possession may be actual or constructive. *** A person has
constructive possession when he lacks actual possession of a thing but he has
both the power and the intention to exercise control over a thing either
directly or through another person." See Illinois Pattern Jury Instructions,
Criminal, No. 4.16 (3d ed. 1992).