People v. Alvarez

2021 IL App (1st) 190955-U

Opinion

2021 IL App (1st) 190955-U No. 1-19-0955 Order filed October 25, 2021 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 18 CR 9257 ) JONATHAN ALVAREZ, ) Honorable ) Thomas Joseph Hennelly, Defendant-Appellant. ) Judge, presiding.

JUSTICE WALKER delivered the judgment of the court. Presiding Justice Hyman and Justice Pucinski concurred in the judgment.

ORDER

¶1 Held: The State proved defendant’s guilt of aggravated unlawful use of a weapon beyond a reasonable doubt where a rational trier of fact could accept the testimony of the State’s witness.

¶2 Following a bench trial, defendant Jonathan Alvarez was found guilty of aggravated

unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West

2018)) and sentenced to one year’s imprisonment. Alvarez argues on appeal that the State failed

to prove beyond a reasonable doubt that he possessed a firearm because the State’s lone witness No. 1-19-0955

was incredible and impeached, and the State did not present physical or forensic evidence

connecting him to the firearm. We affirm.

¶3 I. BACKGROUND

¶4 Alvarez was charged by indictment with six counts of AUUW. Count I charged Alvarez

with knowingly carrying on his person an uncased, loaded, immediately accessible firearm without

a valid concealed carry license (CCL) or Firearm Owners Identification (FOID) card. 720 ILCS

5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West 2018). The State nol-prossed counts II-VI.

¶5 At trial, Chicago police officer Johnathon Martinez testified that, at approximately 11:58

p.m. on June 5, 2018, he drove a marked vehicle with a partner, Officer Vincent Hernandez. On

the 2600 block of West 23rd Place, in Chicago, Martinez observed two individuals walking on the

sidewalk to his right: Alvarez, whom Martinez identified in court, and a shorter individual. It was

dark, but there were streetlights. Alvarez was near the street.

¶6 Another individual, wearing a yellow shirt, stood on the opposite side of the street. The

individual in yellow whistled twice and yelled “A O,” which Martinez recognized as a warning

about the police. Alvarez looked at Martinez, crouched towards a parked vehicle, threw a silver,

shiny object under the vehicle, then stood and continued walking.

¶7 Martinez and Hernandez detained all three individuals. Martinez then canvassed the area

where Alvarez threw the item and recovered a loaded, silver .357 magnum revolver under a parked

vehicle, near the left rear wheel. Martinez did not observe any other shiny objects. From the time

Alvarez was detained, no one else was present except for a woman walking her dogs, but she

arrived after the incident and Martinez did not see her throw anything.

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¶8 Martinez and Hernandez wore body cameras, and Martinez stated that he reviewed the

footage before trial, and it was an accurate depiction. The State then sought to “publish” People

Exhibit No. 1, which the state described as “the body camera footage.” Defense counsel stated that

she had no objection to the exhibit and stipulated to its foundation. The exhibit, which is included

in the record on appeal, is a CD containing multiple video files from the body cameras of

Hernandez, Martinez, and other officers. The State played approximately 20 seconds of one video,

“from minute 705 to 726.” According to Martinez, the video was from Hernandez’s body camera

and showed Martinez at the scene. In the published portion, Martinez donned gloves near a black

SUV and tells other officers that he “knew it.” The SUV is parked with its driver’s side near the

curb, and a silver firearm is visible near the driver’s side rear wheel.

¶9 On cross-examination, Martinez testified that the body camera footage accurately depicted

the lighting conditions. Martinez drove the wrong way down 23rd, and vehicles were parked on

both sides of the street. Martinez activated his body camera while in the vehicle, but neither his

nor Hernandez’s body camera footage captured the individual in yellow issuing the warning or

Alvarez throwing anything. Martinez agreed that he approached the individual in the yellow shirt

because he said “mother f***” the officers. Martinez and Hernandez took the individual to the

ground and handcuffed him, which took a short amount of time. During that time, other officers

arrived, and Alvarez and the shorter individual stood near the police vehicle. Martinez then

returned to his vehicle and spoke with Alvarez and the shorter individual.

¶ 10 About six minutes after the officers activated their body cameras, Martinez, Hernandez,

and the other officers searched for the firearm. The officers looked around parked vehicles and in

the surrounding yards. Martinez found the firearm under a black SUV. Martinez did not recall how

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much time passed before he recovered the firearm or how many vehicles were parked between the

police vehicle and the SUV.

¶ 11 Martinez agreed that a sergeant who responded to the scene asked him whether Alvarez

was the only person near the vehicle, and Martinez clarified in his testimony that “the juvenile”

was also present. Martinez told the sergeant that he saw Alvarez make a throwing gesture, which

he demonstrated for the sergeant, but Martinez did not mention a shiny, silver object to the sergeant

or anyone else. The State entered a stipulation that, on June 5, 2018, Alvarez had not been issued

a valid CCL or FOID card.

¶ 12 The court immediately announced its findings following closing arguments. The court

stated that it judged Martinez’s credibility and did not find it significant that he was slightly

impeached “regarding what he said.” The court believed that Alvarez possessed a firearm and

threw it under a vehicle when he was alerted to the officers’ presence and found Alvarez guilty.

¶ 13 Alvarez filed a motion to reconsider or for a new trial, arguing in relevant part that the State

failed to prove him guilty beyond a reasonable doubt. At a hearing thereon, defense counsel

requested the trial court “view People's Exhibit 1 which was admitted at trial,” namely, footage

from “the body-worn camera of Officer Vincent Hernandez.” Counsel noted that “[t]he State

published some portions of that, but I would ask that the Court review the first nine minutes.” The

trial court agreed to watch it and continued the proceedings.

¶ 14 The portion of Hernandez’s body camera footage identified by defense counsel depicts

Hernandez and Martinez arriving at the scene and detaining Alvarez, the shorter individual, and

the person in yellow. Hernandez and the other officers appear to start searching for the firearm

approximately six minutes into the footage, canvassing the sidewalk, yards, and parked vehicles

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with flashlights. About one minute later, Hernandez and other officers approach Martinez, who is

standing beside the firearm and tells them that he “knew it,” and demonstrates a throwing motion

he saw one of the individuals make after the person in yellow issued the warning. After recovering

the firearm, Martinez tells the sergeant that Alvarez and the shorter individual were near the

firearm and that he saw the taller one make, a throwing gesture, which he demonstrates again.

¶ 15 On the next court date, defense counsel argued that the video bolstered the defense’s

arguments at trial that Martinez did not see Alvarez throw a shiny, silver object because the video

showed the scene was dark, the firearm was under a large SUV situated four or five vehicle lengths

from where the officers stopped their own vehicle, the SUV was between the officers and Alvarez,

the assisting officers were not directed to the SUV, and Martinez did not mention a shiny silver

object to anyone on the scene. The court review the video in its entirety, found Martinez credible

and denied the motion.

¶ 16 Following a hearing, the court sentenced Alvarez to one year’s imprisonment. Alvarez’s

motion to reconsider sentence was denied.

¶ 17 II. ANALYSIS

¶ 18 On appeal, Alvarez argues the State failed to prove beyond a reasonable doubt that he

possessed a firearm. Alvarez also argues the State’s evidence was insufficient because no physical

evidence linked him to the firearm, and Martinez’s testimony was incredible and impeached on

cross-examination and by the footage contained in People’s Exhibit No. 1.

¶ 19 When reviewing the sufficiency of the evidence, a reviewing court determines whether,

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. People v. Gray, 2017 IL

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120958, ¶ 35. The trier of fact is charged with resolving conflicts in the testimony, weighing the

evidence, and drawing reasonable inferences from the facts. Id. A trier of fact’s credibility

determinations are entitled to great deference, and a reviewing court will not substitute its

judgment for that of the trier of fact on questions involving the credibility of witnesses or the

weight of the evidence. Id. A conviction will not be reversed unless the evidence is so

unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.

Id.

¶ 20 The testimony of a single witness, if positive and credible, may sustain a conviction. Id at

¶ 36. Eyewitness testimony is insufficient only where the record evidence compels the conclusion

that no reasonable person could accept the testimony beyond a reasonable doubt. Id. The same

standard of review applies whether the evidence is direct or circumstantial, and circumstantial

evidence may be sufficient to sustain a criminal conviction. People v. Jackson, 2020 IL 124112,

¶ 64.

¶ 21 To convict Alvarez of AUUW, the State was required to prove that he possessed an

uncased, loaded, immediately accessible firearm on his person without a valid CCL or FOID card.

720 ILCS 5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West 2018). Alvarez does not contest that

he had not been issued a valid CCL or FOID card, only that the State did not prove that he

possessed a firearm.

¶ 22 “Possession may be actual or constructive.” People v. Balark, 2019 IL App (1st) 171626,

¶ 94. Actual possession is the exercise of present personal dominion over illicit material and exists

when a person exercises immediate and exclusive dominion or control over the material. Id. It does

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not require present personal touching of the contraband. Id. Actual possession of a weapon may

be shown by testimony that the defendant tried to conceal it or throw it away. Id.

¶ 23 At trial, Martinez testified that, as the officers drove down 23rd, the person in yellow

alerted Alvarez, who crouched and threw a silver, shiny object beneath a vehicle. Subsequently,

the officers detained Alvarez, the shorter individual he was with, and the person in yellow. Officers

canvassed the area, and Martinez recovered a loaded, silver firearm underneath a vehicle. He did

not observe other shiny objects or observe anyone else throw anything. Once Alvarez was

detained, no one else was near the firearm besides a woman walking her dogs, who did not arrive

until after the incident occurred. From that evidence, a rational trier of fact could find that Alvarez

had actual possession of the firearm. See Jackson, 2020 IL 124112, ¶ 70 (trier of fact need not be

satisfied beyond reasonable doubt as to each fact in chain of circumstances so long as all evidence,

taken together, satisfies trier of fact of defendant’s guilt beyond reasonable doubt); see also Balark,

2019 IL App (1st) 171626, ¶ 94 (actual possession may be proven by testimony defendant tried to

conceal or throw away weapon).

¶ 24 Alvarez argues that Martinez’s testimony that he saw Alvarez throw a shiny, silver object

under a vehicle was incredible because he did not tell anyone at the scene about the object,

including the sergeant to whom he demonstrated the throwing motion, and detained the individual

in yellow upon exiting his vehicle rather than immediately recover the object or direct another

officer to do so.

¶ 25 Viewing the evidence in the light most favorable to the State, we find a rational trier of fact

could accept Martinez’s testimony. While Martinez did not describe a shiny, silver object to

anyone on the scene, and stated that the search for the firearm began about six minutes after he

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started his body camera, he also testified that he told the sergeant that he saw Alvarez throw

something, and Hernandez’s body camera footage depicts Martinez standing next to the firearm

and telling other officers that he “knew it.” The video also shows Martinez demonstrating the

throwing motion to the officers and again to the sergeant. It also shows Martinez clarifying to the

sergeant that Alvarez and the shorter individual were near the firearm, and it was the taller one

who made the throwing gesture.

¶ 26 Alvarez further argues that Martinez’s own body camera footage undermines his testimony

because it shows the scene was dark; he did not tell anyone about the shiny, silver object; he did

not immediately search the area he testified Alvarez threw the weapon or instruct another officer

to do so; and he asked questions of the detained individuals without inquiring about Alvarez

crouching or throwing a shiny object.

¶ 27 Although the footage from Martinez’s body camera is contained on the disk admitted as

People’s Exhibit No. 1, that footage was not shown at trial and neither party asked the court to

view it during the trial. The court announced its verdict immediately following closing arguments,

and the transcript does not reflect a recess where the court might have viewed Martinez’s body

camera footage. Defense counsel did not request the court view Martinez’s footage in connection

with Alvarez’s posttrial motion. Therefore, while both parties rely on Martinez’s video footage on

appeal, the record does not show that the court viewed that footage at any time.

¶ 28 The court heard Martinez testify to many of the same circumstances that Alvarez posits are

shown by Martinez’s body camera footage—namely, that he did not mention a shiny, silver object

on the scene. The officers began searching for the firearm approximately six minutes after

Martinez and Hernandez activated their body cameras, and they investigated yards and around

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parked cars before the firearm was discovered. Ultimately, the court found Martinez credible, and

given that Martinez told the sergeant that he saw Alvarez throw something and Hernandez’s body

camera footage depicts him demonstrating the throwing motion and telling other officers that he

“knew it” while he stands near the firearm, the record evidence is not so insufficient that no rational

trier of fact could accept Martinez’s testimony beyond a reasonable doubt. See Gray, 2017 IL

120958, ¶¶ 35-36 (reviewing court will not substitute its judgment for that of the trier of fact on

questions involving witness’s credibility, and eyewitness testimony is insufficient only where no

reasonable person could accept it beyond reasonable doubt).

¶ 29 III. CONCLUSION

¶ 30 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

¶ 31 Affirmed.

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