2022 IL App (5th) 190404-U NOTICE NOTICE Decision filed 04/26/22. The This order was filed under text of this decision may be NO. 5-19-0404 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Peti ion for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 18-CF-1959 ) CHARLES ANDERSON, ) Honorable ) Robert B. Haida, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court. Presiding Justice Boie and Justice Moore concurred in the judgment.
ORDER
¶1 Held: The State presented sufficient evidence to support defendant’s aggravated unlawful use of a weapon conviction, and counsel was not ineffective for failing to assert the defense of necessity because such decision was a matter of trial strategy. ¶2 Defendant was convicted of aggravated unlawful use of a weapon after police discovered
a gun in his vehicle. On appeal, he argues that the State failed to prove his possession was
voluntary, and counsel was ineffective for failing to assert the defense of necessity. For the
following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged, by information, with aggravated unlawful use of a weapon
(AUUW) for knowingly possessing a handgun at a time when he was not on his own land or place
of business without currently possessing a valid license under the Firearm Concealed Carry Act, 1 in violation of 24-1.6(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/24-1.6(a)(1) (West
2018)) (count I), felon in possession of a weapon for being previously convicted of a felony and
possessing a handgun, in violation of section 24-1.1(a) of the Code (id. § 24-1.1(a)) (count II), and
unlawful possession of a weapon by a felon for possessing a handgun after having been convicted
of a felony, in violation of section 24-1.1(a) of the Code (id.) (count III). The court subsequently
granted the State’s motion to dismiss charge III.
¶5 The trial occurred over two days, July 9 and 10, 2019. Prior to trial, the parties stipulated
that defendant had previously been convicted of a felony, and the stipulation was submitted to the
jury.
¶6 Detective Tia Mitchell and Officer Isaiah Sherrod testified for the State. Their testimonies
revealed that on December 28, 2018, Detective Mitchell observed a tan Buick cut over two lanes
of traffic while the traffic light was red almost causing an accident. The officers followed the car
and observed it disobey a stop sign. Accordingly, the officers pulled the car over. As soon as the
car stopped, defendant immediately threw something that looked like keys out of the window and
exited the car, causing a safety concern. The officers exited their vehicle and pulled their weapons.
Officer Sherrod detained defendant due to his erratic behavior.
¶7 After dispatch informed the officers that defendant’s license was revoked, Officer Sherrod
arrested defendant and placed him in the patrol vehicle. Officer Sherrod then asked defendant if
he was armed. Defendant stated that he did not have weapons on his person but there was a firearm
in the car beneath the seat. Officer Sherrod found a loaded black and purple 9-millimeter semi-
automatic Luger beneath the driver’s seat. On cross-examination, Officer Sherrod testified that the
car was returned to defendant’s “wife or his girlfriend.”
2 ¶8 Aaron Horn, a forensic scientist for the Illinois State Police, testified that the gun recovered
from defendant’s car was in proper working condition. Randall Wilson, an executive for the
Firearm Owner’s Identification (FOID) Application Section of the Illinois State Police Firearms
Services Bureau, testified that after a diligent search in various ways, he found no record of
defendant ever having applied or received a FOID card.
¶9 At the close of the State’s evidence, the defense motioned for a directed verdict, arguing
the State failed to make a prima facie case against defendant. The court denied the motion.
¶ 10 The defense first called defendant’s son, Sanchez Fields, to testify. Fields stated that he
was moving on the day his dad was arrested. His dad came to his house in defendant’s girlfriend’s
car and helped Fields move all day. “About 20 to 30, maybe 45 minutes, almost an hour” after
defendant left, he called Fields. At no point that day did Fields see defendant with a firearm.
¶ 11 Elouise Rayford, defendant’s live-in girlfriend of 20 years, testified next. She said that she
owned the Buick that defendant drove on December 28, 2018, and defendant was helping his son
move all that day. Rayford identified the gun found in the car as her brother-in-law’s. She testified
that she found the gun around December 18, 2018, when she cleaned out her brother-in-law’s
house after he passed. She took the gun in the house once but put it back in the car when her
grandchildren came over for Christmas. She intended to give the gun away or to defendant’s sister,
but she forgot due to the holidays. Rayford stated that she never told defendant about the gun
because he is a felon and is not supposed to be around guns. On cross-examination, Rayford
averred that defendant had a set of keys to her car and used it when needed.
¶ 12 Defendant also testified. He stated that he helped his son move all day before he was
arrested. As he was driving home, his phone rang, and he believed it was stuck between the seats
of the car. Defendant could not reach the phone, so he pulled into a parking lot to find it. While
3 searching for his phone, he felt a towel under the driver’s seat. When he pulled the towel out, he
found a gun was wrapped in it. Defendant then called his son and asked whether he or one of his
friends got into defendant’s car. His son answered in the negative.
¶ 13 Defendant thought about tossing the gun onto the street but did not think it was right. He
later indicated that he did not want any kids to find the gun. He decided to take the gun to his niece
who lived closer to the parking lot than his home. Defendant pulled out of the parking lot slowly
to allow the cars waiting at the traffic light to move forward so that he could drive across two lanes
of traffic to the turning lane. By the time he got to the turning lane, the light was turning yellow,
so he stepped on the gas. Defendant admitted that due to the location of the parking lot, traffic, and
the changing traffic light, he made a left turn from the right lane. However, he stated that the cars
in the opposite direction waited for him to turn and claimed the officers lied when they said that
he almost caused an accident. Defendant then approached a stop sign and did not come to a
complete stop but came to a “rolling stop.” At this time, defendant noticed the cop lights and pulled
over. He was still on the phone with his son and told his son to call Rayford because defendant
knew he was going to jail due to his suspended license. Defendant observed Officer Mitchell with
her gun out and relayed this to his son. Fields told defendant to drop the phone, roll down the
window, and toss his keys out. Defendant followed his son’s instructions.
¶ 14 The officers approached from both sides of the car. Defendant testified that Officer Sherrod
instructed defendant to open the door, get out of the car, pick up his keys, and put the keys on the
car. Defendant complied. Defendant also complied with the officer’s instructions to put his hand
behind his neck and lean against the back of the car. Once the officer came behind defendant and
grabbed his hands, Officer Sherrod holstered his gun, then completed a pat down and handcuffed
defendant.
4 ¶ 15 Defendant stated at that time, Officer Mitchell ran a check on defendant’s ID and
discovered defendant had a revoked driver’s license. Officer Mitchell informed defendant that a
towing company would come tow the car, which made him panic because it was his girlfriend’s
car and she needed it to get to work. So, defendant asked Officer Sherrod if his son—who was still
on the phone—could come get the car to avoid having to pay any towing fees. Officer Sherrod
said the car would be towed and asked if defendant had any drugs or “anything in [there] that
shouldn’t be.” Defendant told the officers that a gun was under the passenger seat. Defendant
averred that from the time he found the gun to the point that officers found the gun was three to
five minutes.
¶ 16 On cross-examination, when asked why defendant told the officers that his son was shot,
defendant stated, “I don’t—I don’t—I don’t remember. I don’t remember why I said half the things
I said.” The State also asked if defendant passed multiple parking lots and gas stations. Defendant
answered affirmatively and stated that he knew he should get rid of the gun but continued to drive
with the gun under his seat until he was pulled over. Defendant conceded that he could have asked
his son or niece to come get the gun.
¶ 17 Defense counsel renewed his motion for directed verdict, arguing that the State failed to
prove knowledge of the weapon with sufficient time for defendant to dispose of the weapon. The
court again denied the motion.
¶ 18 During closing arguments, the State and defense counsel focused on the issue of whether
defendant knew the gun was in the car more than a few minutes before he pulled into the parking
lot. The State contended there were only a few ways defendant could know the gun was under his
seat, and it did not make sense that defendant found the gun mere minutes before being pulled
5 over. It alternatively argued that if the jury believed defendant’s testimony, defendant had time to
dispose of the gun by calling his son to come get it or stopping at a gas station.
¶ 19 Defense counsel argued that there was no testimony that defendant procured or retrieved
the gun; rather, the testimony indicated that defendant was unaware of the gun until a few minutes
before being pulled over. He claimed that a driver does not necessarily know of everything within
the car. Counsel further contended that there was no testimony that defendant had time to carefully
dispose of the gun such that no one would get hurt.
¶ 20 The court instructed the jury that:
“Possession is a voluntary act if the person knowingly procured or received
the thing possessed, or was aware of his control of the thing for a sufficient time to
have been able to terminate his possession.
***
To sustain the charge of aggravated unlawful use of a weapon, the State must
prove *** defendant knowingly carried a firearm; *** when the defendant did so,
he was not on his own land, or in his abode, or in his fixed place of business; and
*** defendant had not been issued a currently valid Firearm Owner’s Identification
Card or a currently valid license under the Firearm Concealed Carry Act.
To sustain the charge of unlawful possession of a weapon by a felon, the State
must prove *** defendant knowingly possessed a weapon; and *** defendant had
previously been convicted of a felony.”
At 11:20 a.m., the jury retired to deliberate.
6 ¶ 21 At 1:15 p.m., the jury sent a question to the judge asking, “What is the legal definition of
knowingly as it relates to the first proposition of the charge of aggravated unlawful use of the
weapon?” Over no objection, the court answered with Illinois Pattern Jury Instructions, Criminal,
No. 5.01B (approved Oct. 28, 2016), “A person acts knowingly with regard to the nature or
attendant circumstances of his conduct when he is consciously aware that his conduct is of that
nature or that those circumstances exist. Knowledge of a material fact includes awareness of the
substantial probability that the fact exists.” At 2:38 p.m., the jury sent a question to the judge
asking, “Please define ‘sufficient time’ in regard to the definition of possession.” With the
agreement of the parties, the court answered, “Defining whether or not sufficient time exists is a
question for you to decide.” The jury found defendant guilty of AUUW and not guilty of unlawful
possession of a weapon by a felon.
¶ 22 Counsel filed a posttrial motion arguing that the State failed to prove every element of
unlawful possession of a weapon without a FOID card, the verdict was based on facts that did not
exclude every reasonable hypothesis consistent with innocence, and the verdicts were factually
inconsistent. The court stated that it would not speculate as to why the jury did what they did. The
jury could have disregarded the stipulation that defendant was a felon or compromised and found
what they believed to be the lesser charge. The court stated that it was reluctant to try to figure it
out and denied the motion. Defendant was sentenced to three years’ imprisonment.
¶ 23 II. ANALYSIS
¶ 24 On appeal, defendant argues there was insufficient evidence to support his conviction, and
counsel was ineffective for failing to raise a necessity defense. We address each issue in turn.
7 ¶ 25 A. Sufficiency of the Evidence
¶ 26 Due process requires the State to prove each element of an offense beyond a reasonable
doubt. U.S. Const., amends. V, XIV; Ill. Const. 1970, art. I, § 2; In re Winship, 397 U.S. 358, 364
(1970). When reviewing the sufficiency of the evidence in a criminal case, it is not the reviewing
court’s function to retry the defendant, nor should it substitute its own judgment for that of the trier
of fact regarding witness credibility or the weight of the evidence. People v. Muffick, 2019 IL App
(5th) 160388, ¶ 8. Instead, the reviewing court determines “ ‘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.’ ” (Emphasis omitted.) People v.
McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Under
this standard, circumstantial evidence can be sufficient to sustain a conviction. People v. Jackson,
2020 IL 124112, ¶ 64. “A criminal conviction will not be set aside on a challenge to the sufficiency
of the evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable
doubt of the defendant’s guilt.” Id. We draw all reasonable inferences in the State’s favor. People
v. Vanhoose, 2020 IL App (5th) 170247, ¶ 25.
¶ 27 The AUUW statute states:
“(a) A person commits the offense of aggravated unlawful use of a weapon
when he or she knowingly:
(1) Carries on or about his or her person or in any vehicle or concealed
on or about his or her person except when 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,
any pistol, revolver, stun gun or taser or other firearm; [and]
8 ***
(3) ***
(C) the person possessing the firearm has not been issued a
currently valid Firearm Owner’s Identification Card[.]” 720 ILCS
5/24-1.6(a)(1), (a)(3)(C) (West 2018).
To support a finding of possession, the State must prove beyond a reasonable doubt that the
defendant had knowledge of the presence of the contraband and control over the contraband or
immediate and exclusive control of the area where the contraband was found. People v. Hunter,
2013 IL 114100, ¶ 19; People v. Day, 51 Ill. App. 3d 916, 917 (1977).
¶ 28 Defendant does not dispute that he possessed the gun but argues that he did not voluntarily
possess the firearm such that he was criminally liable. He explains that he found the gun three to
five minutes before he was pulled over for a traffic stop. After finding the firearm, he chose the
quickest and safest method to terminate his control over the firearm by taking the weapon to his
niece’s home so that she could take it to a “no questions asked” program to safely dispose of the
firearm.
¶ 29 “A material element of every offense is a voluntary act ***.” 720 ILCS 5/4-1 (West 2018).
As the trial court instructed, “Possession is a voluntary act if the offender knowingly procured or
received the thing possessed, or was aware of his control thereof for a sufficient time to have been
able to terminate his possession.” Id. § 4-2. Accordingly, the State can prove voluntariness by
proving that defendant knowingly procured or received the firearm or was aware of his control for
a sufficient time to terminate his possession.
9 ¶ 30 Defendant’s argument mistakenly assumes that the evidence only supported a finding that
he found the gun a few minutes before being pulled over. The evidence showed that defendant
informed officers of the gun’s location, and defendant was driving the car in which the gun was
located. The State also presented evidence that defendant shared the car with his girlfriend, having
his own set of keys to the car. This knowledge and control of the premises in which the gun was
located gives rise to an inference of possession sufficient to sustain a conviction absent other facts
which might create a reasonable doubt as to the defendant’s guilt. See People v. Smith, 191 Ill. 2d
408, 413 (2000) (“This court has held, however, that the mere presence of illegal drugs on premises
which are under the control of the defendant gives rise to an inference of knowledge and possession
sufficient to sustain a conviction absent other factors which might create a reasonable doubt as to
the defendant’s guilt.”); People v. Huth, 45 Ill. App. 3d 910, 915 (1977) (“[T]he discovery of a
particular type of contraband on premises under the control of an accused, in and of itself, gives
rise to an inference of knowledge and possession by him which may be sufficient to sustain a
conviction for unlawful possession of such contraband, absent other facts which might leave in the
mind of the trier of fact a reasonable doubt as to an accused’s guilt.”).
¶ 31 While Rayford’s testimony indicated that defendant was unaware of the gun until
immediately before being pulled over, “[t]he State need not disprove or rule out all possible factual
scenarios.” People v. Newton, 2018 IL 122958, ¶ 27. Nor must the trier of fact raise all possible
explanations consistent with innocence to a level of reasonable doubt. People v. Jackson, 232 Ill.
2d 246, 281 (2009). The jury may believe as much, or as little, of any witness’s testimony as it
sees fit. People v. Tatum, 2019 IL App (1st) 162403, ¶ 51. It was reasonable for the jury to doubt
the truthfulness of Rayford’s testimony where her relationship with defendant is clearly a basis for
bias. People v. Jones, 60 Ill. 2d 300, 306 (1975). Likewise, the jury could reasonably find
10 defendant’s testimony not credible where defendant did not dispute that, when he was pulled over,
he told officers that he was trying to find his son who was recently shot, but at trial, claimed he
was on the phone with his son while he drove to his niece’s house to dispose of the gun. Therefore,
it was in the purview of the jury to find the testimony in favor of defendant not credible and believe
the State’s evidence that defendant knew of the gun before he allegedly pulled over to find his
phone. See Muffick, 2019 IL App (5th) 160388, ¶ 8 (the jury is to determine the credibility of the
witnesses and the weight of the evidence).
¶ 32 We also reject defendant’s argument that we can conclude the jury was not sure whether
defendant had sufficient time to dispose of the weapon based on its question of “Please define
‘sufficient time’ in regard to the definition of possession.” We will not speculate the “jury’s
collective intent from a single question that may well have only embodied the curiosity or concern
of a single juror.” People v. Spears, 112 Ill. 2d 396, 409 (1986); People v. Mullins, 242 Ill. 2d 1,
28 (2011). Rather, the jury’s clear intent occurs when it renders its verdict. Spears, 112 Ill. 2d at
409. Accordingly, we find—viewing the evidence in light most favorable to the State—the
evidence was sufficient to prove voluntary possession.
¶ 33 B. Ineffective Assistance of Counsel
¶ 34 Defendant also argues that counsel was ineffective for failing to raise a necessity defense.
A criminal defendant has a constitutional right to effective assistance of counsel. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of counsel are
evaluated under the two-prong test set forth in Strickland v. Washington, 466 U.S. 668 (1984).
People v. Albanese, 104 Ill. 2d 504, 526-27 (1984) (Illinois Supreme Court adopting the Strickland
standard). To prevail, a defendant must demonstrate counsel provided deficient performance that
resulted in prejudice. People v. Bailey, 2020 IL App (5th) 160458, ¶ 86. The failure to establish
11 either deficient performance or prejudice precludes a finding of ineffective assistance of counsel.
People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 34.
¶ 35 To establish deficient performance, defendant must show that counsel’s performance was
objectively unreasonable under prevailing professional norms. People v. Smith, 195 Ill. 2d 179,
188 (2000). This requires overcoming the strong presumption that counsel’s decisions were a
matter of trial strategy, which are generally immune from ineffective assistance claims. Id. The
decision to present a theory of defense is usually a matter of trial strategy. See Jackson, 2020 IL
124112, ¶ 106.
¶ 36 Necessity is an affirmative defense that requires the accused was “without blame in
occasioning or developing the situation and reasonably believed such conduct was necessary to
avoid a public or private injury greater than the injury which might reasonably result from his own
conduct.” 720 ILCS 5/7-13 (West 2018); People v. Ferree, 221 Ill. App. 3d 212, 216 (1991). This
defense involves a choice between two admitted evils where other options are unavailable. People
v. Haynes, 223 Ill. App. 3d 126, 128 (1991). “When another alternative exists besides the two evil
choices which, if carried out, would cause less harm, then the accused is not justified in breaking
the law.” Id.
¶ 37 In support of his position, defendant contends his case is like People v. Gullens, 2017 IL
App (3d) 160668. In Gullens, a court determined that defendant violated his conditional discharge
by being a felon in possession of a weapon. Id. ¶ 15. Evidence at the hearing revealed that
defendant’s younger brother stole the gun from a store and defendant had no knowledge of the
stolen gun until after they left the store. Id. ¶¶ 5-6, 11-12. When defendant became aware of the
gun, he was upset and immediately returned it to the store. Id. ¶¶ 11-12. It was about 10 minutes
from the time the gun was stolen until defendant returned it. Id. ¶¶ 11, 12. Defendant testified that
12 he returned the gun because he did not want to get into trouble. Id. ¶ 13. He further averred that he
returned the gun himself because he did not believe his brother would return it and everyone he
knew with a valid FOID card was at work. Id. He testified the only goal in possessing the gun was
to return it to the store so that the gun would not be sold in Chicago and used for crime. Id.
¶ 38 The appellate court reversed the court’s discharge of defendant’s probation, finding the
elements of the necessity defense were met. Id. ¶¶ 23-25, 33. It explained that defendant was not
to blame for developing the situation that resulted in the theft of the gun because he did not know
the gun was stolen until after he left the store. Id. ¶ 23. The court determined that a specific and
immediate threat to public safety occurs when a stolen firearm is out on the street. Id. ¶¶ 23, 25. It
also found that there were no other courses of action available to defendant, noting that defendant
testified he did not know anyone available with a valid FOID card, it was reasonable to believe the
person who stole the gun would not return it, and it was uncertain that the police would have
recovered the gun without defendant taking possession of it. Id. ¶ 24.
¶ 39 Defendant argues like the defendant in Gullens, he was not to blame for why the firearm
was in the vehicle, and while he may have momentarily had possession of the firearm, he was
trying to find a safe place to dispose of it. Defendant chose not to toss the gun out in a public area,
as suggested by the State, because he feared that a child might find it and potentially injure
themselves or someone else. Further, someone else finding a firearm in the street or parking lot
would not be a legal transfer of the firearm. Defendant contends he had no other course of action
available to him given his circumstances. Therefore, counsel should have raised the affirmative
defense as it was likely to excuse defendant’s conduct. We disagree.
13 ¶ 40 We first note that defendant’s argument assumes that the jury was required to believe his
and Rayford’s testimony that defendant did not know of the gun until he pulled into the parking
lot. As we explained above, sufficient evidence was presented to conclude to the contrary.
¶ 41 Nevertheless, defendant had more options than throwing the gun out into the public or
driving with the gun. He admitted during his testimony that he could have asked his son—who,
according to defendant’s testimony, was on the phone with him during these events—or his niece
to come get the gun. Defendant could have waited elsewhere in the parking lot until the gun was
retrieved. As such, this case is distinguishable from Gullens where that defendant did not have
anyone else available to possess the gun.
¶ 42 Moreover, a defense of necessity contradicts the defense’s theory at trial. To claim the
defense of necessity, defendant would have had to admit the elements of the offense. People v.
Trice, 2017 IL App (4th) 150429, ¶ 31 (“the nature of an affirmative defense assumes the
underlying allegations are true”). Counsel argued at trial, as defendant does on appeal, that
defendant’s conduct did not constitute voluntary possession, a necessary element to convict for
AUUW. Consequently, counsel was justified in not presenting the contradictory defense of
necessity. See People v. Aquisto, 2022 IL App (4th) 200081, ¶ 86; see also People v. Todd, 178
Ill. 2d 297, 331-32 (1997).
¶ 43 Because driving with the gun was not defendant’s only option and the defense of necessity
would contradict the defense’s theory at trial, trial counsel’s decision not to present the defense of
necessity was a matter of trial strategy. Defendant therefore fails to establish counsel provided
ineffective assistance.
14 ¶ 44 III. CONCLUSION
¶ 45 The State presented sufficient evidence to convict defendant of AUUW, and trial counsel
was not ineffective for failing to raise a necessity defense. Accordingly, we affirm defendant’s
conviction.
¶ 46 Affirmed.