People v. Bratcher

2022 IL App (1st) 191898-U

• Court: Appellate Court of Illinois
• Decided: May 12, 2022
• Docket: 1-19-1898
• Status: Unpublished

Opinion

2022 IL App (1st) 191898-U No. 1-19-1898 Order filed May 12, 2022 Fourth 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 2045 ) NEAL BRATCHER, ) Honorable ) Joan O’Brien, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Justices Lamkin and Marin concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction of aggravated unlawful use of a weapon is affirmed where a rational trier of fact could find that he constructively possessed the firearm hidden in a door panel of the vehicle that he owned and was driving.

¶2 Following a bench trial, defendant Neal Bratcher was found guilty of two counts of

aggravated unlawful use of a weapon (AUUW). The court merged the counts and sentenced

defendant to one year in prison. On appeal, defendant argues that the State failed to show that he

knowingly possessed the weapon that was discovered in his vehicle. We affirm. No. 1-19-1898

¶3 Defendant was charged by indictment with multiple offenses arising from an incident on

January 9, 2018. Relevant here, the State proceeded on two counts of AUUW, which alleged that

defendant carried a firearm on or about his person (count II) or in a vehicle (count III) while he

was not at his land, home, or business and was not an invitee elsewhere, and lacked a valid Firearm

Owners Identification (FOID) card. See 720 ILCS 5/24-1.6 (a)(1), (a)(3)(C) (West 2018). The

State also proceeded on one count of possession of cannabis with intent to deliver (count VI). 1

¶4 Chicago police officer Gainer2 testified that on January 9, 2018, about 8 p.m., he and his

partner, Officer Sam Brienzo, were patrolling around the 9300 block of South University Avenue

in Chicago. Gainer observed defendant pulling into a parking space without signaling, exit his

vehicle, and immediately reenter his vehicle after seeing the officers. Gainer pulled in front of

defendant and another police vehicle pulled behind defendant. Gainer and Brienzo approached and

requested defendant to exit the vehicle. Defendant lowered his window a few inches and refused,

but eventually complied. Gainer smelled “[f]resh cannabis,” and Brienzo recovered a bag with a

jar containing several smaller bags of suspect cannabis from behind the driver’s seat. The vehicle

was “partially” searched and taken to the station.

¶5 At the station, Gainer noticed that a panel on the interior of the rear passenger door was

loose. By “slightly tugging on it,” he could see the barrel of a handgun protruding from the door.

Officers recovered and inventoried a loaded Ruger .380-caliber handgun. The suspect cannabis

was also inventoried and sent for testing.

1 The State nol-prossed additional counts at the close of its case-in-chief. 2 Officer Gainer’s first name does not appear in the record.

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¶6 The State played a brief clip from Gainer’s body camera, which is included in the record

on appeal and depicts him peeling back the outer edge of a panel on the rear passenger door. Gainer

and an unidentified officer identify a firearm within the panel. Gainer partially pulls the panel off

the door while the unidentified officer retrieves the firearm. Gainer testified that he was able to

peel back the panel within 10 seconds.

¶7 On cross-examination, Gainer testified that he approached the passenger side of the

vehicle, which was occupied, and Brienzo approached the driver’s side. Defendant provided his

license and insurance information right away, but requested a “white shirt” before he would exit

the vehicle. Through the rear driver’s side door, Brienzo saw a black bag which contained a mason

jar with fresh cannabis. Defendant was arrested based on the recovery of those items. The officers

briefly searched the vehicle until they found the narcotics; it was then driven to the station by

another officer.

¶8 Gainer never saw defendant reach towards the rear passenger door and could not estimate

the distance from the driver’s seat to the rear passenger door, but stated that “it would be easily

accessible within a moment’s time without having to leave your seat.” The back panel was loose,

but Gainer could not say how much it was detached or how the panel was affixed to the vehicle.

Defendant told the officers that he did not have a FOID card or a concealed carry card. Gainer

testified that the firearm was also sent for testing, but he never learned the results of any tests on

the firearm.

¶9 On redirect examination, Gainer testified that the firearm was in an “area of the vehicle

[that] could be reached [by the driver] without having to change your seated location,” but “just

by exerting yourself slightly” and reaching back in a diagonal direction.

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¶ 10 On re-cross examination, Gainer testified that he only checked the door from an open

position. Gainer never searched the vehicle from the inside and was unable to say if the panel was

accessible if the door were closed.

¶ 11 The State entered stipulations that (1) if called, a forensic scientist would testify that several

bags recovered from the vehicle contained a substance that tested positive for cannabis, and (2)

defendant did not have a valid FOID card at the time of the incident. The State also entered into

evidence records from the Secretary of State which indicated that defendant owned the vehicle, a

Jeep Liberty, on January 9, 2018.

¶ 12 After closing arguments, the trial court found defendant guilty of both counts of AUUW

and acquitted him of possession of cannabis with intent to deliver. The court acknowledged that

defendant’s behavior after parking “could be related to the gun or to the cannabis that’s in the car.”

But, the court discounted that the passenger could be guilty as the passenger did not own the

vehicle. Instead, the most compelling evidence was that the panel was already detached from the

door when officers searched the vehicle and the firearm was accessible from the driver’s seat.

Defendant filed a motion for a new trial, which was denied.

¶ 13 Following a hearing, the court merged the counts of AUUW into count II and sentenced

defendant to one year in prison; no motion to reconsider sentence was filed.

¶ 14 On appeal, defendant argues that the State never established that he “knowingly” possessed

the firearm beyond a reasonable doubt, and only showed that he owned and drove the vehicle at

the time of his arrest.

¶ 15 The State responds that defendant’s control over the vehicle supports an inference of

knowledge of the presence of contraband, which combined with his suspicious behavior, is

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sufficient to prove possession.

¶ 16 In considering a challenge to the sufficiency of the evidence, this court examines

“ ‘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. Davison, 233 Ill. 2d 30, 43 (2009) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). The trier of fact is responsible for weighing the evidence and credibility of

witnesses and resolving any inconsistencies in testimony, and the reviewing court will not

substitute its judgment on these issues. People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009).

A criminal conviction will not be overturned “unless the evidence is so unreasonable, improbable

or unsatisfactory that it raises a reasonable doubt of defendant’s guilt.” People v. Evans, 209 Ill.

2d 194, 209 (2004).

¶ 17 “The testimony of a single witness is sufficient to convict if the testimony is positive and

credible.” People v. Gray, 2017 IL 120958, ¶ 36. Moreover, a court “is not required to search out

all possible explanations consistent with innocence or be satisfied beyond a reasonable doubt as to

each link in the chain of circumstances.” People v. Wheeler, 226 Ill. 2d 92, 117 (2007). This court

will draw all reasonable inferences in favor of the State. Davison, 233 Ill. 2d at 43.

¶ 18 To sustain a conviction for AUUW as charged, the State was required to show that

defendant possessed a firearm while not at his land, home, or business, was not an invitee

elsewhere, and lacked a valid FOID card. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(C) (West 2018).

Defendant only challenges whether the State proved that he knew that the recovered firearm was

in his vehicle.

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¶ 19 Possession of contraband may be actual or constructive. People v. Givens, 237 Ill. 2d 311,

335 (2010). To establish constructive possession of a firearm, the State must prove that the

defendant (1) knew the firearm was present and (2) exercised immediate and exclusive control

over the area in which the weapon was found. People v. McCurine, 2019 IL App (1st) 160817,

¶ 22. Possession of a firearm in a vehicle may be jointly held by the owner-driver and other

passengers. See People v. McIntyre, 2011 IL App (2d) 100889, ¶ 17. But, even where joint

possession exists, the evidence must support a conclusion that the defendant had control, or the

ability to exercise control, over the contraband. See id. Constructive possession is often proved

through entirely circumstantial evidence. People v. Wright, 2013 IL App (1st) 111803, ¶ 25.

¶ 20 A defendant’s regular and ongoing control over a vehicle may support the inference that

he knows of contraband in the vehicle. People v. Hampton, 358 Ill. App. 3d 1029, 1032 (2005)

(addressing evidence that the defendant knew of a firearm in a vehicle’s glove compartment). In

turn, regular and ongoing control over a vehicle might be established through proof that the

defendant owns or regularly drives the vehicle. Id. However, the fact that a defendant is driving a

vehicle at the time it is stopped by police is insufficient on its own to establish knowledge of a

weapon in the vehicle. Id. at 1031-33. Instead, knowledge can be established by examining (1) the

visibility of the weapon from the defendant’s location, (2) the amount of time the defendant had

an opportunity to observe the weapon, (3) gestures or movements that would suggest the

defendant’s attempts to retrieve or conceal the weapon, and (4) the size of the weapon. People v.

Bailey, 333 Ill. App 3d 888, 892 (2002). The defendant’s knowledge may also be demonstrated by

his statements or conduct upon encountering the police. People v. Spencer, 2012 IL App (1st)

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102094, ¶¶ 17-18. In determining whether the State carried its burden, the trier of fact may rely on

reasonable inferences from the evidence. Id. ¶ 17.

¶ 21 Taking the facts in a light most favorable to the State as we must, the evidence shows that

defendant unlawfully possessed a weapon. Defendant does not dispute that he owned the vehicle

where the firearm was found behind a door panel. He retreated to his vehicle upon seeing police,

only opened his window a few inches, and while he spoke to police and gave them his information,

he also refused to exit the vehicle until a sergeant was called. The trial court acknowledged this

behavior “could be related to the gun or to the cannabis that’s in the car.” However, the trial court

found Gainer’s evidence regarding the accessibility of the firearm, specifically defendant’s ability

to reach it from the driver’s seat, compelling. Together, these facts could lead a rational trier of

fact to infer that defendant had knowledge and control of the firearm.

¶ 22 Defendant argues that the State failed to show knowledge where the length of time

defendant was in the driver’s seat before he exited the vehicle was unknown, Gainer did not see

defendant make furtive gestures or reach into the back seat, and the firearm was not visible until

Gainer detached the panel. Additionally, no testimony established that the firearm was visible from

the front seat of the vehicle, and it may have been left by a passenger or previous owner of the

vehicle. No forensic evidence connected defendant to the weapon and no testimony was presented

regarding the size of the weapon, though footage viewed at trial shows that it was a small firearm.

¶ 23 However, “ ‘the trier of fact is not required to disregard inferences which flow normally

from the evidence and to search out all possible explanations consistent with innocence and raise

them to a level of reasonable doubt.’ ” Wheeler, 226 Ill. 2d at 117 (quoting People v. Hall, 194

Ill.2d 305, 332 (2000)). Taking Gainer’s testimony as true the trier of fact could find the elements

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of the offense beyond a reasonable doubt. Gray, 2017 IL 120958, ¶ 36. The trial court stated that

it found Gainer’s testimony regarding the accessibility of the firearm compelling; this, coupled

with defendant’s behavior upon encountering the police, could suffice for a rational trier of fact to

infer that defendant knew the firearm was in his vehicle. See Wheeler, 226 Ill. 2d at 117 (the court

was not required to “search out all possible explanations consistent with innocence”).

Consequently, we will not disturb the judgment of the trial court.

¶ 24 For the foregoing reasons we affirm the judgment of the circuit court.

¶ 25 Affirmed.

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