People v. Freeman

2020 IL App (1st) 190131-U

Opinion

2020 IL App (1st) 190131-U No. 1-19-0131 Order filed November 12, 2020 Third Division

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). ______________________________________________________________________________ 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. 16 CR 16857 ) DEVON FREEMAN, ) Honorable ) Thomas J. Byrne, Defendant-Appellant. ) Judge, presiding.

JUSTICE BURKE delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for unlawful use or possession of a weapon by a felon is affirmed where there was sufficient circumstantial evidence to establish he constructively possessed the firearm found near him at the time of his arrest.

¶2 Following a jury trial, defendant Devon Freeman was found guilty of unlawful use or

possession of a weapon by a felon (UUWF) and sentenced to six years’ imprisonment. On

appeal, defendant argues we should reverse his conviction where no evidence connected him to

the firearm found near where police found him hiding. For the following reasons, we affirm. No. 1-19-0131

¶3 Defendant was charged by indictment with multiple counts of UUWF and aggravated

unlawful use of a weapon. The State proceeded to trial on one count of UUWF (720 ILCS 5/24-

1.1(a) (West 2016)), and nol-prossed the remaining counts. Relevant here, the indictment alleged

that on or about October 23, 2016, defendant knowingly possessed a firearm after having been

previously convicted of the felony offense of aggravated battery with a firearm under case

number 07 CR 2403002.

¶4 At trial, Chicago police officer John Craig testified that around 10 a.m. on October 23,

2016, he observed a Nissan Murano drive by without a front license plate. Craig followed the

Murano and “ran” its back license plate number, which came back “stolen/missing.” Craig

activated his emergency equipment and curbed the Murano.

¶5 Craig approached the Murano and observed three men inside. In court, Craig identified

defendant as the man in the front passenger seat. Craig asked the driver to roll down the windows

and for everyone to put their hands in the air. Craig then asked the driver for his license. Craig

learned the driver’s license was suspended, so asked the driver for the vehicle’s keys. The driver

complied. While Craig spoke to the driver, the rear passenger tried to open the rear passenger

side door. Craig then called for another squad vehicle. While Craig waited for backup, he asked

the occupants to stay in the Murano with their hands up.

¶6 Two to three minutes later, other units arrived and parked in front of the Murano and

behind Craig’s vehicle. Craig stayed by the driver while two officers stood at the rear passenger

and front passenger doors. Craig asked the driver about weapons. Because he “didn’t like the

questions that were coming back,” Craig had the occupants exit the vehicle. As the officers

removed defendant from the vehicle, he pushed past an officer and ran. The rear occupant also

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ran from the vehicle in the opposite direction, and Craig chased him. Craig’s squad vehicle

camera recorded the traffic stop, which Craig testified provided a true and accurate reflection of

the events. The video was published to the jury. Craig stated it showed him following the

Murano, pulling it over, and speaking to its occupants. It showed additional officers surround the

vehicle, the occupants exit, and defendant running away. On cross-examination, Craig testified

that he did not see any firearms in the Murano during the traffic stop, defendant holding a

firearm, a bulge in defendant’s pants, or defendant holding his waistband.

¶7 Chicago police officer Michael Donahue testified that he responded to Craig’s call for

assistance. In court, Donahue identified defendant as the front passenger of the stopped vehicle.

Donahue placed himself by defendant’s door and observed the rear passenger repeatedly drop his

hand despite multiple requests to keep his hands visible. Craig then asked the occupants to exit

the vehicle and Donahue asked defendant to exit. When defendant began exiting, Donahue

turned defendant to face the vehicle so he could conduct a protective pat down because he

believed there was a weapon in the vehicle or on defendant’s person. As Donahue did so, he

“glanced” at the rear passenger who had lowered his hand again, and defendant ran before

Donahue was able to start a pat down. Donahue pursued defendant, who held the “waist area” of

his pants as he ran. Donahue had made more than 30 arrests involving firearms. He testified

suspects commonly hold firearms on their persons in their front pocket or their waist area.

¶8 When the chase began, Donahue tripped and lost sight of defendant in an alley. As

Donahue entered the alley, he heard a “brush area” next to a chain link fence “moving” and the

fence rattle. Donahue then heard several gunshots in another area, and left to investigate them.

Approximately 10 minutes later, Donahue returned to the alley with other officers. He observed

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defendant lying on the ground in a large bush next to a chain link fence. Donahue called to other

officers who then detained defendant. Donahue later learned that a firearm was recovered from

the bush.

¶9 Donahue testified he reviewed video from other officers’ squad vehicles that truly and

accurately depicted the events. The video was published to the jury, and shows the Murano’s

passengers exiting and running in opposite directions. The State also published photographs,

which Donahue stated showed the area where defendant was found. The photographs depict an

area with large shrubbery and a nearby chain link fence.

¶ 10 On cross-examination, Donahue testified that he never saw defendant with a firearm or

make furtive movements while in the vehicle. He did not see a weapon, bulge, or other object on

defendant’s waist. Donahue briefly touched defendant’s sides on his lower back under his arms

to position him for a pat down.

¶ 11 Chicago police detective Brian Burg testified he responded to the scene and Donahue had

located an individual who fled on foot. Burg described the location Donahue indicated as an

“overgrown bushy area” 6 feet high and 20 feet square. When Burg first arrived to the area, he

had to physically move the brush out of the way to get into the bush. He then saw a man, who he

identified as defendant in court, lying face down in the bush with a firearm 12 to 18 inches from

his head. Burg did not have to dig to find the firearm. The State published photographs for the

jury, which Burg stated truly and accurately depicted the area where defendant was found. The

photographs show a large bush with a trampled area in the center. They also show a firearm on

the ground among twigs and greenery, near a can, tire rim, and other debris. Burg identified the

firearm in court.

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¶ 12 On cross-examination, Burg testified that he saw defendant at the same time he saw the

firearm, and immediately wanted to secure defendant’s arms so defendant could not reach for the

firearm. He never saw defendant holding the firearm. Although Burg did not initially notice, he

later became aware that there was debris and garbage, including a tire rim and empty cans, in the

area where defendant was found. Defense counsel showed Burg a photograph, which Burg stated

depicted the firearm’s “handle” closest to a blue can. Defense counsel showed Burg a different

photograph, which Burg stated depicted the firearm’s “muzzle” closest to the can. 1

¶ 13 Raphael Garcia, an evidence technician for the Chicago Police Department, testified that

he photographed the scene where defendant was found. Garcia photographed and then recovered

a loaded 9-millimeter semiautomatic firearm from under a bush. The firearm was sent to the

crime lab for testing. The State published photographs, which Garcia stated depicted the

recovered firearm. Garcia also identified the actual firearm.

¶ 14 On cross-examination, Garcia testified that one photograph of the firearm showed its

“brick” closest to a blue can, while another photograph showed the firearm’s “barrel” closest to

the can. Garcia explained that one photograph was how the firearm was originally found, while

the officers moved the firearm for the other photograph to get a “better view” of it. He further

explained that the firearm was found in a “standing position” with sticks and branches on it.

Garcia viewed another photograph of the firearm, which he stated depicted a tire rim around 24

inches away.

1 At trial, defense counsel entered this photograph as Defense Exhibit 1. However, Defense Exhibit 1 is not included in the impounding order and no exhibit labeled Defense Exhibit 1 is included in the record on appeal.

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¶ 15 The State entered a stipulation that defendant was previously convicted of a qualifying

felony offense. The State also entered stipulations that, if called, Ronald Tomek, an expert in

forensic biology, would testify he analyzed two sets of swabs used to collect cellular material

from the recovered firearm. Wendy Gruhl, an expert in forensic DNA analysis, would testify her

analysis of the swabs revealed a mixture of at least four people’s DNA, which was not suitable

for testing. The DNA from the cartridges and magazine had a mixture of at least two people,

which was also not suitable for testing. Joseph Wohrstein, an expert in latent print identification,

would testify that no fingerprints were found on the firearm, live cartridges, or magazine, but that

people can touch objects without leaving a fingerprint. The State also entered a stipulation that

during defendant’s custodial search, an officer recovered one hand rolled cigar and one small zip

lock bag containing cannabis. The State entered into evidence the recovered firearm and a map

depicting where the traffic stop occurred and defendant was found.

¶ 16 The jury found defendant guilty of UUWF. Defendant filed a motion for a new trial,

which the trial court denied. Following a sentencing hearing, the trial court sentenced defendant

to six years’ imprisonment. Defendant filed a motion to reconsider his sentence, which the trial

court denied.

¶ 17 On appeal, defendant argues we should reverse his conviction because there was no

evidence connecting him to the firearm found near where he was hiding and the State failed to

prove he had any knowledge that the firearm was present in the bush.

¶ 18 In reviewing the sufficiency of the evidence, we ask whether a rational trier of fact,

viewing the evidence in the light most favorable to the State, could have found the elements of

the crime beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). Under this

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standard, we will not retry the defendant, and must draw all reasonable inferences from the

evidence in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42. While not conclusive, the

trier of fact’s determinations regarding witness credibility, the weight of the evidence, and the

resolution of conflicts in the evidence are entitled to great deference. Ross, 229 Ill. 2d at 272.

¶ 19 To convict defendant of UUWF, the State had to prove that he was previously convicted

of a qualifying felony and knowingly possessed on or about his person a firearm. See 720 ILCS

5/24-1.1(a) (West 2016). Defendant does not challenge the evidence demonstrating his prior

qualifying conviction. He solely argues the State failed to prove he knowingly possessed the

firearm.

¶ 20 The element of possession may be established by either actual

or constructive possession. People v. Tates, 2016 IL App (1st) 140619, ¶ 19. Here, the officers

found the firearm near defendant but not on his person. Therefore, the State was required to

demonstrate that he constructively possessed it. See People v. Brown, 327 Ill. App. 3d 816, 824

(2002). To do so, the State had to show defendant (1) knew the firearm was present, and (2)

“exercised immediate and exclusive control over the area” where it was found. People v. Ross,

407 Ill. App. 3d 931, 935 (2011).

¶ 21 A defendant’s knowledge can be inferred from various factors, such as the visibility of

the weapon, the amount of time that a defendant had to observe it, the weapon’s size, and

whether a defendant made gestures or movements suggesting he attempted to retrieve or conceal

it. People v. Nesbit, 398 Ill. App. 3d 200, 209 (2010). Control is established by showing that a

defendant had “the intent and capability to maintain control and dominion over an

item.” (Internal quotation marks omitted.) People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. A

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defendant’s control over the area where a weapon is found gives rise to the inference that he

possessed it. People v. McCarter, 339 Ill. App. 3d 876, 879 (2003).

¶ 22 “Constructive possession is often proven entirely by circumstantial evidence.” People v.

Maldonado, 2015 IL App (1st) 131874, ¶ 23. Further, “[k]nowledge and possession are questions

of fact to be resolved by the trier of fact, whose findings should not be disturbed upon review

unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it

creates a reasonable doubt of guilt.” (Internal quotation marks omitted.) People v. Faulkner,

2017 IL App (1st) 132884, ¶ 39.

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

fact could have found that defendant had constructive possession of the firearm. The evidence

showed that defendant was in a vehicle that was pulled over for a traffic stop. When Officer

Donahue asked defendant to exit the vehicle and prepared to perform a protective pat down,

defendant pushed past him and fled, from which a trier of fact can infer a defendant’s guilt. See

People v. Moore, 2015 IL App (1st) 140051, ¶ 26 (“[e]vidence of flight is admissible as tending

to demonstrate a defendant’s consciousness of guilt”).

¶ 24 Further, Donahue testified defendant held his waist area as he ran and, in Donahue’s

experience as a police officer, suspects commonly held their firearms in the waist area. With

Donahue chasing after him, defendant ran into an overgrown area, where he was found some 10

minutes later hiding face down in a bush with a firearm 12 to 18 inches from his head. From this

evidence, the jury could reasonably believe that defendant, a convicted felon, had the firearm in

his waistband when he stepped from the vehicle, fled from police before the pat down to avoid

detection of the firearm, and took the firearm from his waistband when he hid with the firearm in

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a bush, demonstrating his knowing possession of the firearm. See People v. Anderson, 2018 IL

App (4th) 160037, ¶¶ 33-34 (finding the evidence was sufficient to demonstrate that the

defendant had constructive possession over a firearm found lying two to three feet from him in a

yard where no one else was present after he fled officers with his hands tucked inside his

waistband, even though he was not seen holding a firearm).

¶ 25 Citing People v. Sams, 2013 IL App (1st) 121431, defendant argues the State failed to

prove he possessed the firearm in the bush. In Sams, we found the State failed to prove the

defendant constructively possessed a weapon police officers found underneath a couch in a

residence he was seen exiting, but where he did not live. Sams, 2013 IL App (1st) 121431, ¶¶ 13-

14, 19. We noted the officers’ testimony showed “only that [the] defendant walked out of a

house in which a gun was later found” and that “[m]ere presence in the vicinity or access to the

area in which contraband is found is insufficient to establish constructive possession.” Id. ¶ 13.

Defendant argues that, as in Sams, no officer saw defendant with a firearm, saw defendant make

furtive movements, or saw anything else, such as a suspicious “bulge,” to suggest defendant was

carrying a firearm. He argues his proximity to the firearm does not establish he knew it was

there.

¶ 26 We find Sams distinguishable. Unlike in Sams, defendant here fled from a police officer

about to conduct a protective pat down of him; as he ran, he was holding the front waist area of

his pants where “suspects” commonly hold their firearms; and police then found him lying in a

bush with a firearm 12 to 18 inches away from him and secured his arms so that he could not

reach the weapon. Unlike in Sams, the evidence reasonably demonstrates defendant

constructively possessed the firearm found inches from where he was found.

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¶ 27 Defendant argues his fleeing police does not demonstrate he ran because he was carrying

a firearm as he had an independent reason for running from police: he was carrying an unlawful

controlled substance in his waistband. 2 See People v. Donahue, 2014 IL App (1st) 120163, ¶ 91

(finding that, where the defendant had two other pending criminal cases, “his flight did not

necessarily reflect consciousness of guilt of this particular crime”). Defendant asserts his holding

his waist area as he ran could have been because he was attempting to hold onto the drugs,

particularly where no officers saw a firearm or “bulge” on defendant.

¶ 28 However, the jury heard the evidence that defendant ran from the traffic stop holding his

waist area and was found with drugs on his person and a firearm nearby. Given Donahue’s

testimony that defendant was holding his waist area and that suspects often hold firearms there,

we cannot say that the jury’s conclusion that defendant possessed the firearm was unreasonable

simply because it could have concluded otherwise based on the evidence presented. See In re

Jonathon C., 2011 IL 107750, ¶ 60 (“A trier of fact is not required to disregard inferences which

flow normally from the evidence before it, nor must the trier of fact search out all possible

explanations consistent with innocence, and raise those explanations to a level of reasonable

doubt.”).

¶ 29 Similarly, we reject defendant’s argument that the evidence that there were discarded

items in the bush near the firearm, the firearm was found under sticks and underbrush, Donahue

did not see the firearm when he found defendant in the bush, and no forensic evidence linked

defendant to the firearm does not support an inference defendant knew the firearm was in the 2 At multiple points in his briefs, defendant asserts the drugs were recovered from his waistband, citing to the stipulation read into the record at “Supp.R.576.” However, the stipulation only states that, pursuant to a custodial search, a hand rolled cigar and a small zip lock bag of cannabis were recovered from defendant. It does not specify where the drugs were found on defendant’s person.

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bush. The jury heard these same arguments and the underlying evidence and concluded the

evidence was sufficient to demonstrate defendant’s knowing possession of the firearm. Viewing

the evidence in the light most favorable to the State, we cannot find the evidence so

unbelievable, improbable, or unsatisfactory that no rational trier of fact could have found

defendant guilty of UUWF.

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

¶ 31 Affirmed.

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