People v. Gilmore

2020 IL App (1st) 182555-U

• Court: Appellate Court of Illinois
• Decided: October 23, 2020
• Docket: 1-18-2555
• Status: Unpublished

Opinion

2020 IL App (1st) 182555-U No. 1-18-2555 Order filed October 23, 2020 Sixth 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. 17 CR 12999 ) STEPHAN GILMORE, ) Honorable ) Alfredo Maldonado, Defendant-Appellant. ) Judge presiding.

JUSTICE GRIFFIN delivered the judgment of the court. Presiding Justice Mikva and Justice Harris concurred in the judgment

ORDER

¶1 Held: We affirm defendant’s conviction for aggravated unlawful use of a weapon where the evidence presented was sufficient to support the trial court's finding that he constructively possessed a firearm.

¶2 Following a bench trial, defendant Stephan Gilmore was found guilty of six counts 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 2016)). The court merged the counts into count I and sentenced defendant to one No. 1-18-2555

year in prison. On appeal, defendant contends that the evidence was insufficient to establish that

he possessed a firearm. For the following reasons, we affirm.

¶3 Defendant was charged by indictment with six counts of AUUW stemming from his

alleged possession of an uncased, loaded, and immediately accessible firearm on or about his

person, or in a vehicle on August 12, 2017.

¶4 Prior to trial, defendant filed a motion to suppress evidence and a motion to suppress

statements. In the motion to suppress evidence, defendant requested the court to quash his arrest

and any evidence resulting from it because the arrest was made without authority of a warrant,

there was no probable cause that defendant committed or was about to commit a crime, and there

were no articulable facts that the officer feared for his safety. In the motion to suppress statements,

defendant sought to suppress all communications made by him once he was placed into custody

because he was not informed of his Miranda rights after his arrest and did not waive his rights.

¶5 The court held a hearing on defendant’s motions. Illinois State Trooper Timothy

Mayerbock testified that on August 12, 2017, he was driving on I-94 northbound when he observed

a Hyundai speeding. The Hyundai also had an inoperable registration light. He identified defendant

as the driver of the Hyundai. Defendant exited I-94 northbound at the 43rd Street exit and

Mayerbock executed a traffic stop. When Mayerbock activated his emergency lights, defendant’s

“shoulders leaned towards the front,” and he pulled over to the farthest right-hand portion of

LaSalle Street off the exit ramp. Mayerbock approached defendant on foot and asked for

identification. Defendant indicated he did not have a driver’s license. Mayerbock then detained

defendant and placed him in the rear of the police vehicle.

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¶6 Mayerbock asked defendant if there was any contraband in the vehicle. Defendant initially

stated that it was not his vehicle, and he denied there being contraband inside the vehicle. Based

on defendant’s heavy, labored breathing and excited behavior, Mayerbock again asked if there was

contraband, and defendant stated that there was a small amount of cannabis in the vehicle.

Mayerbock searched the vehicle, and under the driver’s seat felt “a small framed firearm.” He

recovered the firearm and also recovered cannabis, which was in a cigarette box.

¶7 On cross-examination, Mayerbock testified that when he pulled the vehicle over, he

observed both of defendant’s shoulders “duck forward” and his head also move forward.

Defendant was wearing sunglasses when it was approximately 9:48 p.m. and dark outside. When

Mayerbock approached the vehicle, defendant’s “lower body was shifting from side to side,” his

breathing was labored, and he hyperventilated at one point. Defendant also spoke in “excited

tones.” Mayerbock conducted a search of the vehicle to recover the cannabis and as part of tow

inventory, which is routinely done to document personal items of importance. During the search,

Mayerbock detected the mild odor of cannabis. He continued to search the vehicle and found the

firearm at which point he handcuffed and Mirandized defendant. Defendant stated he had no

knowledge of the firearm. Defendant initially stated his sister owned the vehicle and later

elaborated that it belonged to a close friend of his. Mayerbock ran the plate through the Department

of the Secretary of State and verified that defendant was not the owner of the vehicle. The vehicle

was ultimately towed.

¶8 The court denied defendant’s motions. In doing so, the court found there was probable

cause for the arrest, and that although the search of the vehicle violated defendant’s fourth

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amendment rights, the firearm would have been subject to inevitable discovery. Defendant waived

his right to a jury trial, and the case proceeded immediately to a bench trial.

¶9 The parties stipulated that defendant had not been issued a currently valid firearm owner’s

identification (FOID) card or a valid license under the Firearm Concealed Carry Act, that the

firearm recovered from the vehicle was operable and functioned properly, and that the prior

testimony of the hearing on the motions to suppress would be adopted.

¶ 10 The court found defendant guilty of all six counts of AUUW. In doing so, the court noted

defendant appeared to be nervous, made shoulder movements “leaning towards the bottom or

underneath the seat,” and did not own the vehicle but was driving it. The court found that under

the circumstances “most importantly the movements towards the bottom underneath the seat” that

the State proved its case.

¶ 11 Defendant filed a motion for new trial, which was denied. The court merged counts II

through VI into count I, and sentenced defendant to one year in prison. Defendant did not file a

motion to reconsider sentence.

¶ 12 On appeal, defendant argues that the evidence presented was insufficient to prove beyond

a reasonable doubt that he possessed a firearm where the State failed to prove he knowingly

possessed a firearm.

¶ 13 We initially note that the parties disagree on the standard of review. Defendant argues that

because the operative facts are undisputed the trial court’s finding that he possessed the firearm

should be reviewed de novo. See In re Ryan B., 212 Ill. 2d 226, 231 (2004) (holding review was

de novo where there were uncontested facts and the question was whether the defendant’s act of

asking a child a question was enticement or coercion). The State argues that the relevant inquiry

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is 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 in original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979). In this case, we review the

conviction under the Jackson standard because the question presented is factual rather than legal,

and we are asked to rule on inferences drawn from the trial evidence. See People v. Loggins, 2019

IL App (1st) 160482, ¶¶ 29, 32.

¶ 14 In a bench trial, the judge is the trier of fact, and is entrusted “to determine the credibility

of witnesses, to weigh evidence and draw reasonable inferences therefrom, and to resolve any

conflicts in the evidence.” People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Therefore, the

reviewing court “will not substitute its judgment for that of the trier of fact on issues involving the

weight of evidence or the credibility of witnesses.” Id. at 224-25. On appeal, we are “not required

to search out all possible explanations consistent with innocence.” People v. Grant, 2014 IL App

(1st) 100174-B, ¶ 24. Ultimately, the appellate court “will not reverse the trial court's judgment

unless the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable

doubt of the defendant's guilt.” People v. Newton, 2018 IL 122958, ¶ 24.

¶ 15 To sustain defendant’s conviction for AUUW, the State was required to prove that

defendant knowingly carried a firearm on or about his person and he did not have a valid CCL or

FOID card at the time. 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5); (a)(1), (a)(3)(C) (West 2016).

¶ 16 Possession of a firearm can be actual or constructive. People v. Smith, 2015 IL App (1st)

132176, ¶ 26. Where, as here, defendant is not found in actual possession of the firearm the State

must prove defendant constructively possessed the firearm. Constructive possession is established

by proving “that the defendant: (1) knew of the weapon's presence and (2) exercised control over

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the area where the weapon was found.” Id. Both elements of constructive possession are often

proven through circumstantial evidence. People v. McCurine, 2019 IL App (1st) 160817, ¶¶ 22-

24. We first review whether the State sufficiently proved that defendant exercised control over the

vehicle where the firearm was found.

¶ 17 Here, the evidence was sufficient for the trial court to find that defendant exercised control

over the vehicle where the firearm was found. Although defendant did not own the vehicle, the

record shows that he was pulled over after driving alone on I-94. See People v. McNeely, 99 Ill.

App. 3d 1021, 1024 (1981) (Where the defendant is the driver of the vehicle even in cases where

there is a lone passenger, he will have immediate and exclusive control of the inside of the

automobile).

¶ 18 Defendant nevertheless argues that his immediate control over the vehicle was not

sufficient because his control of the vehicle was not exclusive given that someone else owned the

vehicle. See People v. Bailey, 333 Ill. App. 3d 888, 891 (2002) (An element of constructive

possession is defendant exercising “immediate and exclusive control over the area” where the

firearm is found.). However, “[t]he law is clear that the exclusive dominion and control required

to establish constructive possession is not diminished by evidence of others’ access to the

contraband.” People v. Givens, 237 Ill. 2d 311, 338 (2010) (quoting People v. Ingram, 389 Ill.

App. 3d 897, 901 (2009)). “When the relationship of others to the contraband is sufficiently close

to constitute possession, the result is not vindication of the defendant, but rather a situation of joint

possession.” (Emphasis in original.) Id. Here, the State sufficiently proved that defendant was

driver and the lone occupant of the vehicle, and therefore evidence of another’s ownership of the

vehicle does not diminish defendant’s control.

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¶ 19 Having determined that the State sufficiently proved that defendant exercised control over

the vehicle, we now examine whether the evidence was sufficient to show that he had knowledge

of the firearm. Proof that defendant had “regular ongoing, control” over the premises where the

contraband was found and the contraband was “an item human experience teaches is rarely, if ever,

unaccountably in such a place” gives rise to an inference of his knowledge and possession of that

contraband. People v. Hampton, 358 Ill. App. 3d 1029, 1031-33 (2005).

¶ 20 “A defendant’s mere presence in a car, without more,” is not evidence of knowledge of a

firearm in the vehicle. Bailey, 333 Ill. App. 3d at 891. Knowledge may be proven by evidence of

the defendant’s “acts, declarations, or conduct from which it can be inferred that he knew the

contraband existed.” People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. Knowledge may be

inferred from factors including “(1) the visibility of the weapon from defendant's position in the

car, (2) the period of time in which the defendant had an opportunity to observe the weapon, (3)

any gestures by the defendant indicating an effort to retrieve or hide the weapon, and (4) the size

of the weapon.” Bailey, 333 Ill. App. 3d at 892.

¶ 21 Here, Mayerbock observed defendant speeding on I-94 northbound in the local lanes at

51st Street and pulled defendant over at the 43rd Street exit. As Mayerbock activated the

emergency lights, he observed defendant’s “shoulders leaned towards the front.” Mayerbock also

saw from the driver’s side-view mirror both of defendant’s shoulders “duck forward.” See People

v. Nesbit, 398 Ill. App. 3d 200, 210 (2010) (affirming the defendant’s conviction where defendant

was sole occupant and driver of the vehicle, committed furtive movements, and the handle of the

firearm was visible). The “small framed firearm” was discovered under defendant’s seat.

Mayerbock related that defendant was acting excited, shifting side-to-side and laboring in his

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breathing to the point of hyperventilation. In finding defendant guilty, the trial court noted that

defendant’s nervousness demonstrated his knowledge and that he made movements towards the

bottom of the seat where the firearm was recovered. After viewing this evidence in the light most

favorable to the State, we find that a rational trier of fact could have concluded that defendant

constructively possessed the firearm. Stated differently, the evidence supporting the court’s finding

defendant guilty of AUUW is not so unreasonable, improbable, or unsatisfactory as to permit us

to overturn his convictions. See Newton, 2018 IL 122958, ¶ 24.

¶ 22 Defendant argues that there were unrelated reasons for his nervousness including his

possession of cannabis, and driving without a license. However, the trial court is not required to

seek out all possible explanations consistent with innocence and elevate those explanations to a

level or reasonable doubt. People v. Castillo, 2018 IL App (1st) 153147, ¶ 33. As mentioned, it is

for the trier of fact to determine the credibility of witnesses, to weigh evidence and draw reasonable

inferences therefrom, and to resolve any conflicts in the evidence. Siguenza-Brito, 235 Ill. 2d at

228. This court may not substitute its judgment for the trier of fact on these matters. Id. at 224-25.

¶ 23 Defendant’s reliance on People v. Seibech, 141 Ill. App. 3d 45 (1986) is misplaced. In

Seibech, the defendant was convicted of unlawful use of weapons and failure to possess a FOID

card on evidence showing that a firearm was recovered from his vehicle after he had dropped off

two passengers, who hunted earlier in the day. Id. at 46-48. The defendant testified that he was not

aware of the presence of the firearm in the car and explained that one of the two passengers must

have left a firearm in the car because they were the only two to have firearms in the car that day.

Id. at 47. One of the passengers testified that he had left his firearm in the defendant’s car. Id. at

48. This court reversed the defendant’s conviction for unlawful use of weapons finding that the

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evidence was insufficient to show that he knowingly possessed a firearm. Id. at 49. Here, unlike

in Seibech, there was no evidence provided that anyone other than defendant owned the firearm in

question. Also, in this case, unlike in Seibech, there was evidence in the form of defendant’s

movements and nervous behavior to support the inference that he knew the firearm was present.

¶ 24 For the aforementioned reasons, the judgment of the circuit court of Cook County is

affirmed.

¶ 25 Affirmed.

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