People v. Givens

2021 IL App (2d) 190132-U

• Court: Appellate Court of Illinois
• Decided: March 26, 2021
• Docket: 2-19-0132
• Status: Unpublished

Opinion

2021 IL App (2d) 190132-U No. 2-19-0132 Order filed March 26, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 17-CF-2304 ) DERRICK L. GIVENS, ) Honorable ) John A. Barsanti, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUDSON delivered the judgment of the court. Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.

ORDER

¶1 Held: The evidence established that defendant knowingly possessed a firearm (and thus was an armed habitual criminal) where (1) a passenger in a vehicle driven by defendant as he fled from the police testified that he saw defendant reach into his jacket and throw an object out the window during the pursuit; (2) shortly after the crash, police found a handgun along the route of the pursuit; and (3) the passenger’s criminal record was not a basis for rejecting his testimony.

¶2 In this appeal, defendant, Derrick L. Givens, contends that the evidence in support of his

conviction of being an armed habitual criminal (720 ILCS 5/24-1.7(a) (West 2016)) was

insufficient in that it failed to properly establish his constructive possession of a firearm that the 2021 IL App (2d) 190132-U

police found near where he crashed a car during a chase. We conclude that the evidence adequately

established defendant’s actual possession of the firearm. Accordingly, we affirm.

¶3 I. BACKGROUND

¶4 A grand jury indicted defendant on eight counts relating to a December 9, 2017, traffic stop

and defendant’s ensuing flight from that stop. The State later nolle-prossed two of those counts,

and defendant proceeded to a jury trial on the following six counts: armed habitual criminal (720

ILCS 5/24-1.7(a) (West 2016)) (count I); armed violence (720 ILCS 5/33A-2(a) (West 2016))

predicated on unlawful possession of a substance containing heroin (720 ILCS 570/402(c) (West

2016)) (count III); armed violence (720 ILCS 5/33A-2(a) (West 2016)) predicated on aggravated

fleeing or attempting to elude a law enforcement officer (625 ILCS 5/11-204.1(a)(l) (West 2016))

(count IV); unlawful possession, with intent to deliver, of one gram or more but less than 15 grams

of a substance containing heroin (720 ILCS 570/401(c)(l) (West 2016)) (count V); and aggravated

fleeing or attempting to elude a peace officer—in excess of 21 miles per hour over the posted speed

limit (625 ILCS 5/11-204.l(a)(l) (West 2016)) (count VII); and unlawful possession of a substance

containing heroin (720 ILCS 570/402(c) (West 2016)) (count VIII).

¶5 At trial, the parties stipulated to defendant’s prior convictions of two forcible felonies.

¶6 The State’s first witness, Detrick Walton, admitted that he had been convicted of felonies

in Mississippi. He testified that, on December 9, 2017, he was one of two passengers in a car that

was involved in a crash. At the time of the crash, he was carrying about a gram of marijuana,

which the police learned of but for which they did not seek to prosecute him. He did not have any

other contraband—drugs or firearms—with him in the car. He knew the driver by the name of

“Derrick Givens,” but could not identify defendant in court. He knew the other passenger only by

the name “Rick,” but he knew Rick better than Givens because he had cut Rick’s hair. He was in

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the car because he needed a ride from a hospital to a cousin’s house. Rick was in the front

passenger seat, and Walton was in the back passenger-side seat.

¶7 Walton testified that police officers pulled the car over for a traffic violation, but then the

driver suddenly pulled away. As the car went around a corner, Walton saw the driver “fidgeting

for something.” The driver seemed to reach into the right side of his jacket with his left hand and

then put his left hand out the window with something in that hand. Walton “couldn’t make out

what it was” at that point. After defendant put his hand out the window, Walton heard something

hit the ground with a “bang.” It was “just like a piece of steel hitting concrete.” Under cross-

examination, he explained what he had sensed as follows:

“Q. *** Now, after the car took off from the police, you said you saw the driver

reaching into his jacket?

A. Yeah.

Q. And you motioned with your left arm?

A. Yes.

Q. And you said you saw him throw it out?

A. I seen him throw something out the window. I couldn’t make it out what it was

until it hit the ground. I know it wasn’t no paper or nothing.

Q. So when it hit the ground, you knew what it was?

A. Yeah, common sense tell you that.”

¶8 The car drove what Walton estimated to be a further 25 to 30 feet and then flipped so that

it came to rest with the driver’s side down. Walton, who was not wearing a seatbelt, slid over into

the driver’s side of the back seat.

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¶9 Several investigators with the Aurora Police Department testified. Investigator Colin

Griffin testified that, at about 5:22 p.m. on December 9, 2017, he conducted a traffic stop for

improper lane usage. He activated the emergency lights in his “semi-marked” car. The vehicle

pulled over on Elmwood Drive just north of Indian Trail.

¶ 10 Griffin and his partner, Investigator Erik Swastek, approached the vehicle on opposite

sides. The driver’s window was down, and, when Griffin looked through that window, he could

see that there were three people in the car: the driver, a front-seat passenger, and another passenger

behind the first. He could smell marijuana in the car. The driver, whom he recognized from

“previous contacts,” was defendant. Defendant acknowledged to Griffin that he was still on

“parole.” Defendant began to grasp the steering wheel tightly and look from side to side. He also

seemed to be hyperventilating. Griffin, therefore, asked him to turn the car’s engine off.

Defendant did nothing; Griffin again told him to turn the engine off. Defendant then drove away,

accelerating rapidly to a speed that greatly exceeded the speed limit for the residential street.

¶ 11 Griffin and Swastek returned to their vehicle, activated the siren, and pursued the car,

which belonged to Derrick Gipson. The squad car’s dashboard camera was active. Griffin did not

notice anything coming from the car’s windows during the pursuit. The chase lasted about 30

seconds before the car struck a curb and flipped onto its side. What appeared to be contraband

drugs were found in several parts of the car, including a pill bottle with a “rock-like substance”

found in the back seat. Griffin gave defendant a ticket for driving with a suspended license.

¶ 12 The State played the recording made by the dashboard camera for the jury. Griffin pointed

out several frames in the video in which something was briefly visible in the street in “the area

where the gun was recovered.” That recording was admitted into evidence. On our own review

of the video, we note that a small bright spot appears briefly at the side of the street in a place

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consistent with Walton’s testimony of something having been thrown from the car’s driver’s side

window.

¶ 13 Investigator Gregory Christoffel testified that he was present when Swastek pried the

windshield off the car to free defendant and the two passengers. Once a large part of the windshield

was out, Christoffel could see defendant, whom he recognized, unbelted in the driver’s seat and

lying partly on the ground where the car had come to rest. When defendant left the car through

the windshield opening, Christoffel immediately saw “a clear plastic bag with a rock-like

substance laying [sic] in the grass, right where the driver’s window was at.”

¶ 14 Investigator Ronald McNeff testified that he went to the scene of a car crash in a residential

area of Aurora in response to a dispatch. Following standard practice, he started searching

backward along the car’s route. He searched along that route for a few minutes before finding a

firearm near the curb on the west side of the street. His partner, Investigator Brian Hammond,

photographed the firearm where it lay before collecting it.

¶ 15 Hammond testified that the firearm he recovered was a semiautomatic handgun. It had 16

rounds in the magazine, but the chamber was empty. The gun was scratched on the side facing

down. Hammond also photographed items recovered from the car, including a small digital scale

found in the vicinity of the driver’s seat.

¶ 16 The parties stipulated to testimony about the forensic testing of some recovered items. The

substance in the bag that Christoffel found under defendant weighed 2.4 grams and tested positive

for heroin. The gun was a “Smith and Wesson model SD9 VE .9 [sic] millimeter Lugar caliber

semi-automatic pistol *** with attached laser light.” The gun was swabbed for DNA and examined

for latent fingerprints. Some partial prints were found and collected for possible comparison.

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¶ 17 Katherine Sullivan, a forensic biologist employed by the Illinois State Police, testified that

she performed a DNA analysis on the swabbings taken from the gun. According to Sullivan “DNA

types *** detected in [the first] sample were actually indicative of a mixture of DNA profiles from

at least four different individuals.” “Those profiles were not able to be sorted into individual

contributors,” and “th[e] mixture [was] potentially incomplete and unsuitable for comparison to

any known standards.” The second sample was similar: “the DNA types *** were indicative of a

mixture of actually at least three people,” and the “mixture was potentially incomplete and

unsuitable for comparison to any standard.” Because no comparisons were possible, defendant

could not be excluded as a contributor to either sample; the samples were too poor to allow any

conclusions. Similarly, a latent print examiner for the Aurora police testified that no latent prints

were suitable for comparison.

¶ 18 Investigator Chris Converse, who had experience in narcotics investigations, testified that

the 2.4 grams of heroin found in a bag near defendant appeared to be uncut and thus could have

been repackaged into multiple doses for resale. He also testified that drug dealers often use digital

scales, such as the one recovered from the car, to divide drugs for resale. Sandwich bags, which

too were found in the car, also are associated with the repackaging of drugs for resale. Converse

testified that defendant was found to be carrying $530 in cash. The front-seat passenger, Derrick

Gipson, was carrying $230 in cash. Converse explained that carrying cash is associated with drug

transactions.

¶ 19 The State rested. Defendant moved for a directed verdict, and the trial court denied the

motion.

¶ 20 Defendant called Gipson as his first witness. In December, 2017, Gipson was on probation

in a gun-related case. At about 5:30 p.m. on December 9, 2017, Gipson and defendant left a church

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gymnasium in Gipson’s gold Saturn car; defendant was driving because, according to Gipson, “he

always drives.” They picked another passenger up at Mercy Hospital; that person was going to

give them a haircut. The police stopped the car at Indian Trail and Elmwood, but defendant drove

away from the stop. At no time during the ensuing chase did Gipson see defendant reach into his

jacket or make a motion out the window. He did not have a gun or drugs, and he did not see

defendant with a gun or drugs.

¶ 21 Defendant called Investigator Swastek as his second and final witness. He stated that he

and his partner “had set up *** covert surveillance on [a] vehicle”—Gipson’s gold Saturn. They

followed it for “less than ten minutes” before stopping it when the car’s wheels crossed the center

line. Swastek, who was on the passenger side of the squad car, got out and went to the passenger

side of the Saturn. He tapped on the window—he could not remember whether it was the front or

the back—and started talking to Gipson, whom he recognized. He did not recognize the back-seat

passenger, and he could not see the driver’s face. As he spoke to Gipson, he “detected an odor of

burnt cannabis coming from [the interior of the car.]” The car suddenly sped away, and Swastek

ran back to the squad car. Swastek agreed that, when he interviewed Walton, Walton said that he

“knew the front passenger from a long time ago but didn’t know the driver” (this was inconsistent,

we note, with Walton’s testimony that he knew the driver, though not as well as the second

passenger). Swastek further agreed that defendant had $530 in cash on his person.

¶ 22 In its closing argument, the State noted to the jury that it had received instructions about

both actual and constructive possession, but the State argued only that defendant had actual

possession of the gun.

¶ 23 The jury found defendant guilty of counts I (armed habitual criminal), IV (armed violence

predicated on aggravated fleeing or attempting to elude a peace officer) and VII (aggravated

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fleeing or attempting to elude a peace officer). It found him not guilty of counts III (armed violence

predicated on unlawful possession of a substance containing heroin), V (unlawful possession, with

intent to deliver, of a substance containing heroin), and VII (unlawful possession of a substance

containing heroin).

¶ 24 Defendant moved for a new trial or for judgments notwithstanding the verdict. He

contended that (1) the evidence was insufficient to support the guilty verdicts and (2) that fleeing

and eluding was not a proper predicate for the armed violence conviction. The court rejected the

first contention but agreed with the second and thus vacated the conviction on count IV. The court

imposed concurrent terms of 3 and 10 years’ imprisonment on counts I (armed habitual criminal)

and VII (aggravated fleeing or attempting to elude a peace officer), respectively. Defendant timely

appealed.

¶ 25 II. ANALYSIS

¶ 26 On appeal, defendant contends that his conviction of being an armed habitual criminal must

be reversed because the State failed to prove that he knowingly possessed a firearm. See 720 ILCS

5/24-1.7(a) (West 2016) (“A person commits the offense of being an armed habitual criminal if he

or she receives, sells, possesses, or transfers any firearm after having been convicted a total of 2

or more times of any combination of *** offenses [listed in the provision.]”). Defendant asserts

without argument that he did not have actual possession of the gun that the police found on the

side of the roadway. He does provide argument that he did not have constructive possession of

the gun, but we agree with the State that defendant indeed had actual possession of the gun.

¶ 27 We review the sufficiency of the evidence under the standard of Jackson v. Virginia, 443

U.S. 307 (1979), as adopted by People v. Collins, 106 Ill. 2d 237, 261 (1985). When a reviewing

court decides a challenge to the sufficiency of the evidence, “ ‘the relevant question is whether,

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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.) Collins, 106 Ill. 2d at 261 (quoting Jackson, 443 U.S. at 319). “Under this standard, a

reviewing court must allow all reasonable inferences from the record in favor of the prosecution.”

People v. Davison, 233 Ill. 2d 30, 43 (2009). The following principles also govern our review:

“[R]eviewing courts apply [the standard of Jackson and Collins] regardless of whether the

evidence is direct or circumstantial, and circumstantial evidence meeting this standard is

sufficient to sustain a criminal conviction. ***

[When the proof is based on circumstantial evidence, t]he trier of fact need not ***

be satisfied beyond a reasonable doubt as to each link in the chain of circumstances. It is

sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable

doubt of the defendant’s guilt. Further, in weighing evidence, the trier of fact is not

required to disregard inferences which flow normally from the evidence before it, nor need

it search out all possible explanations consistent with innocence and raise them to a level

of reasonable doubt.” (Emphasis in original. Internal quotation marks and citations

omitted.) People v. Jackson, 232 Ill. 2d 246, 280-81 (2009).

“Under [the standard of Jackson and Collins], the reviewing court does not retry the

defendant, and the trier of fact remains responsible for making determinations regarding

the credibility of witnesses, the weight to be given their testimony, and the reasonable

inferences to be drawn from the evidence. But merely because the trier of fact accepted

certain testimony or made certain inferences based on the evidence does not guarantee the

reasonableness of its decision. A conviction will be reversed where the evidence is so

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unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of [the]

defendant’s guilt.” (Citations omitted.) People v. Ross, 229 Ill. 2d 255, 272 (2008).

“ ‘[T]he testimony of just one credible witness is sufficient for conviction.’ ” People v. Swenson,

2020 IL 124688, ¶ 36 (quoting City of Chicago v. Morris, 47 Ill. 2d 226, 230 (1970)).

¶ 28 Possession of contraband may be either actual or constructive. To show actual possession,

the State must show that the contraband was “in the immediate and exclusive control of [the]

defendant.” People v. Frieberg, 147 Ill. 2d 326, 360 (1992). “Mere proximity is not sufficient

evidence of actual possession.” People v. Schmalz, 194 Ill. 2d 75, 81 (2000). Actual possession

requires that the defendant exercise “present personal dominion” over the contraband; such

possession exists when the defendant “exercises immediate and exclusive dominion or control”

over the contraband. Schmalz, 194 Ill. 2d at 82. However, “[a]ctual possession does not require

present personal touching of the illicit material but, rather, present personal dominion over it.”

Schmalz, 194 Ill. 2d at 82. The State may show actual possession through acts such as hiding or

trying to dispose of the contraband. E.g., People v. Carodine, 374 Ill. App. 3d 16, 25 (2007). In

other words, an attempt to dispose of contraband is an act of control. Thus, although an attempt

at disposal may end a defendant’s direct contact with the contraband, such an act is itself an

instance of the exercise of present personal dominion.

¶ 29 The State contends that Walton’s testimony was sufficient to permit a rational jury to

conclude that defendant removed the gun from his person and tossed it out the window, thereby

exercising the present personal dominion necessary for actual possession of the gun. Defendant

contends that the State failed to connect him to the gun found in the street:

“There is no connection between [defendant] and weapons. There were two others

in the vehicle with [an] incentive to get the gun out of the car[ ]as both were convicted

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felons. There were ridge impressions lifted from the weapon but none that belong[ed] to

the defendant. There was DNA tested off the gun but it did not belong to the Defendant.

There was no admission to it’s [sic] possession by [defendant]. No one saw a gun being

thrown from the vehicle. The gun was found away from the vehicle in which three persons

were found. In this case, the State presented three witnesses, none of whom saw a gun in

the defendant’s hands. The evidence merely shows that the gun was recovered after the

crash that involved three individuals in the vehicle; any[ ]one of which [sic] could have

thrown the gun from the car.”

¶ 30 We agree with the State. Walton’s testimony that the gun recovered by the police was

thrown from the car was supported by the location and condition of the gun. Rejecting Walton’s

testimony would leave an implausible conclusion that it was sheer coincidence that a gun was

found in the street in the area where Walton said the gun was thrown. Clearly, a rational jury could

credit Walton’s testimony.

¶ 31 We note that defendant misstates the forensic evidence. Neither the DNA nor the partial

fingerprints recovered from the gun were suitable for comparison. Thus, it is incorrect to state that

the forensic testing showed that neither the fingerprints nor the DNA were defendant’s. Rather,

the testimony was simply inconclusive.

¶ 32 The jury deemed Walton credible: the difference between the drug-related charges, which

the jury rejected, and the gun-related charges, which it accepted, was Walton’s testimony. The

jury was entitled to make that determination. The jury decides the credibility of a witness’s

testimony; a reviewing court may not set aside a conviction based on a key witness’s lack of

credibility unless that testimony is “so lacking in credibility that a reasonable doubt of defendant’s

guilt remains.” People v. Schott, 145 Ill. 2d 188, 206-07 (1991). Thus, in Schott, our supreme

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court deemed the evidence to be insufficient when the key witness admitted that she “lies ‘a lot’ ”

and “her testimony was so fraught with inconsistencies and contradictions” that no rational person

could find her credible. Schott, 145 Ill. 2d at 206-07.

¶ 33 Defendant implies that Walton was not credible because his felony record and the small

amount of cannabis found on his person meant that he was under pressure to give testimony that

favored the State. This is far from demonstrating that Walton was so unworthy of credit that no

rational person could accept his testimony. Notably, had Walton in fact tried to favor the State, he

almost certainly would have testified that he could see a gun in defendant’s hand. Instead,

Walton’s testimony that he saw and heard things that led him to conclude that defendant had a gun

suggests scrupulous care to distinguish inferences from observation. Walton was plainly not “so

lacking in credibility that a reasonable doubt of defendant’s guilt remain[ed]” (Schott, 145 Ill. 2d

at 207).

¶ 34 Defendant suggests that Walton’s testimony was insufficiently specific to exclude the

possibility that the presence of the gun in the roadway was mere coincidence. As we noted, it is

implausible that the gun would have been in a place that corresponded to Walton’s testimony

unless Walton had some source of knowledge about where the gun had fallen. In short, Walton’s

testimony was not inherently implausible nor was he otherwise discredited. A rational jury could

believe him.

¶ 35 Defendant argues that, “[e]ven if the State could prove [that he] had knowledge of the

presence of the weapon, [it] would be unable to prove [that he] exercised immediate and exclusive

control over the area where the gun was found” and thus would be unable to show that he had

constructive possession of the gun. But the requirement that the State must show immediate and

exclusive control of an area in which the contraband was found is a requirement for establishing

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constructive possession. See, e.g., People v Ross, 2019 IL App (1st) 162341, ¶ 31. Possession of

a prohibited item may be either actual or constructive. But, as we said above, the prosecution may

show actual possession by demonstrating that the defendant has “exercise[d] immediate and

exclusive dominion or control” over the contraband (Schmalz, 194 Ill. 2d at 82), such as by

showing that the defendant tried to hide or dispose of the contraband (e.g., Carodine, 374 Ill. App.

3d at 25). That is, an attempt to dispose of contraband is itself an act of control over that

contraband. Thus, although an attempt at disposal may end a defendant’s direct contact with the

contraband, such an act is nevertheless an instance of the exercise of present personal dominion.

Evidence sufficient to show that defendant threw the gun out the window is thus evidence

sufficient to show his actual possession of the gun.

¶ 36 Defendant cites People v. Spencer, 2012 IL App (1st) 102094, in support of his claim that,

“[s]ince [he] did not have actual physical possession of a weapon at the time of the incident, the

State must prove constructive possession. Spencer notes, “When a defendant is not found in actual

possession, the State must prove constructive possession” (Spencer, 2012 IL App (1st) 102094,

¶ 17). The statement in Spencer is correct, but it does not aid defendant, because the evidence was

sufficient to support a conviction based on actual possession.

¶ 37 III. CONCLUSION

¶ 38 For the reasons stated, we conclude that the evidence that defendant was in actual

possession of the handgun was sufficient to sustain his conviction of being an armed habitual

criminal, and we, therefore, affirm that conviction.

¶ 39 Affirmed.

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