People v. Shelato

592 N.E.2d 585, 228 Ill. App. 3d 622, 170 Ill. Dec. 149, 1992 Ill. App. LEXIS 662
CourtAppellate Court of Illinois
DecidedApril 30, 1992
Docket4-91-0663
StatusPublished
Cited by14 cases

This text of 592 N.E.2d 585 (People v. Shelato) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Shelato, 592 N.E.2d 585, 228 Ill. App. 3d 622, 170 Ill. Dec. 149, 1992 Ill. App. LEXIS 662 (Ill. Ct. App. 1992).

Opinion

JUSTICE LUND

delivered the opinion of the court:

Defendant Timothy Shelato was charged in the circuit court of Vermilion County with possession of cannabis with intent to deliver (Ill. Rev. Stat. 1989, ch. 561/2, par. 705(d)), unlawful use of a firearm by a felon (Ill. Rev. Stat. 1989, ch. 38, par. 24 — 1.1(a)), possession of cocaine (Ill. Rev. Stat. 1989, ch. 561/2, par. 1402(b)), and armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2). At the time he was charged with these offenses, defendant was out on bond for another felony in case No. 90 — CF—198. His bond was subsequently revoked in that case. His wife Sylvia was also charged with possession of cannabis with intent to deliver and possession of cocaine.

On August 9, 1990, seven officers of the Illinois State Police, Dan-ville city police, and Vermilion County Metropolitan Enforcement Group executed a search warrant at the mobile home where defendant and Sylvia resided.

Officer Lance Dillon testified that he went to the door of the residence, knocked, and defendant yelled for him to come in. Dillon and another officer, Agent Byers, entered the living room of the residence. Defendant was talking on the phone located on the west side of the living room, and Sylvia was asleep on the couch on the east side of the room. Dillon told defendant he wanted to buy the car located outside the residence. Defendant hung up the phone, and Dillon then informed defendant that he and Byers were police officers and they had a search warrant. When asked what defendant did when given this information, Dillon testified, “He just stayed seated on the couch.” Dillon then alerted the five other officers outside the residence to enter, and Dillon kept defendant seated on the couch until they entered. The officers entered the residence within one to two minutes after Dillon signalled them. The officers had their weapons drawn until they were certain there were no other adults in the residence. At that point, they secured their weapons. After making arrangements for a relative to care for the Shelato children, defendant and Sylvia were removed from the residence.

The residence was then searched by the officers. The first room to be searched, and the only one which concerns us here, was the living room. Various officers who testified described that room. Dillon indicated there was an addition to the mobile home (referred to as a “tip-out”) which made the living room longer than usual. The door he entered faced the west side of the room where defendant was located. Defendant and Sylvia were handcuffed by an officer, and defendant was searched. No weapons or contraband was found on defendant. Defendant and Sylvia were moved around the living room by the officers. No search of the residence began until defendant and Sylvia were removed.

Agent Doug Eckerty testified that when he entered the residence, defendant was seated on the couch on the west wall. He was not handcuffed. Eckerty also testified that one of the other officers found a brown satchel or duffel bag on the floor of the living room by the couch along the east wall. He did not recall whether it was open or zippered closed. Inside the bag were 68 bags of marijuana, several plastic sandwich bags, a bong, a loaded .38 caliber revolver, and a box of Remington shells. There were five rounds of ammunition in the gun. The bags of marijuana were thrown together inside the duffel bag. He estimated the living room was 15 feet (east to west) wide, and perhaps a little more with the “tip-out.”

Investigator Bruce Stark testified that he and another officer were stationed by the back door while Dillon and Byers went into the residence. When he was told that defendant and Sylvia had been secured, he went inside the residence. When he entered, both defendant and Sylvia were sitting on the couch at the east end of the living room near the area where the duffel bag was located. They were not handcuffed.

Officer Larry Wilson testified that defendant gave a statement indicating there had been some trouble around his home and the gun had been given to him by Sylvia’s mother for protection. Defendant did not know the gun was loaded. Wilson testified he did not know whether the duffel bag was open or closed when it was discovered. He entered the residence with Trooper Hardy and Agent Eckerty. At that time, defendant was standing by the west wall of the living room.

Officer Robert Putnam, the officer who found the duffel bag, then testified. He could not be certain whether the bag was open or closed, but he believed it was closed. The gun was not visible upon opening the bag. It was wrapped in a rag and was located toward the bottom of the duffel bag under the marijuana.

Sylvia testified that the duffel bag was zippered closed at the time the officers came into the residence. In May 1990, her mother had given them the gun for protection because they had received threats from someone. She testified the phone outlet is located by the west door of the mobile home. The phone is kept on a table by the couch on the west wall of the living room. The phone has a long extension cord so that it is easily moved around the room — it can be moved all the way to the east end of the room.

After his bench trial, defendant was convicted of all offenses charged. The court entered judgment on three of the counts. The conviction of possession of cannabis with intent to deliver was merged into the armed violence conviction. Defendant was sentenced to one year’s imprisonment for possession of cocaine, three years’ imprisonment for unlawful use of a firearm by a felon, and nine years’ imprisonment on the armed violence charge, all to be served concurrently. The sentences were ordered to run consecutively to a five-year sentence imposed in case No. 90 — CF—198.

Defendant now appeals from his conviction for armed violence, claiming he was not proved guilty beyond a reasonable doubt because the State failed to prove he was “otherwise armed” within the meaning of the statute. Section 33A — 2 of the Criminal Code of 1961 (Code) provides that a person commits armed violence when, “while armed with a dangerous weapon, he commits any felony defined by Illinois Law.” (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 2.) Under section 33A — 1(a) of the Code, a person is considered armed with a dangerous weapon “when he carries on or about his person or is otherwise armed” with a weapon such as a pistol or revolver. (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 1(a).) Defendant argues he was not “otherwise armed” within the meaning of the armed violence statute, because the gun in question was wrapped in a rag inside a duffel bag located more than 10 feet away from him at the time police entered his residence.

A criminal conviction will not be set aside unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276.) As the United States Supreme Court observed in Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct.

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Cite This Page — Counsel Stack

Bluebook (online)
592 N.E.2d 585, 228 Ill. App. 3d 622, 170 Ill. Dec. 149, 1992 Ill. App. LEXIS 662, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shelato-illappct-1992.