No. 1-21-1242

Order filed December 27, 2022.

First 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. 21119172101 ) ANTHONY HARVEY, ) The Honorable ) Robert D. Kuzas, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________

PRESIDING JUSTICE LAVIN delivered the judgment of the court. Justice Coghlan concurred in the judgment. Justice Pucinski dissented.

ORDER

¶1 Held: The evidence was sufficient to sustain the defendant’s conviction for unlawful use of a weapon where his furtive movement in the area where a gun was subsequently found permitted the trial court to find he knew the firearm was present. Additionally, the State established the corpus delicti where the defendant’s statement was corroborated by his furtive movement.

¶2 Following a bench trial, defendant Anthony Harvey was found guilty of misdemeanor

unlawful use of a weapon and was sentenced to 30 days in prison. On appeal, he asserts that the No. 1-21-1242

evidence was insufficient to demonstrate that he knew a weapon was present. Defendant also

asserts that the State did not establish the corpus delicti because it failed to corroborate his

statement to police that he did not possess a concealed carry license (CCL). For the following

reasons, we affirm the trial court’s judgment.

¶3 I. Background

¶4 At trial, the State presented the testimony of Officers Baciu and Cruz. Their testimony

showed that at about 11:36 p.m. on February 19, 2021, the officers were patrolling in the area of

4513 West Chicago Avenue when they observed a 2010 Chrysler Town and Country being

driven with an obstructed view. After the officers activated their emergency equipment, Officer

Baciu observed defendant, sitting in the front passenger seat, “reach down towards the middle of

the floor board.” Officer Cruz similarly testified that “defendant made a motion towards the

middle floorboard.”

¶5 Once the Chrysler was curbed, the officers spoke to its occupants and smelled alcohol. In

addition, Officer Baciu saw two cups in the cup holders. As defendant stepped out of the vehicle

per the officers’ request, they observed that his pants were undone, as though he was trying to

conceal or discard something. The officers then searched the car for alcohol. While Officer Baciu

did not recall if any was found, the officers did recover a SA1 Springfield XD-9 millimeter semi-

automatic pistol. Officer Baciu testified that the gun was found “[a]pproximately where

[defendant] was reaching in between the driver's seat and passenger's seat under a removable

object.” Moreover, the pistol was in defendant’s immediate area and was easily accessible to

him. When asked if he had a firearm owners identification card or a CCL, defendant responded

that he did not. The Chrysler was not registered to defendant and the officers did not know

whether fingerprints were found on the firearm.

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¶6 The trial court found defendant guilty of unlawful use of a weapon. While the state of

defendant’s pants did not sway the court, it noted that defendant made a furtive movement after

emergency equipment was activated and a firearm was subsequently recovered from that

location. The court then sentenced defendant to 30 days in prison.

¶7 II. Analysis

¶8 On appeal, defendant asserts that the evidence was insufficient to prove that he

constructively possessed the firearm.

¶9 In reviewing a challenge to the sufficiency of the evidence, the question is whether, after

viewing the evidence in the light most favorable to the State, any rational tier of fact could have

found the elements of the crime proven beyond a reasonable doubt. People v. Cline,

. This is true even where the evidence is circumstantial. People v. Smith,

. Additionally, we must draw all reasonable inferences in favor of the

State (Cline,

) and must not substitute the trier of fact’s credibility

judgments with our own (Smith,

). We will not reverse the trial

court’s judgment unless the evidence is so improbable, unreasonable or unsatisfactory as to leave

a reasonable doubt of the defendant’s guilt. People v. Jones,

.

¶ 10 Section 24–1(a)(10)(iv) states, in pertinent part, that a person commits unlawful use of a

weapon “when he knowingly *** [c]arries or possesses on or about his or her person, upon any

public street, *** any pistol ***, except that this subsection (a)(10) does not apply to or affect

transportation of weapons that *** are carried or possessed in accordance with the Firearm

Concealed Carry Act by a person who has been issued a currently valid license under the Firearm

Concealed Carry Act.” 720 ILCS 5/24-1(a)(10)(iv) (West 2020). Thus, the State was required to

prove that defendant knowingly possessed the pistol recovered from the Chrysler.

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¶ 11 A defendant’s knowing possession of contraband may be actual or constructive. Jones,

. To demonstrate constructive possession, the prosecution must

prove that the defendant knew that the weapon was present and exercised immediate, exclusive

control over the area where the weapon was found. People v. Wise,

; see

also People v. Givens,

(2010) (finding that the presence of other individuals

does not diminish the defendant’s exclusive dominion and control). Here, defendant solely

asserts that the State failed to demonstrate he knew that the pistol was in the vehicle.

¶ 12 A defendant’s presence in a vehicle is not alone sufficient evidence that he knows a

weapon is therein. People v. Bailey,

(2002). In addition, defendant’s

control over and access to an area does not alone show he knew that contraband was present.

People v. Macias,

(1998). That being said, constructive possession,

including the element of knowledge, is usually demonstrated by circumstantial evidence, as

direct proof is rarely available. Givens,

. Factors relevant to the defendant’s

knowledge include (1) whether the weapon was visible to the defendant; (2) the time period in

which the defendant would have been able to observe the weapon; (3) whether the defendant

made any gestures indicating an effort to hide or retrieve the weapon; (4) the weapon’s size; and

(5) whether the defendant had a possessory or ownership interest in the vehicle or the weapon

found inside. Bailey,

. Knowledge may be established by the

defendant’s statements or conduct from which the trier of fact can infer that he knew the weapon

was present. Smith,

. Generally, knowledge and possession are

factual questions to be resolved by the trier of fact.

¶ 13 Here, as defendant concedes, the officers testified that after they activated their

emergency equipment, they observed defendant make a movement toward the floorboard.

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Testimony also showed that the pistol was subsequently found in that area. Furthermore, the trial

court found the officers’ testimony to be credible. While defendant argues that defendant reacted

to the officers’ presence in the manner of a person holding a cup of alcohol, this ignores that the

alcohol was in the cupholders, not down toward the floor. The evidence of defendant’s furtive

movement coupled with the subsequent recovery of the pistol was sufficient evidence, if not

overwhelming evidence, to permit the trial court to find that he had been concealing the pistol

and, thus, knew of its presence.

¶ 14 Citing other factors relevant to knowledge, defendant argues that the pistol was not

visible when found, that it was apparently small, that he had no possessory interest in the vehicle

and that no fingerprint evidence showed he had handled the pistol. Given defendant’s furtive

movement, however, the State was not required to establish those factors. Cf. Bailey,

(finding no evidence showed the defendant knew that a weapon was under his

seat where, among other things, the officers did not testify to seeing the defendant make any

gestures suggesting he was attempting to hide or retrieve the weapon); Macias,

(finding the State did not establish the defendant’s knowledge of contraband where,

among other things, the police did not see the defendant enter the bedroom where contraband

was recovered, the defendant testified he had not been in that bedroom and no fingerprints linked

him to the premises or the contraband). Defendant has cited no authority setting a minimum

number of factors required for a trial court to find a defendant had the requisite knowledge.

Accordingly, the evidence of defendant’s knowledge was sufficient.

¶ 15 Next, defendant asserts that the State failed to establish the corpus delicti because no

evidence corroborated his admission that he had not been issued a valid CCL. We disagree.

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¶ 16 The proof necessary to establish an offense requires the State to demonstrate the corpus

delicti, i.e., that a crime occurred. People v. King,

. Generally, the State

cannot establish this through the defendant’s confession or out-of-court statement alone. People

v. Hannah,

. This rule arose from the historical mistrust of out-

of-court confessions. People v. Lara,

.

¶ 17 When a confession is part of the corpus delicti, the State must present additional,

independent evidence corroborating that confession. People v. Sanchez,

. Yet, it is only necessary that such independent evidence tend to demonstrate the

commission of a crime. Lara,

. Only some consistency between the

defendant’s admission and the independent corroboration is required. Smith

. The independent evidence need not be so strong that it alone proves the

commission of the offense beyond a reasonable doubt. Sanchez,

.

It is also unnecessary for the independent evidence to disprove the possibility that no crime

occurred. Lara,

. In short, “the corpus delicti rule requires only that

the corroborating evidence correspond with the circumstances recited in the confession and tend

to connect the defendant with the crime. The independent evidence need not precisely align with

the details of the confession on each element of the charged offense, or indeed to any particular

element of the charged offense.” Id. ¶ 51.

¶ 18 Here, defendant told the officers that he did not have a CCL. In addition, the trial court

found, based on the officers’ testimony, that defendant made a furtive movement to conceal the

pistol after the officers activated their emergency equipment. The court was entitled to find that

an individual with a CCL would not have behaved in this manner. Accordingly, independent

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evidence that defendant made a furtive movement corroborated his statement that he lacked a

CCL, establishing the corpus delicti.

¶ 19 Finally, to the extent that defendant’s opening brief asserts in a conclusory fashion that

his conviction violates the second amendment, he has failed to develop a cohesive argument in

that regard. Accordingly, that contention is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020);

People v. Oglesby,

(stating that the appellate court is entitled to

clearly defined issues and cohesive arguments).

¶ 20 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 21 Affirmed.

¶ 22 JUSTICE PUCINSKI, dissenting:

¶ 23 Where a man’s liberty interest is at stake the least the state could do is get a qualified

exhibit entered as evidence or person to testify that the defendant did not possess a Concealed

Carry License. Taking shortcuts makes the case look slap-dash and is inconsistent with our

commitment to proof beyond a reasonable doubt. I would reverse.

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