People v. Thrasher

Filed 6/27/08 NO. 4-07-0563

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
RONALD W. THRASHER, ) No. 06CF266
Defendant-Appellant. )
) Honorable
) Kevin P. Fitzgerald,
) Judge Presiding.
_________________________________________________________________

JUSTICE MYERSCOUGH delivered the opinion of the court:

On July 21, 2006, a jury found defendant, Ronald W.

Thrasher, guilty of unlawful possession of a firearm by a con-

victed felon (720 ILCS 5/24-1.1(a) (West 2006)). In September

2006, the trial court sentenced defendant to 11 years' imprison-

ment. Defendant appeals, arguing that the trial court (1)

committed reversible error when it instructed the jury that the

State did not need to prove that the charged offense occurred on

the date specified in the information; and (2) abused its discre-

tion in fashioning an 11-year sentence. We affirm.

I. BACKGROUND

On March 10, 2006, the State charged defendant with

unlawful possession of a firearm by a convicted felon. The

information stated in pertinent part:

"[O]n or about [the] []9th day of March[]

2006[,] at Bloomington, *** [defendant] com-
 mitted the offense of unlawful possession of

a firearm by a convicted felon in that he, or

one for whose conduct he was legally respon-

sible, knowingly and while on mandatory su-

pervised release, possessed a handgun on or

about his person after having previously

[been convicted of a felony]."

The information did not name the specific location where the

alleged offense occurred other than simply, "at Bloomington."

However, this case came to the State's attention following a

dispute in the parking lot outside Winner's Lounge in Bloomingto-

n, Illinois, during the late-night hours of March 8, and the

early-morning hours of March 9, 2006 (hereinafter the Lounge

incident). On this night, defendant was at the Lounge with

several friends: Jennifer Bains Talamantez (defendant's girl-

friend at the time), Erron Gilmer, and two other women who were

friends of Talamantez.

The State later filed an indictment charging defendant

in the same terms as the information, which was later amended by

interlineation.

In opening argument, the State laid out its theory of

the case. The State would attempt to prove that, on the night of

the Lounge incident, Gilmer got into a dispute at the Lounge.

Bouncers at the Lounge asked defendant's group to leave. Defen-

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dant and Gilmer then went back to defendant's apartment to

retrieve defendant's gun, while the women waited in the car. The

group then drove back to a gas station near the Lounge. Defen-

dant kept his gun on his person until defendant and Gilmer exited

the car at the gas station near the Lounge. Defendant then gave

the gun to Gilmer, who performed the shooting.

The State believed Talamantez would testify that when

defendant and Gilmer returned from defendant's apartment,

Talamantez saw defendant's gun tucked in defendant's waistband,

the same gun she had seen in defendant's apartment on previous

occasions. The State believed that defendant's neighbor, Heather

Jenkins, would testify that she too had seen defendant keep a gun

in his apartment, a gun which matched the physical description of

the gun used in the Lounge incident.

At trial, Talamantez testified to the circumstances

under which the Lounge incident arose. Apparently, two women who

were part of another group at the Lounge approached Gilmer and

accused him of sexually assaulting one of their friends. In

response, Gilmer turned to Talamantez and said, "[I]f something

happen[s,] do you have my back?" Talamantez told Gilmer that she

would support him. A man then approached Gilmer and challenged

him regarding the alleged sexual assault. Gilmer punched the

man, and a fight ensued. Defendant tried to break up the fight.

Defendant's group then left the bar, but other customers followed

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the group and began to throw bottles at Talamantez's car.

Defendant's group got in the car and drove away.

According to Talamantez, defendant then turned to

Gilmer and asked him what he wanted to do. Gilmer responded in

an upset and angry manner, "You know what I want to do." The

group went to defendant's apartment. Defendant and Gilmer went

inside defendant's apartment while Talamantez and the other two

women waited outside. When defendant and Gilmer returned to the

car, they told Talamantez to drive back to the Lounge. Contrary

to what the State indicated Talamantez's testimony would be,

Talamantez testified that she did not see either man with a gun.

Talamantez dropped defendant and Gilmer off at Huck's gas station

near the Lounge. Defendant gave Talamantez his cell phone so

that they could maintain contact and directed her to drive the

other two women home and then come back to Huck's. When

Talamantez returned to Huck's, she saw police cars in the Lounge

parking lot. She quickly learned that a man shot a gun during a

dispute. Gilmer was the likely shooter.

During cross-examination, Talamantez admitted that she

had previously told police that she saw that defendant had a gun

in his waistband when she dropped him off at Huck's. Also during

cross-examination, Talamantez admitted discussing the shooting at

the scene with witnesses from the Lounge, whom she told that she

had cleaned defendant's gun in the past. However, Talamantez

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claimed that both her two videotaped and audiotaped statements to

police and her statements to witnesses at the scene regarding her

knowledge that defendant owned the gun that had been used in the

shooting had been lies. She claimed the police pressured her

into making her statements on the videotape. She had no explana-

tion for her statements about the gun to witnesses at the scene.

The two audiotaped statements were admitted into evidenced and

shown to the jury.

The State later called defendant's neighbor, Heather

Jenkins, to corroborate Talamantez's initial version of events.

Jenkins testified that she had been in defendant's apartment on

several occasions during February and March 2006. On one of

those occasions, Jenkins saw defendant with a gun while defendant

was sitting on his couch. Defendant was not touching the gun;

the gun was merely next to defendant on the couch. Jenkins was

able to describe the gun, noting that it was black with a brown

handle. However, Jenkins did not provide, nor did the State ask

her to provide, the exact date that she saw defendant with the

gun.

Defendant testified on his own behalf, disputing the

State's theory that he retrieved the gun from his apartment

before giving it to Gilmer and returning to the Lounge. Accord-

ing to defendant, Gilmer went into the apartment to gather some

personal belongings because Gilmer had decided against spending

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the night as originally planned. Defendant took some cocaine,

which he planned to sell at Huck's in a drug deal he had just

recently arranged. Talamantez dropped off defendant and Gilmore

at Huck's for the drug deal. Once at Huck's, Gilmer seemed as

though he still wanted revenge against the man at the Lounge and

began walking toward the Lounge. Defendant followed after him.

Defendant saw Gilmer pull a gun out of his waistband. At that

point, defendant threw his hands up in the air and said, "What

are you going to do, shoot somebody?" Defendant did not want to

be involved in a shooting, so he turned around and began walking

back to Huck's. As he was walking back to Huck's, he heard two

gunshots. Defendant then called Talamantez on her cell phone and

asked her to come and pick him up.

Defendant testified that he did not know Gilmer had a

gun until Gilmer pulled it out of his waistband on the way back

to the Lounge. During the investigation, defendant told police

he did not own a gun. Defendant testified that the gun Talamant-

ez told the police she had seen did not belong to him. Likewise,

defendant testified that the gun Jenkins had seen earlier in his

apartment did not belong to him.

In closing, the State argued:

"[In] the early morning hours of March

9, 2006[,] a firearm was used in a shooting

at Winner's Lounge here in Bloomington, McLe-

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an County. At the time that that weapon was

used there was an individual that fired that

weapon by the name of Erron Gilmer.

But how did that weapon get into Mr.

Gilmer's hands? I submit to you, ladies and

gentleman, when you look at the other evi-

dence that was presented in this case, and

that is the evidence of Jennifer Bains

[Talamantez] and also Heather Jenkins, we

know, we can now see how that weapon got into

the possession of Mr. Gilmer and it was given

to him by this individual, by the defendant,

Ron Thrasher.

Heather Jenkins had no connection with

this case around the incident that happened

on March 9th. She was called in here, ladies

and gentleman, because quite frankly she

corroborated some of the statements that were

given [to police investigators] by Jennifer

Bains [Talamantez]. Heather was a neighbor

of the defendant and had been over to his

residence in the past and seen, while at his

residence, *** a black handgun with a brown

handle. She saw it in his possession. She

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 saw it on the couch stuck down in the cush-

ion. That evidence was brought to you ***

[as] corroboration of [the police] statement

by Jennifer Bains [Talamantez]."

During jury deliberations, the jury sent the trial

judge a note:

"The jury would like to clarify a point--is

it necessary for us to determine proof of

possession on the actual date March 8, 9--or

can we consider whether there is proof of

possession/ownership at any point in time?"

The State proposed that the trial court give Illinois

Pattern Jury Instruction, Criminal, No. 3.01 (4th ed. 2000)

(Hereinafter IPI Criminal 4th) to the jury, which states:

"3.01 Date of Offense Charged.

The [(indictment) (information) (com-

plaint)] states that the offense charged was

committed [(on or about)] [date]. If you

find the offense charged was committed, the

State is not required to prove that it was

committed on the particular date charged."

Over the objection of defense counsel, the trial court provided

the jury with the following instruction, in the form of IPI

Criminal 4th No. 3.01:

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 "The indictment states that the offense

charged was committed on or about March 9,

2006. If you find the offense charged was

committed, the State is not required to prove

that it was committed on the particular date

charged."

The jury found defendant guilty of possession of a

firearm by a convicted felon, and the court sentenced defendant,

a Class X felon, as stated. This appeal followed.

II. ANALYSIS

A. The Trial Court Properly Gave
IPI Criminal 4th No. 3.01

Generally, the State is "not required to prove that a

crime was committed on a particular date, unless the allegation

of a particular time is an essential ingredient of the offense or

a statute[-]of[-]limitations question is involved." People v.

Suter, 292 Ill. App. 3d 358, 363, 685 N.E.2d 1023, 1027 (1997).

"Where the proof at trial [establishes or] suggests the offense

occurred on a date other than the one charged, IPI Criminal 3d

No. 3.01 serves to inform the jury that the difference in dates

is not material." Suter, 292 Ill. App. 3d at 363, 685 N.E.2d at

1027. Giving IPI Criminal 4th No. 3.01 prevents a defendant from

arguing that he should be acquitted simply because of a nonfatal

variance between the charging information and the proof at trial.

Suter, 292 Ill. App. 3d at 363, 685 N.E.2d at 1027. However,

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giving IPI Criminal 4th No. 3.01 may result in reversible error

where (1) "inconsistencies between the date charged in the

indictment and the evidence presented at trial are so great that

the defendant is misled in presenting his defense"; or (2) the

defendant "presents an alibi for the time alleged in the indict-

ment and is thereby prejudiced because he failed to gather

evidence and witnesses for the time actually proved by the

State." Suter, 292 Ill. App. 3d at 364, 685 N.E.2d at 1028.

Defendant argues that the trial court erred when it

responded to the jury's question by providing IPI Criminal 4th

No. 3.01. Defendant asserts that the inconsistency between the

March 9 date charged in the information and the evidence pre-

sented at trial through Heather Jenkins' testimony that defendant

possessed a gun at some point in February or March 2006 misled

defendant in presenting his defense. Defendant states that he

was charged with "a specific incident of possession of a weapon,

based on the incident that occurred at Winner's Lounge in the

early hours of March 9, 2006." Defendant essentially argues that

while the State did not need to prove that the possession inci-

dent at the Lounge happened on March 9, 2006, it did need to

prove that the possession incident at the Lounge happened,

because that was the possession incident that defendant had

prepared to defend against based on the information as charged.

Defendant contends that he was not prepared to defend against

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evidence that, at "some undisclosed time" in February or March

2006, Jenkins saw him in possession of a gun in his apartment.

We disagree. In the instant case, the State's evidence

did not prejudice defendant or mislead him in preparing his

defense. Both the information and superseding indictment al-

leged:

"[O]n or about [the] []9th day of March[]

2006[,] at Bloomington, *** [defendant] com-

mitted the offense of unlawful possession of

a firearm by a convicted felon in that he, or

one for whose conduct he was legally respon-

sible, knowingly and while on mandatory su-

pervised release, possessed a handgun on or

about his person after having previously

[been convicted of a felony]."

Defendant was charged with possession of a weapon by a felon on

or about March 9, 2006. He was not charged in the information or

later indictment with possession at any specific location.

Evidence was presented that he possessed a gun between January

and March 2006. Defendant's girlfriend, Jennifer Bains

Talamantez, testified she had seen defendant with either a 9-

millimeter or 22-caliber pistol automatic handgun between January

and March 2006 but that he did not possess a gun on March 9,

2006. Talamantez in an audiotaped and videotaped statement

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presented to the jury told police on March 9, 2006, that she saw

defendant with a gun when he got out of her car at the gas

station following the fight at the bar during the late-night and

early-morning hours of March 8 and 9, 2006. Talamantez's

audiotaped and videotaped statement on July 10, 2006, corrobo-

rated her March 9, 2006, statement that defendant had a black

handgun with a brown handle stuck in his waistband when he got

out of the car at Huck's on March 9, 2006. At trial, Talamantez

admitted making that statement but claimed police had pressured

her to do so. Talamantez also admitted defendant asked her to

lie to the police about seeing the gun and not to testify against

him at trial.

Heather Jenkins, defendant's neighbor, also testified

to seeing defendant in possession of a handgun during visits to

clean his apartment in February and March 2006. Jenkins was

unable to provide an exact date for these possessions.

Presented with Talamantez's denial about defendant's

possession of the gun, her explanation for some of those impli-

cating statements but not others and her explanation therefor,

the tapes, and Jenkins's testimony, the jury had to (1) determine

the witnesses' credibility, (2) determine the weight to be given

to their testimony, (3) resolve conflicts in the evidence, and

(4) draw reasonable inferences from the evidence. People v.

Billups, 318 Ill. App. 3d 948, 954, 742 N.E.2d 1261, 1266-67

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(2001).

Because of Talamantez's numerous and contradictory

statements about defendant's possession of the gun, a variance

existed between the date in the indictment and the evidence

presented at trial as to when the offense was committed. There-

fore, the giving of IPI Criminal 4th No. 3.01 was proper.

Moreover, the giving of this instruction did not

mislead defendant in preparing his defense. According to defen-

dant's testimony at trial, his defense was not that he did not

possess the gun on or about March 9, 2006; his defense was he did

not have a gun at all at any time. Throughout defendant's

testimony, he persisted that he did not own a gun. Defendant

testified he did not have a gun on March 8 or 9, 2006. When

asked about the gun Jenkins saw at his apartment in February or

March, he responded that he "didn't see the same gun that she

saw. *** I don't own a gun." When asked about the gun Talamantez

saw at his apartment between January to March, he responded it

was not his gun. Therefore, defendant was not misled into

preparing a defense only for March 8 and 9, 2006, because defen-

dant actually presented a defense to counter the State's evidence

of defendant's possession of a gun at any time in January,

February, or March 2006.

The trial court's giving of IPI Criminal 4th No. 3.01

was proper in light of the variance between the date in the

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indictment and the evidence presented at trial. Contrary to

defendant's assertion on appeal, this instruction did not preju-

dice or mislead him in preparing his defense, as he

defended against all the State's evidence of his possession of a

gun in January, February, and March 2006.

The State's theory of the case was that defendant had

possessed the 9 millimeter in question for some months before the

bar fight and provided it to the codefendant, who used it at the

bar fight. The State pursued its case on a direct-liability

theory as well as an accountability theory in the information,

the later indictment, and the jury instructions: "the defendant,

or one for whose conduct he is legally responsible, knowingly

possessed a firearm." At the jury-instruction conference, the

State argued accountability.

"[ASSISTANT STATE'S ATTORNEY]: It is a

possession, your Honor, with--under account-

ability. Don't have to go to the shooting

aspect of it. Mr. Gilmer possessed a gun at

Winner's, but he possessed it at Winner's

because this defendant gave it to him."

Sufficient evidence of defendant's aiding and abetting codefenda-

nt Gilmer was shown. That Talamantez, defendant's girlfriend,

drove them from the bar to the apartment and back again is

undisputed. That defendant went with Gilmer to the scene of the

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shooting is also undisputed.

But defendant's attorney objected to the accountability

instruction on the ground that no evidence supported accountabil-

ity, and the trial court erroneously sustained that objection, in

essence implying defendant had to have given codefendant Gilmer

the gun that night. "THE COURT: And if so then the defendant had

to have possessed it and it's direct." Defendant simply did not

have to possess the gun that night, because that is not how

defendant was charged. Regardless, the jury had some question on

this issue. The jury had the jury instructions, no doubt dis-

cussing the elements of the crime. The jury addressed

Talamantez's credibility and her explanation for her first

inculpation of defendant and asked the logical questions: does it

matter when defendant possessed the gun? The answer: no, it did

not matter. Clearly, codefendant possessed the gun on March 9,

2006. Direct evidence, Talamantez's tape, established defendant

provided it on that date. Talamantez explained her statement as

"pressured," but circumstantial evidence or testimony established

defendant gave it to codefendant Gilmer that night or shortly

before, merely by his prior possessions in recent days. The

evidence was sufficient here to convict defendant of possession

of a gun on either a direct or accountability possession. Simply

because defense counsel led the court and jury astray is not

reason to reverse. Defense counsel's theory was to confuse this

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issue.

"[Codefendant] Erron acted on his own

inside the first time; acted on his own on

the return. Grown man. He is responsible

for himself.

[Defendant] acted on his own. Grown

man. He is responsible for himself.

The People have not proven to you beyond

a reasonable doubt that [defendant] possessed

any firearm. They are asking you to guess or

to fit in these pieces of this puzzle and the

proposition that I believe, or the theory,

the supposition, the inference he is asking

you to draw from the testimony you heard,

don't believe it is supported by the infer-

ence, excuse me[,] by the evidence or by

reasonable inference from the evidence."

Finally, the burden-of-proof jury instruction contains

no date of the possession or location of the possession. Clearl-

y, the State did not have the burden of proving the exact date of

the offense, and the trial court correctly gave IPI Criminal 4th

No. 3.01.

B. The Trial Court's Sentence of 11 Years' Imprisonment
Was Not an Abuse of Discretion

Defendant argues his remorse, rehabilitative potential,

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and the lack of violence in his background support a finding the

trial court abused its discretion by sentencing defendant to 11

years' imprisonment.

A trial court is given great deference when making

sentencing decisions, and if a sentence falls within the statu-

tory limits, it will not be disturbed on review unless the trial

court abused its discretion and the sentence was manifestly

disproportionate to the nature of the case. People v. Grace, 365

Ill. App. 3d 508, 512, 849 N.E.2d 1090, 1093-94 (2006). "A

defendant's character, prior criminal history, mental capacity,

background, age, and future dangerousness are just a few of the

factors a trier of fact may consider in fixing the appropriate

punishment." People v. Thompson, 222 Ill. 2d 1, 35, 853 N.E.2d

378, 398 (2006).

Defendant was convicted of a Class 2 felony, but due to

his criminal history, he was sentenced as a Class X offender.

The sentencing range for Class X offenders is 6 to 30 years. 730

ILCS 5/5-8-1(a)(3) (West 2006).

According to the presentence investigation report, this

was defendant's ninth felony conviction. Previous convictions

were for burglary, residential burglary, possession of controlled

substance with intent to deliver, possession of a controlled

substance, obstructing justice, driving under the influence, and

retail theft. Further, as the State noted at sentencing, this

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was defendant's second conviction for illegal possession of a

weapon by a felon, and defendant was on mandatory supervised

release (MSR) when he committed the instant offense. Defendant's

presentence investigation report also chronicles defendant's

repeated failure to comply with probation and MSR terms and

conditions.

As defendant stated, he did express his remorse to the

trial court during sentencing. The court found his remarks to be

sincere but noted the test of his sincerity will be when he is

released from prison.

"The system has tried over and over

again to impress upon you that if you commit

crimes and do things that are dangerous or

against the law[,] that there will be harsh

consequences[,] and it hasn't seemed to get

through. And I can sit here today and believe

with all my heart everything that you have

written in this letter to me and still have

significant doubt based on your actions, not

your words, whether any of this is going to

mean anything when you get out [of prison]

again because it takes, it takes having a

firm conviction, a mission in life."

Despite defendant's remorse and possible rehabilita-

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tion, the trial court found defendant's criminal history war-

ranted an 11-year sentence. This sentence was on the low end of

the 6- to 30-year range defendant faced for a Class X sentence,

and it did not result in an abuse of discretion.

III. CONCLUSION

Therefore, we affirm the trial court. As a part of our

judgment, we award the State its $50 statutory assessment against

defendant as costs of this appeal.

Affirmed.

McCULLOUGH, J., concurs.

COOK, J., dissents.

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 JUDGE COOK, dissenting:

I respectfully dissent and would reverse and remand.

The State's consistent theory in this case was that

defendant transferred the gun to Gilmer on the night of the

Lounge incident. The State's evidence at trial centered on that

incident. In fact, the State conceded during its closing argu-

ment that "Heather Jenkins had no connection with this case

around the incident that happened on March 9th." The jury, on

its own, came up with the theory that defendant could be con-

victed based on a prior, uneventful possession in the apartment.

The State's suggestion that the trial court answer the jury's

question in this case with IPI Criminal 4th No. 3.01 adopts a

completely different approach taken after the close of evidence.

It appears the jury convicted defendant based on the uneventful

possession in the apartment at some indefinite time before the

shooting, and then the court sentenced defendant based on the

violent circumstances surrounding providing Gilmer with a firearm

to be used in a bar fight.

The State is not required to prove that a crime was

committed on a particular date. In this case, it makes no

difference whether the crime was committed during the late

evening hours of March 8 or the early morning hours of March 9.

However, giving IPI Criminal 4th No. 3.01 may result in revers-

ible error "where [the] inconsistencies between the date charged

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in the indictment and the evidence presented at trial are so

great that the defendant is misled in presenting his defense."

Suter, 292 Ill. App. 3d at 364, 685 N.E.2d at 1028. If defendant

had known he would have to defend against something other than

the Lounge incident, perhaps he could have brought in witnesses

to establish that the firearm in the apartment in January or

February was not his. Other than his on-the-spot denial that the

gun was not his, defendant was unable to prepare a defense

against the accusation of possession of a gun in the weeks and

months prior to the Lounge incident.

"Due process requires that an indictment or information

apprise defendant of the precise offense charged with sufficient

specificity to enable him to prepare his defense and allow the

pleading of the judgment as a bar to future prosecution of the

same conduct." People v. Rhoden, 253 Ill. App. 3d 805, 810, 625

N.E.2d 940, 944 (1993). If defendant had been acquitted of

possession of a weapon at the Lounge on March 8 or 9, could he

have been later charged with possession at some other time and

place? It seems clear that he could have been. Defendant's

rights were violated in this case when the trial court allowed

the jury to ignore the charge which had been filed.

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