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Appellate Court Date: 2017.04.24
09:34:39 -05'00'
People v. Faulkner, 2017 IL App (1st) 132884
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DORIAN FAULKNER, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1-13-2884
Filed February 10, 2017
Rehearing denied March 28, 2017
Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-24639; the
Review Hon. Thomas V. Gainer, Judge, presiding.
Judgment Affirmed.
Counsel on Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and John E. Nowak, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Connors and Harris concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the circuit court of Cook County found defendant Dorian Faulkner
guilty of one count of being an armed habitual criminal (AHC) and two counts of unlawful use
or possession of a weapon by a felon (UUWF) and sentenced him to six years of imprisonment.
On direct appeal, he argues that (1) his AHC conviction should be reversed because it was
predicated on a prior conviction for aggravated unlawful use of a weapon (AUUW) that was
based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116,
and (2) his AHC and UUWF convictions should be reversed because the State failed to prove
beyond a reasonable doubt that he had constructive possession of the firearm and ammunition
recovered by the police. On August 31, 2015, we issued an opinion affirming the UUWF
convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st) 132884.
In September 2016, our supreme court issued a supervisory order directing us to reconsider
that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We now affirm
the convictions for both AHC as well as UUWF.
¶2 BACKGROUND
¶3 On July 14, 2012, Chicago police officers conducted a compliance check on the defendant,
who was released on parole1 for an unrelated crime. At the defendant’s residence at 5210
South Morgan Street, the police recovered a .223-caliber assault rifle and ammunition from the
attic, after which they arrested the defendant. On July 26, 2012, the defendant was charged
with one count of being an AHC (count I) and two counts of UUWF (counts II and III). The
AHC charge was predicated upon his two prior convictions for AUUW under case No. 08 CR
0981001 and manufacture/delivery of a controlled substance under case No. 09 CR 0948301.
¶4 On July 16, 2013, a bench trial commenced, during which the State presented two
witnesses. Parole Officer Jack Tweedle testified that at about 8:30 a.m. on July 14, 2012, he
and Officer Jim Hollenback, with the assistance of four other officers, conducted a parole
compliance check at the defendant’s residence. He described the residence as a two-story,
single-family home. Officer Tweedle testified that the purpose of the compliance check was to
verify that the defendant was complying with the conditions of his parole contract. The officers
knocked on the door multiple times, and the defendant took about five minutes to answer it.
The defendant was alone at the time he answered the door. After entering the residence, Officer
Tweedle found about three grams of cannabis in plain view on a coffee table in the living room.
During the compliance check, the defendant remained in the living room with Officer
Hollenback. Officer Tweedle described the layout of the residence as having a small hallway
leading from the front door to the living room area, a bedroom, a kitchen, and an entry leading
to an enclosed back porch from the rear of the kitchen. Stairs led to the attic via an enclosed
back porch. Neither the entry leading to the enclosed back porch nor the attic had a door.
Officer Tweedle went upstairs and walked through the entire attic, where he found a loaded
.223-caliber assault rifle. A box of .223-caliber bullets was also found. Officer Tweedle
1
The defendant was paroled on the unrelated crime on April 17, 2012. The evidence shows that as a
condition of his release, he was prohibited from possessing a firearm or other dangerous weapons, and
was subject to the search of his person, property and residence.
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testified that nothing obscured his view of the rifle. The police officers confiscated the assault
rifle and the box of ammunition.
¶5 Officer Cary Pozulp2 testified that he assisted Officer Tweedle with the parole compliance
check. He stated that the officers entered the first floor of the South Morgan Street residence
after climbing a flight of exterior stairs. There was a flight of stairs leading from the first-floor
unit to the attic, which could be accessed by a “closed dwelling” through the kitchen. There
were no locks or doors barring entry from the first floor into the attic. Officer Pozulp met
Officer Tweedle in the attic, where he recovered a .223-caliber assault rifle near the entrance of
the attic. Officer Pozulp did not have to move anything to see the assault rifle, which was only
partially covered by a wooden board. The assault rifle was loaded with one round in the
chamber and had over 40 live rounds in the magazine. Officer Tweedle then alerted Officer
Pozulp to a nearby box of .223-caliber ammunition, which contained an additional 43 rounds
of ammunition. Officer Pozulp testified that, aside from the defendant and the police officers,
no one else was present in the first-floor unit or in the attic at the time of the compliance check.
He stated that the officers also recovered about three bags of cannabis from the living room.
The defendant was read his Miranda rights and taken into police custody. At the police station,
Officer Pozulp and Sergeant Dedore interviewed the defendant. When Officer Pozulp asked
the defendant about the assault rifle, he replied that “the hood’s crazy, we’re at war with these
GDs out here,” and that “I’m not worried about that, and my lawyer will handle this.” On
cross-examination, Officer Pozulp noted that, during police interrogation, the defendant
neither stated that the assault rifle belonged to him nor that it was used “for protection.”
However, Officer Pozulp answered affirmatively when defense counsel asked whether the
defendant had told the police to “go ahead and charge me with that gun. My lawyer got this.”
¶6 At the close of the State’s case-in-chief, the State, without objection from the defense,
entered into evidence certified copies of the defendant’s prior felony convictions for AUUW
(case No. 08 CR 0981001) and manufacture/delivery of a controlled substance (case No. 09
CR 0948301). These two prior felony convictions were offered as proof of the requisite
predicate offenses supporting the defendant’s AHC charge. After the State rested, the trial
court denied a defense motion for a directed finding.
¶7 Patricia Faulkner (Patricia) testified as the sole witness for the defense. She testified that
the defendant is her great-nephew and that she had lived at the 5210 South Morgan Street
residence since about 1980. Patricia stated that her siblings, Loretta Faulkner (Loretta) and
Willie Faulkner (Willie), owned the building. Patricia lived in the basement, while the
defendant lived in the first-floor unit. The attic was accessible from the enclosed back porch
stairs of the first-floor unit, and the back porch could be accessed from the backyard. She stated
that before the defendant moved into the residence in April 2012, other family members
brought furniture and items into the apartment and also “tried to clear some things out to make
the space better for him.” Some items in the attic were there before the defendant moved into
the residence. Much of the furniture inside the first-floor unit belonged to other family
members. Patricia testified that there were three copies of the key to the residence, which were
held by her and her siblings, Loretta and Willie. Loretta’s key, however, was not “cut properly”
and she no longer possessed it. At trial, Patricia also identified numerous bills and mailings that
were addressed to different family members at the 5210 South Morgan Street location. She
2
It is unclear whether Officer Pozulp’s first name is spelled correctly in the transcript.
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testified that she did not see the defendant bring a gun into the home in April 2012, nor did he
ever tell her that he had a gun. She also never observed anyone else bring a gun into the home
between April 2012 and July 2012. On cross-examination, Patricia stated that, at the time the
defendant lived in the home, there was no door separating the attic stairs from the attic.
However, the door separating the enclosed back porch from the backyard had a lock on it. Both
she and the defendant had physical access to the attic. Before the defendant moved in, other
family members had lived there from time to time, but the defendant was the only person living
in the first-floor unit at the time of his arrest in the instant case. Patricia stated that she was not
aware that there was a .223-caliber assault rifle and ammunition in the attic. In order to access
the attic from the basement unit where Patricia lived, she would have had to walk through the
laundry room next to her apartment and walk up the back stairs.
¶8 Following closing arguments, the trial court found the defendant guilty of all charges—one
count of AHC and two counts of UUWF:
“Okay. Yes, this is a case of [ ] constructive possession, and, yes, other people had
access to this building, according to the testimony of [Patricia], before the [d]efendant
moved in. There is evidence from [Patricia] that people were bringing things into that
[first-floor] unit *** to make the place habitable for the [d]efendant when he was
paroled in April of 2012.
There is also evidence that the [d]efendant’s grandfather, who is [Patricia]’s
brother, had a key. [Patricia] had a key, and [Patricia’s] sister, apparently, had a key at
some point, but that key didn’t work anymore—it wasn’t cut right—and it didn’t work.
There are—there’s access to the attic from the floor that the [d]efendant was living
on; there’s access to *** the attic from [Patricia’s] apartment. [Patricia] testified that
she had no idea that the gun was up there, so it clearly wasn’t her gun, even though she
had access to *** the attic.
I would note, for the record, that [Patricia] had a tremendous amount of difficulty
walking in and out of the courtroom. She was aided by a cart that is on wheels that also
has a seat which she sat in when she testified. She did not take the two or three steps up
to the witness stand, and I asked her to do that only because I thought it would be more
convenient for her.
In any event, even if she could access the attic herself, in her condition, she clearly
said it wasn’t her gun, though she had no idea it was up there.
The fact that her brother, the [d]efendant’s grandfather, had access doesn’t mean he
was up there. We need to look at what was up there. This is a very dangerous weapon
that was locked and loaded and ready to go.
Now, that alone would not be enough to prove that this [d]efendant, beyond a
reasonable doubt, possessed that weapon. But when you combine the fact that this thing
was up there, locked and loaded and ready to go, with the statement—and I believe the
police officers because if the police officers were making this up, the statement from
the police officers would have been, he admitted that that was his weapon, he kept it up
there for protection.
But that’s not what [Officer] Pozulp said. He said, this—the hood is crazy, we’re at
war with these GDs. Which is tantamount to saying, I need this thing for my protection.
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I believe the police officers, I believe that the State has proven that this [d]efendant
possessed that weapon beyond a reasonable doubt. There is a finding of guilty on all
charges.”
¶9 On August 27, 2013, the trial court denied the defendant’s motion for a new trial and
sentenced him to six years of imprisonment.3 On that same day, the defendant filed a timely
notice of appeal. In that appeal, the defendant challenged whether the State established the
necessary predicate offenses to support the AHC conviction beyond a reasonable doubt. The
basis of that argument was that his AHC conviction had been predicated, in part, on a prior
2008 conviction for AUUW for violating a statutory provision subsequently found to be
unconstitutional. See People v. Aguilar, 2013 IL 112116 (concluding that the Class 4 version
of the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violated the right
to bear arms under the second amendment of the United States Constitution). In turn, he argued
that the 2008 AUUW conviction was void and thus could not serve as one of the two predicate
convictions necessary to support the AHC offense. 4 Separately, the defendant’s appeal
challenged whether the State established beyond a reasonable doubt that the defendant
possessed the assault rifle and ammunition that were recovered from the attic by the police.
¶ 10 On August 31, 2015, we issued an opinion in which we agreed with the defendant that, in
light of Aguilar, the 2008 AUUW conviction could not support the subsequent AHC
conviction. We reasoned:
“Because the defendant’s prior conviction for AUUW was based on a statute that was
found to be unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as
a predicate offense for the defendant’s armed habitual criminal conviction in the instant
case. Thus, we find that the State was required to, but could not, prove beyond a
reasonable doubt an element of the offense of armed habitual criminal, where the
statute underlying the AUUW conviction was found to be unconstitutional and, thus,
the conviction cannot serve as a predicate offense for any charge.” Faulkner, 2015 IL
App (1st) 132884, ¶ 20.
Separately, our opinion affirmed the defendant’s UUWF convictions, as we agreed with the
State that it had offered sufficient evidence of the element of possession.
¶ 11 On September 28, 2016, our supreme court entered a supervisory order, directing us to
reconsider our judgment in light of People v. McFadden, 2016 IL 117424. Our August 31,
2015, opinion was withdrawn in light of the supervisory order. We then allowed the parties to
file supplemental briefing with respect to the impact of McFadden before issuing this opinion.
¶ 12 ANALYSIS
¶ 13 We note that we have jurisdiction because the defendant filed a timely notice of appeal.
¶ 14 We now review (1) whether, in light of our supreme court’s McFadden decision, the State
established the predicate offenses necessary to sustain a conviction for the AHC offense and
3
The trial court found that counts II and III merged with count I.
4
The parties do not dispute that the defendant’s prior 2009 felony conviction for
manufacture/delivery of a controlled substance (case No. 09 CR 0948301) satisfied one of two
qualifying offenses under the AHC statute. Rather, they disagree on whether his 2008 felony conviction
for AUUW satisfied the second of the two qualifying offenses under the statute.
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(2) whether the State offered sufficient evidence of constructive possession to support the
AHC and UUWF convictions.
¶ 15 We first conclude that, in light of our supreme court’s judgment in McFadden, the
defendant’s 2008 AUUW conviction could, in fact, serve as a predicate conviction for the
AHC conviction.
¶ 16 McFadden concerned a direct appeal from a UUWF conviction, based on the defendant’s
possession of a firearm at a time when he had previously been convicted of AUUW. As in this
case, the McFadden defendant’s prior AUUW conviction was based on the same AUUW
statutory provision found to be unconstitutional by our supreme court’s decision in Aguilar.
McFadden, 2016 IL 117424, ¶ 1. Similar to the defendant’s argument regarding his AHC
charge in this case, the defendant in McFadden argued that Aguilar’s holding prevented the
State’s use of the prior AUUW conviction to serve as a predicate offense for the UUWF
charge. Id. ¶ 8.
¶ 17 Our appellate court agreed with the McFadden defendant and vacated the defendant’s
UUWF conviction on the basis of Aguilar. People v. McFadden, 2014 IL App (1st) 102939.
However, our supreme court reversed, reasoning that the defendant’s felon status was
unaffected by Aguilar and that, unless the prior conviction was vacated, the prior felony
conviction precluded the defendant from legally possessing a firearm. McFadden, 2016 IL
117424, ¶ 31 (“Although Aguilar may provide a basis for vacating defendant’s prior 2002
AUUW conviction, Aguilar did not automatically overturn that judgment of conviction. Thus,
at the time defendant committed the UUW by a felon offense, defendant had a judgment of
conviction that had not been vacated and that made it unlawful for him to possess firearms.”).
¶ 18 Our supreme court in McFadden relied largely on the United States Supreme Court’s
holding “that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm
prior felony conviction could be used by the government as the predicate felony.” Id. ¶ 22
(citing Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis’s
reasoning in holding that an AUUW conviction subject to vacatur under Aguilar may still
serve as a predicate for a UUWF conviction.
¶ 19 The federal statute at issue in Lewis criminalized the possession of a firearm by “any
person who has been convicted by a court of the United States or of a State *** of a felony.”
(Internal quotation marks omitted.) 445 U.S. at 60. The defendant in Lewis had a prior felony
conviction from a state court case in which he was unrepresented by counsel. Id. at 57. The
Lewis court recognized that a conviction without the benefit of counsel was unconstitutional
under the sixth and fourteenth amendments. Id. at 59.
¶ 20 Despite the constitutional infirmity of the prior conviction, the United States Supreme
Court nonetheless held that the prior felony subjected the defendant to liability under the
felon-in-possession statute. The court reasoned that “Nothing on the face of the statute
suggests a congressional intent to limit its coverage to persons [whose convictions are not
subject to collateral attack]” and that “its plain meaning is that the fact of a felony conviction
imposes a firearm disability until the conviction is vacated or the felon is relieved of his
disability by some affirmative action.” (Internal quotation marks omitted.) Id. at 60-61.
¶ 21 The McFadden decision recognized that “under Lewis and its progeny, the fact of a felony
conviction without any intervening vacatur or other affirmative action to nullify the conviction
triggers the firearms disability.” McFadden, 2016 IL 117424, ¶ 24. McFadden applied the
reasoning from Lewis to the UUWF statute, which prohibited possession of a firearm, by any
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person “ ‘if the person has been convicted of a felony under the laws of this State or any other
jurisdiction.’ ” Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The McFadden court
reasoned that the UUWF statute “requires the State to prove only the defendant’s felon status”
and did not suggest “any intent to limit the language to only those persons whose prior felon
convictions are not later subject to vacatur.” Id. The McFadden court further reasoned that the
language of the UUWF statute, as with the federal statute at issue in Lewis, was “ ‘consistent
with the common-sense notion that a disability based upon one’s status as a convicted felon
should cease only when the conviction upon which that status depends has been vacated’ ” (id.
¶ 29 (quoting Lewis, 445 U.S. at 61 n.5)), and “it is immaterial whether the predicate
conviction ‘ultimately might turn out to be invalid for any reason.’ ” Id. (quoting Lewis, 445
U.S. at 62). McFadden concluded that “The UUW by a felon offense is a status offense, and
the General Assembly intended that a defendant must clear his felon status before obtaining a
firearm.” Id.
¶ 22 In his supplemental briefing, the defendant raises two arguments attempting to distinguish
McFadden from the present case, which concern the use of the same prior AUUW felony as a
predicate for the AHC offense. However, we find that our court has previously considered and
rejected these arguments in People v. Perkins, 2016 IL App (1st) 150889, which found
McFadden applied to sustain an AHC conviction premised on the same predicate AUUW
offense at issue.
¶ 23 First, the defendant contends that the holding of McFadden was limited to the UUWF
offense and does not apply to support a conviction for AHC based on the form of AUUW
invalidated by Aguilar. The defendant attempts to distinguish the offenses so as to categorize
UUWF as a “status”-based offense but AHC as a “conduct”-based offense. The defendant
argues that “[t]he UUWF statute at issue in McFadden merely requires proof of the
defendant’s felony status—based on any prior felony—to obtain a conviction.” See 720 ILCS
5/24-1.1(a) (West 2014) (prohibiting possession of a firearm by any person “if the person has
been convicted of a felony under the laws of this State or any other jurisdiction”). He argues
that this “generic ‘felon status’ principle” was the basis for McFadden’s holding “that a prior
conviction under an unconstitutional statute could serve as a predicate offense for UUWF.”
¶ 24 In contrast, the defendant argues, an AHC conviction requires the State to “present
evidence of at least two prior offenses from a carefully-considered list” that “represents the
entire universe of criminal behavior that the legislature deemed worthy of a Class X conviction
and sentence for ACH.” See 720 ILCS 5/24-1.7(a)(1)-(3) (West 2012).5 Thus, he argues that
the AHC statute does not create a “broad sweeping firearm disability” for any prior felony
conviction, as in the case of the UUWF statute in McFadden, or the federal felon-in-possession
statute at issue in Lewis. In his reply brief, he further attempts to distinguish the UUWF offense
5
The AHC statute provides, in pertinent part, the following:
“(a) 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 the following offenses:
(1) a forcible felony as defined in Section 2-8 of this Code;
(2) unlawful use of a weapon by a felon; aggravated unlawful use of a weapon; *** or
(3) any violation of the Illinois Controlled Substances Act or the Cannabis Control Act that
is punishable as a Class 3 felony or higher.” 720 ILCS 5/24-1.7(a) (West 2012).
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from the AHC offense by arguing that “AHC is a recidivist offense” and that “invalid prior
convictions cannot be used *** to prove the prior-felon element of a recidivist statute.” He thus
argues that “Lewis and McFadden are based on findings of legislative intent that do not apply
to the AHC statute.”
¶ 25 We reject the defendant’s attempts to distinguish McFadden as inapplicable to the AHC
offense. Notably, our court rejected a similar argument in People v. Perkins, 2016 IL App (1st)
150889, in which we held, pursuant to our supreme court’s decision in McFadden, that a prior
conviction for the form of AUUW invalidated by Aguilar may serve as a predicate for an AHC
conviction. In Perkins, the defendant asserted that McFadden’s reasoning was limited to the
offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any
convicted felon from possessing a firearm” whereas “the offense of armed habitual criminal
requires the State to prove that the defendant was convicted of specific enumerated offenses.”
Id. ¶ 6. The Perkins defendant thus argued that UUWF imposed a “status-based disability”
whereas the AHC conviction “imposes a conduct-based disability *** based on a defendant’s
commission of specific acts.” Id. The Perkins defendant proceeded to argue that “because the
conduct of which he was previously convicted—possession of a firearm—was constitutionally
protected, it cannot serve as a predicate for his armed habitual criminal conviction.” (Emphasis
in original.) Id.
¶ 26 Our court in Perkins rejected this attempt to differentiate the UUWF offense from the AHC
offense as “a distinction without a difference.” Id. ¶ 7. We explained:
“In order to sustain its burden to prove that defendant is an armed habitual criminal, the
State need only prove the fact of the prior convictions of enumerated offenses
[citations], just as the State need only prove the fact of a prior felony conviction to
support a UUWF conviction. Nothing in the armed habitual criminal statute requires a
court to examine a defendant’s underlying conduct in commission of the enumerated
offenses in order to find that the State has sustained its burden of proof. And because
here, as in McFadden, Perkins’ prior convictions had not been vacated prior to his
armed habitual criminal conviction, they could properly serve as predicates for that
conviction.” Id.
¶ 27 The same reasoning from Perkins applies to the defendant’s attempt to distinguish the
AHC statute in this case. Thus, we reject the defendant’s first argument raised in opposition to
the application of McFadden to support the AHC offense in this case.
¶ 28 The second argument raised by the defendant to oppose the application of McFadden has
also been rejected by our court. Specifically, the defendant asserts that United States Supreme
Court precedent, including Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016) and
Ex parte Siebold, 100 U.S. 371 (1880), precludes the use of a prior conviction, premised on a
statute later held unconstitutional, as a predicate for the AHC offense. The defendant urges that
because the McFadden decision of our supreme court “did not address” this authority from the
United States Supreme Court, we are “not bound by McFadden.”
¶ 29 In Montgomery, the United States Supreme Court held that the prohibition against
mandatory life sentences without parole for juvenile offenders was a substantive rule of
constitutional law entitled to retroactive effect. 577 U.S. at ___, 136 S. Ct. at 734. In so
holding, the United States Supreme Court recognized: “A conviction or sentence imposed in
violation of a substantive rule is *** void. See Siebold, 100 U. S., at 376. It follows *** that a
court has no authority to leave in place a conviction or sentence that violates a substantive rule,
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regardless of whether the conviction or sentence became final before the rule was announced.”
Id. at ___, 136 S. Ct. at 731.
¶ 30 The defendant asserts that Montgomery and other United States Supreme Court precedent
prevents “States from ever punishing a citizen, whether directly or collaterally, based on a law
that is facially unconstitutional.” He asserts that our supreme court’s decision in McFadden
violates this principle by permitting the State to use an unconstitutional conviction for AUUW
to support a conviction for UUWF. He argues that, under Montgomery, the State “cannot give
legal effect to a conviction under a facially unconstitutional criminal statute,” which will result
if his prior AUUW conviction is allowed to support his AHC conviction. In other words, he
argues that we cannot follow the reasoning of our supreme court in McFadden because it runs
afoul of United States Supreme Court precedent.
¶ 31 Again, we note that this argument was addressed and rejected by our court in Perkins,
which upheld an AHC conviction predicated on the form of AUUW invalidated by Aguilar.
Perkins, 2016 IL App (1st) 150889, ¶¶ 8-9. In Perkins, the defendant similarly argued that,
pursuant to Montgomery, Aguilar was entitled to “retroactive effect and that the State’s
reliance on his prior UUWF and AUUW conviction violates Montgomery’s central premise:
‘There is no grandfather clause that permits States to enforce punishment the Constitution
forbids.’ ” Id. ¶ 8 (quoting Montgomery, 577 U.S. at ___, 136 S. Ct. at 731).
¶ 32 However, our court rejected the argument (repeated by the defendant in this case) that our
supreme court’s decision in McFadden had ignored or violated Montgomery:
“Perkins contends that our supreme court ‘ignored’ the decision in Montgomery.
But as the State points out, prior to oral argument in McFadden, counsel sought and
was granted leave to cite Montgomery as additional authority. In that motion, counsel
advanced the same arguments presented here. In response, the State argued, as it does
here, that Montgomery posed no constitutional impediment to affirmance of the
defendant’s UUWF conviction given that defendant was not seeking to vacate his prior
conviction ***, but instead was challenging his status as a convicted felon at the time
of his trial. The State argued that in this context, Lewis v. United States, 445 U.S. 55,
60-62 (1980), which held that a defendant’s failure to vacate a prior felony conviction
on grounds that it was unconstitutional was fatal to a challenge to a felon-in-possession
conviction, controlled. We agree with the State.
At the time of Perkins’ armed habitual criminal conviction he had prior UUWF and
AUUW convictions. Because those convictions had not been vacated at the time
Perkins possessed a firearm ***, they could properly serve as the predicates for his
armed habitual criminal conviction.” Id. ¶¶ 9-10.
¶ 33 The same reasoning from Perkins applies to support the defendant’s AHC conviction in
this case. At the time of the defendant’s AHC conviction, he had two prior convictions,
including an AUUW conviction, that were qualifying predicate offenses under the AHC
statute. As those convictions had not been vacated at the time of the defendant’s arrest in July
2012, they could properly serve as the predicates for his AHC conviction. In light of the
foregoing, we conclude that, pursuant to McFadden and Perkins, the defendant’s AHC
conviction could be predicated on his prior conviction for AUUW, notwithstanding that the
prior conviction stemmed from the statutory provision later held unconstitutional in Aguilar.
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¶ 34 We now turn to the defendant’s separate argument, that his AHC and UUWF convictions
should be reversed because the State failed to prove beyond a reasonable doubt that he had
constructive possession of the firearm and ammunition recovered by the police.
¶ 35 When the sufficiency of the evidence is challenged on appeal, we must determine
“ ‘whether, after viewing the evidence in the light most favorable to the [State], any rational
trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”
(Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting
Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to
the trier of fact and does not retry the defendant on appeal. People v. Smith, 318 Ill. App. 3d 64,
73 (2000). It is within the province of the trier of fact “to assess the credibility of the witnesses,
determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in
the evidence.” Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any
possible explanation compatible with the defendant’s innocence and elevate it to the status of
reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will
not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242
(2006). A reviewing court must allow all reasonable inferences from the record in favor of the
State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be
reversed “unless the evidence is so improbable or unsatisfactory that it creates a reasonable
doubt as to the defendant’s guilt.” Graham, 392 Ill. App. 3d at 1009.
¶ 36 The defendant argues that the State failed to prove beyond a reasonable doubt that he had
constructive possession of the assault rifle and ammunition that were found in the attic of the
home, where he had been living in the first-floor unit for a short time; the apartment unit
contained other family members’ possessions that had been moved and stored in the attic to
make room for him; others had lived there before him; other family members received mail
there and had keys to the unit; and he did not admit to owning the contraband.
¶ 37 The State counters that the evidence established beyond a reasonable doubt that the
defendant possessed the assault rifle and ammunition, which satisfied the element of
possession supporting both his convictions for AHC and UUWF. The State specifically argues
that the defendant was proven to have constructive possession of the assault rifle and
ammunition in his attic where the evidence showed that he had knowledge of the weapon’s
presence and had exclusive control over the area where the weapon was located.
¶ 38 A person commits the AHC offense if he possesses a firearm after having been convicted
of two or more enumerated predicate offenses. See 720 ILCS 5/24-1.7 (West 2012). A person
commits the offense of UUWF if he possesses a firearm or firearm ammunition after having
been convicted of a prior felony. See 720 ILCS 5/24-1.1(a) (West 2012).
¶ 39 “Knowing possession” can be either actual or constructive. People v. Brown, 327 Ill. App.
3d 816, 824 (2002). Because the defendant was not found in actual possession of the assault
rifle, the State had to prove that he constructively possessed it. See People v. McCarter, 339 Ill.
App. 3d 876, 879 (2003). To establish constructive possession, the State must prove that the
defendant (1) had knowledge of the presence of the weapon and (2) exercised immediate and
exclusive control over the area where the weapon was found. Id. “Evidence of constructive
possession is often entirely circumstantial.” (Internal quotation marks omitted.) Id.
“Knowledge may be proven by evidence of a defendant’s acts, declarations or conduct from
which it can be inferred he knew the contraband existed in the place where it was found.”
People v. Ross, 407 Ill. App. 3d 931, 936 (2011). “Control is established when a person has the
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‘intent and capability to maintain control and dominion’ over an item, even if he lacks personal
present dominion over it.” People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (quoting People
v. Frieberg, 147 Ill. 2d 326, 361 (1992)). Control over the area where the contraband was
found gives rise to an inference that the defendant possessed the contraband. See McCarter,
339 Ill. App. 3d at 879. “Knowledge and possession are questions of fact to be resolved by the
trier of fact, whose findings should not be disturbed upon review unless the evidence is so
unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt
of guilt.” People v. Luckett, 273 Ill. App. 3d 1023, 1033 (1995).
¶ 40 Viewing the evidence in a light most favorable to the State, a trier of fact could find that the
defendant had constructive possession over the assault rifle and ammunition. The evidence
shows that on July 14, 2012, Officer Tweedle found an assault rifle and ammunition in the attic
of the defendant’s home. The first-floor unit, where the defendant lived, had stairs leading to
the attic from the enclosed back porch. The enclosed back porch was accessible from the rear
of the kitchen. Neither the entry leading to the enclosed back porch nor the attic had a door.
According to Officer Tweedle, the assault rifle was loaded and found along with a box of
.223-caliber bullets nearby. Both Officers Tweedle and Pozulp testified that nothing obscured
their view of the assault rifle, which was located near the entrance of the attic. At the time of
the parole compliance check, the defendant was alone in the first-floor unit. The defendant’s
great-aunt, Patricia, testified that the defendant was the only person living in the first-floor unit
at the time of his arrest and that Patricia lived in the basement unit of the residence. Evidence
was also presented to the trial court that when asked about the assault rifle during police
interrogation, the defendant remarked that, “the hood’s crazy, we’re at war with these GDs out
here” and that “I’m not worried about that, and my lawyer will handle this.” On
cross-examination, Officer Pozulp confirmed that the defendant had told the police during
interrogation to “go ahead and charge me with that gun.”
¶ 41 Given this evidence, we find that the trier of fact could reasonably have concluded that the
defendant had knowledge of the presence of the weapon and maintained control over the area
where the contraband was found. When questioned about the recovered assault rifle during
police interrogation, the defendant neither registered surprise as to its existence nor made any
attempt to deny his ownership of the weapon. Instead, he responded to police inquiry by
making statements which were tantamount to an explanation as to his need for it—for
protection. His statements, coupled with corroborating evidence of the weapon’s condition at
the time it was found by the police (loaded with one round in the chamber, 41 live rounds in a
banana magazine, along with an additional 43 rounds of ammunition in a nearby box), gave
rise to a reasonable inference that the defendant had knowledge of the presence of the assault
rifle and ammunition. The defendant now argues that his postarrest statements to the police
were ambiguous at best and that, “[i]n the absence of any other evidence corroborating [his]
constructive possession,” they were not sufficient to support his convictions beyond a
reasonable doubt. He specifically points out that the State produced no physical evidence such
as fingerprints linking him to the assault rifle or ammunition. We reject this contention. As
noted, evidence of constructive possession is often entirely circumstantial. McCarter, 339 Ill.
App. 3d at 879; People v. Stack, 244 Ill. App. 3d 393, 399 (1993) (defendant’s knowledge of
the existence of a firearm within his possession may be inferred from circumstantial evidence).
Thus, in viewing the evidence in a light most favorable to the State, we find that the trial court
could reasonably have construed the defendant’s statements to the police as a tacit
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confirmation of his knowledge that the weapon was located in the attic. See Ross, 407 Ill. App.
3d at 936 (“[k]nowledge may be proven by evidence of a defendant’s acts, declarations or
conduct from which it can be inferred he knew the contraband existed in the place where it was
found”); see generally People v. Brown, 327 Ill. App. 3d 816 (2002) (affirming defendant’s
conviction for UUWF based on constructive possession, where the circumstantial evidence
was corroborated by defendant’s statement to the police about the weapon).
¶ 42 We further find that the evidence presented at trial was sufficient to establish that the
defendant exercised immediate and exclusive control over the attic where the assault rifle and
ammunition were found. Evidence presented at trial showed that the defendant lived alone in
the first-floor unit of the residence at the time of his arrest. The trial court also heard evidence
that the attic, where the assault rifle and ammunition were recovered, was directly accessible
from the defendant’s first-floor unit. Although Patricia testified that both she and the defendant
had physical access to the attic, she stated that she was not aware of the presence of the assault
rifle and the ammunition in the attic. The trial court, as the trier of fact, also noted for the record
that Patricia “had a tremendous amount of difficulty walking in and out of the court”; that she
was “aided by a cart that is on wheels that also has a seat which she sat in when she testified”;
and that she “did not take the two or three steps up to the witness stand.” Viewing the evidence
in a light most favorable to the State, we find that the trial court could reasonably have
concluded that the defendant exercised exclusive control over the attic where the contraband
was found, where it could reasonably be inferred from the record that the defendant was the
only able-bodied person living at 5210 South Morgan Street who could have climbed the attic
stairs and accessed the attic space in order to place the weapon there.
¶ 43 Nonetheless, the defendant makes a number of arguments claiming that he had no
exclusive control over the attic because others also could have accessed the attic. He points to
Patricia’s testimony that Loretta and Willie each had a key to the residence; that before the
defendant moved into the first-floor unit in April 2012, other family members had brought
furniture and items into the apartment and had also “tried to clear some things out to make the
space better for him”; that some items in the attic were there before the defendant moved into
the residence; and that there was mail that was addressed to different family members at the
5210 South Morgan Street location. We reject this contention. Here, the trial court heard
Patricia’s testimony that Loretta’s key was defective and that Loretta no longer possessed it.
Although evidence was presented at trial that both Patricia and the defendant had access to the
attic, it could not reasonably be concluded that Patricia could have climbed the stairs to the
attic on her own, as noted by the trial court’s findings that she was physically limited. No
evidence was presented to the trial court that Willie, as an owner of the residence, accessed the
attic at any point before or during the defendant’s stay in the first-floor unit. Nor was any
evidence presented to show that different family members, to whom mail was addressed at that
location, physically came to the residence to pick up their mail. Indeed, the trial court found
that the fact that there was mail addressed to different family members at the 5210 South
Morgan Street location in no way indicated that “they were coming into this house to get their
mail and were going up into the [d]efendant’s apartment and up into that attic.” While Patricia
testified that other family members brought furniture and items into the first-floor unit in
preparation for the defendant’s arrival in April 2012, and the attic contained items before the
defendant moved in, the trial court was not required to speculate whether the assault rifle and
ammunition were among those items placed in the attic by someone else. See Siguenza-Brito,
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235 Ill. 2d at 219 (the trier of fact was not required to accept any possible explanation
compatible with the defendant’s innocence and elevate it to the status of reasonable doubt).
Moreover, it was within the province of the trial court, as the trier of fact, to assess Patricia’s
credibility and determine what weight to give to her testimony. See Graham, 392 Ill. App. 3d
at 1009 (it is within the province of the trier of fact “to assess the credibility of the witnesses,
determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in
the evidence”). Thus, viewing the evidence in the light most favorable to the State, we find that
the evidence established that the defendant had constructive possession of the assault rifle and
ammunition that were recovered from the attic by the police. Accordingly, the defendant’s
AHC and UUWF convictions must stand.
¶ 44 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 45 Affirmed.
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