dissenting:
I dissent from the majority for two reasons: (1) I disagree with their conclusion that defendant did not have immediate access to or timely control over the weapons while seated on the hood of the car just prior to his arrest, and (2) I think there is sufficient circumstantial evidence for a jury to reasonably conclude that just moments before his arrest defendant had been seated in the passenger compartment of the car with the weapons next to him and certainly within his immediate control while at the same time unlawfully possessing cannabis with intent to deliver it. I would therefore affirm defendant’s conviction for armed violence.
There are now numerous cases which discuss the meaning of the phrase “otherwise armed” as used in section 33A — 1(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1989, ch. 38, par. 33A — 1(a).) In People v. Zambetta (1985), 132 Ill. App. 3d 740, 477 N.E.2d 821, defendant’s conviction for armed violence was upheld based on a finding that defendant was “otherwise armed” with a dangerous weapon while seated in the driver’s seat of his car only a few feet from the unlocked glove compartment which contained a fully loaded revolver positioned in a shoulder holster. The court found that had the drug sale gone “sour,” defendant would have had ready access to the weapon.
In People v. King (1987), 155 Ill. App. 3d 363, 507 N.E.2d 1285, the court found that defendant was not “otherwise armed” with a dangerous weapon where she met the arresting officers at her door wrapped in only a blanket and explained that she was preparing to bathe, she did not live alone, an unloaded gun was found in a bedroom and defendant denied any knowledge of the gun. The court held that the mere physical existence of the weapon without knowledge or control, including immediate access to the weapon, is not within the meaning of the armed violence statute. The court stated that if the case fell within the purview of the armed violence statute,
“a defendant could be convicted of armed violence, in an otherwise factually similar situation as is present in this case, simply because a weapon was located anywhere in the home. This is a result not intended by the legislature.” 155 Ill. App. 3d at 368-69, 507 N.E.2d at 1288.
In People v. Bond (1989), 178 Ill. App. 3d 1020, 534 N.E.2d 156, defendant’s conviction for armed violence was affirmed where a gun was found underneath the seat cushions of the sofa in defendant’s apartment where he was seated when arrested. Defendant had been ordered to sit on the sofa by the police who, at the time, were unaware of the presence of the weapon. The court found that, although the gun was not physically in defendant’s hands or in actual contact with his person, it was immediately accessible to him. Defendant had knowledge of, control over, and access to the weapon while he was sitting on top of it, regardless of the fact the police had ordered him to sit there. The gun was clearly within defendant’s reach and constituted the kind of danger contemplated by the armed violence statute.
In People v. Shelato (1992), 228 Ill. App. 3d 622, 592 N.E.2d 585, defendant’s conviction for armed violence was vacated because defendant was not “otherwise armed” where, upon defendant’s arrest, a gun was found wrapped in a rag underneath some 60 bags of marijuana inside a zippered duffel bag located more than 10 feet away from defendant. The court held that in order to be “otherwise armed” within the meaning of the statute, defendant must have knowledge or control of the weapon and immediate access to it. If a weapon is not immediately accessible to the felon, the danger the statute seeks to curb is not present. The court held that had the gun been located beneath the cushion of the couch, as in Bond, or had it been “otherwise easily reached” by defendant, the court would find that the weapon was immediately accessible or readily available to be used by defendant. 228 Ill. App. 3d at 627, 592 N.E.2d at 589.
Finally, in People v. Condon (1992), 148 Ill. 2d 96, 592 N.E.2d 951, relied upon by the majority, our supreme court addressed this question. In Condon, defendant was arrested in the kitchen of his home where there were no guns. However, a number of guns were discovered at various locations throughout the house. The court found:
“It was impossible for the defendant to use the guns as they were situated because they were too far removed from the defendant. *** [H]e had no ‘immediate access to’ or ‘timely control over’ the guns.” Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.
Thus, our supreme court has made it clear that, in order to be “otherwise armed” within the meaning of the armed violence statute, a felon must have “some type of immediate access to or timely control over the weapon.” (Emphasis in original.) (Condon, 148 Ill. 2d at 110, 592 N.E.2d at 958.) This requirement serves the purpose of the statute, which is to deter felons from using dangerous weapons so as to avoid the deadly consequences which might result if the victim resists.
“A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision. Hence we have the deterrent purpose of the armed violence statute. Thus, for this purpose to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon.” (Emphasis in original.) Condon, 148 Ill. 2d at 109-10, 592 N.E.2d at 958.
I think in the instant case defendant had such immediate access to or timely control over the weapons located on the front seat of the car that he was in a position to make an instantaneous decision to use the guns. Defendant was not distant from the car and need only have reached through the window or opened the car door to grab one of the guns. Both weapons were loaded and the safeties off. This case is not like King or Condon, where the weapons were located some distance from the defendant, indeed in different rooms of the house. Nor is it like Shelato, where the gun was encumbered and not easily accessible. The instant case is similar to Zambetta, where defendant need only have reached into his unlocked glove compartment, or Bond, where defendant need only have reached underneath the sofa cushion on which he was seated.
I think the danger sought to be curbed by the armed violence statute was clearly present in the instant case. The presence of a weapon within easy and quick reach enhances the danger that any felony that is committed will have deadly consequences should the victim (or the police) resist. (Bond, 178 Ill. App. 3d at 1022, 534 N.E.2d at 158.) It is the ready availability of the weapon which poses the risk that the statute seeks to address. (Shelato, 228 Ill. App. 3d at 626, 592 N.E.2d at 589.) The weapons in the instant case were readily available and easily reachable by the defendant, and the jury could have reasonably so found. Possession and knowledge are questions of fact for the jury, and such findings will not be set aside on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Stamos (1991), 214 Ill. App. 3d 895, 905, 574 N.E.2d 184, 190.) I do not think such is the case here.
I note for the sake of clarity that I do not rest my conclusion on a theory of “constructive possession,” as urged by the State. I simply think that defendant had immediate access to, or timely control over, the weapons such that he was “otherwise armed” within the meaning of the armed violence statute.
I also think there was sufficient circumstantial evidence that the jury could have reasonably found that minutes prior to his arrest defendant had been seated in the passenger compartment of the vehicle with the guns and cannabis and that he exited the vehicle to open the gate and rode to the house on the hood of the car. These are reasonable inferences from the evidence that police officers had observed the car travel rapidly down the gravel road leading to the driveway, turn sharply into the driveway and stop at the gate which blocked the driveway to the house. The officers then heard a car door open and shut, the gate open and the car drive through the gate. When the car pulled up to the house, defendant was seated on the hood of the car between the right wheel and the windshield. That defendant had in his pocket a key to the car trunk supports a finding that he had been a passenger in the car.
A criminal conviction should not be set aside unless the evidence is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (Shelato, 228 Ill. App. 3d at 625, 592 N.E.2d at 588.) The standard to be employed in reviewing the sufficiency of the evidence is not whether the reviewing court believes the evidence establishes defendant’s guilt beyond a reasonable doubt, but whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of crime beyond a reasonable doubt. (Shelato, 228 Ill. App. 3d at 625, 592 N.E.2d at 588.) I would not disturb the jury’s verdict in the instant case.