dissenting:
I respectfully dissent. I do not believe that the evidence presented by the State was sufficient to prove the defendant guilty beyond a reasonable doubt. For the offense of unlawful use of a weapon, the State was obligated to prove that the defendant knowingly carried or possessed a firearm “in any vehicle or concealed on or about his person.” 720 ILCS 5/24—1(a)(4) (West 1994). In the instant case, there was no testimony by any of the officers that the defendant was in actual physical possession of the pistol.
The majority asserts that the defendant’s conviction can be upheld under the doctrine of constructive possession. Under that doctrine, the State may circumstantially prove the element of possession by establishing that the defendant had immediate and exclusive control over the area where the weapon was found. People v. Oden, 261 Ill. App. 3d 41, 47 (1994); People v. Williams, 98 Ill. App. 3d 844, 847-48 (1981). The defendant’s exclusive control over the area must be such that his knowledge of the presence of the weapon may be inferred. People v. Givens, 46 Ill. App. 3d 1035, 1041 (1977). In accordance with this rule, the jury in the instant case was instructed that constructive possession requires proof that the defendant intended to exercise control over the weapon. See Illinois Pattern Jury Instructions, Criminal, No. 4.16 (3d ed. 1992).
The evidence presented herein failed to establish the defendant’s exclusive control over the area where the weapon was found or his intent to exercise control over the weapon. It was undisputed that the defendant did not own the car and was but one of four passengers. It is speculative to infer that the defendant intended to possess the weapon merely because he “occupied” the backseat where the weapon was found. Indeed, the weapon was found wedged into the crack of the backseat and was located halfway between the backseat passengers. The defendant specifically denied knowing that weapons were in the car and did not observe the pistol until the other backseat passenger exited the car.
Additionally, I believe that the majority’s holding that constructive possession may be inferred by the mere “occupation” of the area in which the contraband is found is a broad extension of existing case law. Although the majority correctly notes that multiple persons can jointly possess a weapon for the purposes of constructive possession, Illinois courts have previously applied the doctrine only in those instances when there is some indicia that the charged defendant has the right to exert his control over the area where the contraband was found. See People v. Hester, 271 Ill. App. 3d 954, 961 (1995) (weapons found in house owned by defendant); Williams, 98 Ill. App. 3d at 848-49 (shotgun found in apartment where defendant had been living for two weeks); Givens, 46 Ill. App. 3d at 1041 (shotgun found under passenger seat of defendant’s vehicle). In each of these cases, the defendant’s right to exert control over the auto or dwelling where the contraband was found was essential to establishing constructive possession. Hester, 271 Ill. App. 3d at 961; Williams, 98 Ill. App. 3d at 848-49; Givens, 46 Ill. App. 3d at 1041.
Here, the defendant could not have immediate and exclusive control over an automobile in which he was riding as a passenger. Certainly the defendant’s mere presence in the backseat cannot support a legal inference that he was aware of the presence of the pistol and intended to exercise his control over it. See generally People v. Pugh, 36 Ill. 2d 435, 436-37 (1967) (mere presence in apartment at time contraband seized insufficient to establish constructive possession). Lacking any other evidence of the defendant’s intent, I do not believe that a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. I would therefore reverse his conviction.