People v. Hesler
State: Illinois
Court: 4th District Appellate
Docket No: 4-95-1005
Case Date: 07/17/1997
NO. 4-95-1005
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Vermilion County
GREG A. HESLER, ) No. 94CM995
Defendant-Appellant. )
) Honorable
) Joseph P. Skowronski,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Defendant Greg Hesler was charged with unlawful use of
weapons in violation of section 24-1(a)(4) of the Criminal Code
of 1961 (Code) (720 ILCS 5/24-1(a)(4) (West 1994)). Following a
bench trial, defendant was convicted. Defendant appeals, chal-
lenging the sufficiency of the evidence to sustain the convic-
tion. We affirm.
On October 15, 1994, at about 10:40 p.m., Timothy
Hetrick, a police officer for the City of Danville, was conduct-
ing roadside safety checks. The check involved stopping vehicles
and checking for drivers with suspended licenses or who were
intoxicated. Hetrick approached defendant's vehicle, a black
Chevy pickup truck. As soon as he started talking to defendant,
he noticed there was a revolver on the seat of the truck next to
defendant's right leg. The cylinder of the revolver was missing.
Hetrick "drew [his] duty weapon. Ordered [defendant]
to put his hands out the window." Defendant was cuffed andplaced in the backseat of a squad car. Hetrick testified that
"[a]fter [defendant] was removed [from his truck,] we done [sic]
a further search of the vehicle. I found a cylinder, which was
out of the revolver, laying [sic] on the floor, which would have
been underneath [defendant's] right leg. And it was loaded with
six live rounds of .22 ammunition." Subsequently, Hetrick
testified that he did not believe all six rounds were actually in
the cylinder; he believed a couple of them had fallen out on the
floor.
Hetrick was of the opinion that it would take less than
30 seconds to reassemble the gun, although he could not recall
whether he actually attempted to do so himself. Hetrick did not
see defendant remove the cylinder from the gun, nor did he see
defendant make any movements that would suggest defendant was
removing the cylinder. Nonetheless, Hetrick testified that it
was his opinion that defendant had removed the cylinder only upon
seeing the police officers. He based his opinion upon three
facts: (1) the presence of only six rounds suggested to Hetrick
that the gun was not going to be used for target practice; (2)
that the weapon was on the seat next to defendant suggested to
Hetrick that defendant carried the gun for protection; and (3)
that the cylinder was found on the floorboard, "as if someone had
just dropped it in the floorboard, it's just not--not any type of
common sense way to be transported [sic]." At the end of the
State's evidence, defendant asked for a "directed verdict."
Defendant's motion was denied.
Defendant testified that the gun was not assembled
while it was in his truck. Defendant said the revolver was
wrapped in a towel and lying on the seat next to him. When he
saw that he was being stopped, he unwrapped the disassembled
revolver and placed it on the seat next to him so that it would
be in plain sight. According to defendant, the cylinder and the
six rounds were in a map pouch on the front of the driver's seat,
near his legs. After his arrest, defendant said he borrowed a
friend's gun, which is identical to his, and attempted to assem-
ble the gun under like circumstances (in the dark). Defendant
testified it took over four minutes to assemble and load the gun
under those circumstances, but on cross-examination he admitted
that his assembly of the gun included checking it for obstruc-
tions to make sure the gun could be properly fired.
Hetrick testified, upon rebuttal, that he did not
recall seeing a towel or a map pouch in defendant's truck. After
hearing argument, the trial court found defendant guilty. The
trial court was of the opinion that defendant failed to prove by
a preponderance of the evidence that he is entitled "to the
exception as far as transportation of weapons broken down in a
non-functioning state or not immediately accessible to him." The
trial court then concluded that, "[b]ased upon the testimony of
the officer as to the position of the weapon and its accessory[,]
it would appear to the court that this was immediately accessible
to the defendant and could have been assembled *** in a very
brief period of time." Not having any prior arrests or convic-
tions, except for a speeding ticket, the court sentenced defen-
dant to one year's conditional discharge and ordered defendant to
pay $150 plus costs. In addition, defendant was ordered to pay a
$100 public defender fee.
Defendant's sole contention upon appeal is that he was
not proved guilty beyond a reasonable doubt. Where a defendant
raises the question of reasonable doubt on review, the relevant
inquiry is whether, "'after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt.'" People v. Burrows, 148 Ill. 2d 196, 225, 592
N.E.2d 997, 1009 (1992), quoting People v. Steidl, 142 Ill. 2d
204, 226, 568 N.E.2d 837, 845 (1991). This standard is applica-
ble whether the evidence is direct or circumstantial. People v.
Ward, 154 Ill. 2d 272, 314, 609 N.E.2d 252, 269 (1992). Circum-
stantial evidence is sufficient to sustain a conviction if it
satisfies proof beyond a reasonable doubt of the elements of the
crime charged. People v. Gomez, 215 Ill. App. 3d 208, 216, 574
N.E.2d 822, 827 (1991), citing In re Winship, 397 U.S. 358, 25 L.
Ed. 2d 368, 90 S. Ct. 1068 (1970). It is the function of the
fact finder to weigh the evidence, judge the credibility of the
witnesses, and resolve conflicts in the evidence. People v.
Neither, 166 Ill. App. 3d 896, 900, 520 N.E.2d 1247, 1249 (1988).
Defendant was convicted of unlawful use of weapons.
720 ILCS 5/24-1(a)(4) (West 1994). In pertinent part, that
statute reads:
"A person commits the offense of unlawful
use of weapons when he knowingly:
* * *
(4) carries or possesses in any
vehicle or concealed on or about his
person except when on his land or
in his own abode or fixed place of
business any *** revolver ***." 720
ILCS 5/24-1(a)(4) (West 1994).
There is no dispute that defendant possessed a revolver in his
vehicle and that he was neither on his land, nor in his abode or
fixed place of business. Rather the dispute in this case focuses
upon whether defendant fell within a statutory exemption to the
unlawful use of weapons charge. Section 24-2(b)(4) of the Code
provides that section 24-1(a)(4) does not apply or affect the
"[t]ransportation of weapons that are broken down in a non-func-
tioning state or are not immediately accessible." 720 ILCS 5/24-
2(b)(4) (West 1994). A person charged with unlawful use of
weapons must prove, by a preponderance of the evidence, that he
falls within one of the exemptions. 720 ILCS 5/24-2(h) (West
1994); People v. Smith, 71 Ill. 2d 95, 109, 374 N.E.2d 472, 478
(1978); cf. 720 ILCS 5/3-2 (West 1994) (affirmative defenses).
Defendant relies upon People v. Freeman, 196 Ill. App.
3d 370, 553 N.E.2d 780 (1990). In Freeman, the defendant's car
was stopped because it did not have a functioning license plate
light. The police officer claimed that, as he approached the
car, he saw the defendant making movements that suggested to the
police officer that the defendant was sticking something in his
pocket. Upon finding that the defendant did not have a valid
driver's license, the defendant was arrested and searched. The
cylinder to a revolver was found in the defendant's left pants
pocket, and a revolver was found under a cardboard box on the
front seat. The trial court did not believe the police officer's
testimony that the defendant disassembled the gun upon the
officer's approach. Nonetheless, the trial court convicted the
defendant because of the court's belief that the pistol was
within the defendant's immediate control. The appellate court
reversed because a "broken down, cylinderless pistol, incapable
of being fired, not in immediate operating condition, and not
immediately accessible" does not fall within the purview of the
unlawful use of weapons statute. Freeman, 196 Ill. App. 3d at
373, 553 N.E.2d at 782.
Freeman is confusing, as it seems to mix the exemptions
found in section 24-2(b)(4) of the Code. As noted, however, that
subsection states that section 24-1(a)(4) does not apply or
affect the "[t]ransportation of weapons that are broken down in a
non-functioning state or are not immediately accessible."
(Emphasis added.) 720 ILCS 5/24-2(b)(4) (West 1994). Whether
the weapon is broken down and whether the weapon is inaccessible
constitute separate exceptions.
There are at least three ways an average citizen can
legally transport a firearm. First, the possessor of a valid
firearm owner's identification card (FOID card) can legally
transport an unloaded firearm so long as it is enclosed in a
container. 720 ILCS 5/24-2(i) (West 1994); People v. Bruner, 285
Ill. App. 3d 39, 42-43, 675 N.E.2d 654, 656 (1996). Second, a
person can legally transport a firearm by placing it in an area
that is not immediately accessible, such as a locked trunk. 720
ILCS 5/24-2(b)(4) (West 1994). Finally, a person can legally
transport a firearm that is "broken down in a non-functioning
state." 720 ILCS 5/24-2(b)(4) (West 1994). The first two
methods are inapplicable to the instant case, and defendant does
not argue otherwise. Rather, defendant argues that he proved, by
a preponderance of the evidence, that he was entitled to the
"broken down" exemption.
Under the "broken down" exemption, removing the cylin-
der from a revolver or the bolt from a rifle would render the
weapon legal for transportation purposes, even if the two parts
were sitting next to each other on the front seat of the vehicle.
Cf. People v. White, 253 Ill. App. 3d 1097, 1098, 627 N.E.2d 383,
384 (1993) (suggesting that, in a prosecution for possession of
firearms by a felon, "temporarily inoperable firearms which can
be made operable within a reasonable time fall within the purview
of the statutes governing use and possession of firearms"). The
statute requires only that the weapon be broken down and in a
nonfunctioning state, and nothing more. Any other conclusion
would make it difficult for owners of pickup trucks and vans to
transport firearms.
The evidence in this case establishes that defendant's
revolver was broken down by the time Hetrick reached defendant's
truck. However, that is not the only relevant time period: if
defendant disassembled the weapon because he saw he was being
approached by the police, then defendant was guilty of unlawful
use of a weapon in violation of section 24-1(a)(4) of the Code.
720 ILCS 5/24-1(a)(4) (West 1994).
In the instant case, the trial court was somewhat
unclear as to its rationale for finding guilt. Nonetheless,
reading the comments of the trial judge in their entirety leads
us to conclude that the judge disbelieved defendant's claim that
he had removed the cylinder prior to transporting the weapon.
First, the trial judge distinguished Freeman because the trial
court there found the defendant had broken down the gun before
transporting the weapon. Next, the trial court noted Hetrick's
testimony regarding the position of the gun, the position of the
cylinder, and the position of the ammunition and then stated that
defendant had failed to prove by a preponderance of the evidence
that "he is entitled to the exception as far as transportation of
weapons broken down in a non-functioning state or not immediately
accessible to him." In short, the trial court disbelieved
defendant's claim that he had disassembled the revolver prior to
putting it in his truck.
The trial court then concluded that, based upon the
proximity of the revolver and the cylinder to defendant, the gun
was "immediately accessible to the defendant and could have been
assembled *** in a very brief period of time." As noted, defen-
dant was not required to show the parts of the gun were inacces-
sible, so long as he had shown the gun was broken down in a
nonfunctioning state. Nonetheless, it was necessary for the
court to address the revolver's accessibility. The determination
of whether a defendant is entitled to the "broken down" exemption
requires the trier of fact to make a single determination: was
the firearm disassembled during the relevant time period? If the
answer to the question is "yes," then the transportation was
lawful. However, if the answer is "no," then the fact finder
must determine whether the firearm was immediately accessible,
because it is legal to transport a fully assembled firearm so
long as it is not immediately accessible. In the instant case,
the trial court rejected defendant's claim that the revolver was
disassembled prior to his being stopped by the police. It is
uncontroverted that the fully assembled weapon would have been
immediately accessible, and the trial court's comments on the
accessibility of the revolver, in this respect, were proper.
Viewing the evidence in the light most favorable to
prosecution, the cylinderless revolver was on the seat next to
defendant, the cylinder and ammunition were on the floor at his
feet. It is reasonable to infer from this evidence that defen-
dant disassembled the weapon immediately prior to Hetrick's
approach. The trial court could have reasonably concluded the
State proved the essential elements of the crime beyond a reason-
able doubt.
For the foregoing reasons, the judgment of the trial
court is affirmed.
Affirmed.
McCULLOUGH and GREEN, JJ., concur.
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