                                          2019 IL App (3d) 160709

                                Opinion filed August 27, 2019
     ____________________________________________________________________________

                                                   IN THE

                                   APPELLATE COURT OF ILLINOIS

                                             THIRD DISTRICT

                                                     2019

     THE PEOPLE OF THE STATE OF                        )       Appeal from the Circuit Court
     ILLINOIS,                                         )       of the 10th Judicial Circuit,
                                                       )       Peoria County, Illinois.
            Plaintiff-Appellee,                        )
                                                       )       Appeal No. 3-16-0709
            v.                                         )       Circuit No. 16-CF-180
                                                       )
     ORLANDO CHARLES ALEXANDER,                        )       Honorable
                                                       )       John P. Vespa,
            Defendant-Appellant.                       )       Judge, Presiding.
     ____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justice Wright concurred in the judgment and opinion.
           Justice Carter dissented, with opinion.
     ____________________________________________________________________________

                                                 OPINION


¶1          The defendant, Orlando Charles Alexander, appeals from his conviction for unlawful

     possession of a weapon by a felon.

¶2                                                 FACTS

¶3          The defendant was charged with unlawful possession of a weapon by a felon (720 ILCS

     5/24-1.1(a) (West 2016)). At trial, the State alleged that the defendant ran from a traffic stop with

     a gun in his hand. Officers gave chase and found the defendant hiding by a porch, and the gun

     was found discarded on the defendant’s route.
¶4             City of Peoria police officer David Logan testified that he attempted to effectuate a traffic

     stop around 7:30 p.m. on March 8, 2016, on a black Chrysler vehicle after he observed it cross

     the center line. Logan activated his lights, and the Chrysler pulled to the curb but then fled from

     the curb after Logan and his partner had exited their vehicle. Logan radioed what had happened

     and received a radio transmission from City of Peoria police officer Bryan Sylvester stating that

     Sylvester had located the vehicle and people were running from the vehicle. Logan testified that

     Sylvester stated over the radio that one person was running eastbound with a gun in his hand.

     Logan’s report indicated that Sylvester stated that both males ran east from the vehicle and were

     armed with guns. Logan’s report stated that the gun was found in the path of the defendant’s

     flight.

¶5             Sylvester testified that he had put out a radio transmission on March 8 for assistance in

     stopping a black Chrysler. When Logan indicated that he was stopping the vehicle, Sylvester

     drove on a parallel street in the area. After the black Chrysler fled the stop, it turned on the street

     in front of Sylvester. Sylvester testified that the Chrysler came to a stop and two males exited on

     foot. Sylvester described one as tall, wearing a white sweatshirt and stonewashed jeans. The

     other male was shorter, wearing dark clothing. Sylvester identified that taller male as the

     defendant. Sylvester testified that he was about 20 feet away, with his headlights on, when he

     saw the defendant exit the vehicle with a large, black semiautomatic firearm. The defendant fled

     eastbound down a driveway, continuing between the houses. The other male, in black clothing,

     also initially ran east, but just to the sidewalk, and then proceeded southbound. Sylvester

     attempted to follow the defendant, but when the defendant turned north, Sylvester went back to

     the sidewalk and ran north to the street. The defendant was found by other officers by a house on




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     the next street. The other male was found by other officers in a nearby backyard. The gun was

     found in the garden area next to the driveway that the defendant ran down.

¶6          Sean Johnston, also a police officer with the City of Peoria, testified that he responded to

     help locate the two males that fled from the Chrysler. He parked one street over to the east and

     began searching the yards. Johnston found the defendant hiding underneath a deck of a house on

     that street. The defendant was wearing a white sweatshirt.

¶7          Sergeant James Chiola testified that he followed the path that Sylvester told him that the

     defendant took and found a semiautomatic firearm on the other side of the fence along the

     driveway, about 15 to 18 feet from the driveway. Chiola testified that the gun was about 60 feet

     from the sidewalk in front of the house. It was a black Beretta, a .22 caliber. There was dirt on

     top of the gun, as if it had been freshly thrown, and no moisture on it.

¶8          Officer Brock Lavin testified that the other male was located in the backyard of a house

     on the street where the Chrysler stopped, about a half a block away. Officer Brittany Martzluf, a

     member of the Peoria Police Department Crime Scene Unit, described the gun as a .22 caliber. It

     was laying in the yard and had some dirt on it that Martzluf described as fresh. The gun had no

     moisture on it. She took custody of the gun and swabbed it for potential DNA and tested it for

     fingerprints. She did not find any fingerprints. Ann Yeagle, a forensic scientist employed by the

     Illinois State Police, testified that there was some DNA on the gun but not in a sufficient amount

     to make a comparison to the defendant. She could not include or exclude anyone based on the

     incompleteness of the DNA profile.

¶9          The defendant’s sister, Lantrese Alexander, testified that she was driving the Chrysler

     and the defendant was in the back seat along with the other male. She pulled over for the police,

     but then drove off because she was driving with no insurance and no license and she panicked.


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       When she pulled over again, everyone ran out of the car. Lantrese testified that her brother did

       not have a gun but she saw the other male passenger with a gun.

¶ 10          During closing argument, the State argued that Sylvester had seen the defendant run with

       the gun in his hand. The State also pointed to the circumstantial evidence that the gun was found

       in the defendant’s path. The defense argued that the other male had the gun and he could have

       thrown it in the same yard—it was a longer throw, but a better angle.

¶ 11          The trial court instructed the jury, and the jury began deliberations. However, the jury

       then submitted a question to the court: “What is the definition of ‘possession’ in accordance with

       the law?” The jury instructions had not included an instruction defining possession. The State

       proposed that the jury be given the Illinois Pattern Jury Instruction defining “possession.” The

       instruction stated:

              “Possession may be actual or constructive. A person has actual possession when he has

              immediate and exclusive control over a thing. A person has constructive possession when

              he lacks actual possession of a thing but he has both the power and the intention to

              exercise control over a thing either directly or through another person.” See Illinois

              Pattern Jury Instructions, Criminal, No. 4.16 (4th ed. 2000) (hereinafter IPI Criminal 4th).

       The defense objected to the giving of any instruction, but the jury was given the instruction and

       continued deliberating. The jury then returned a guilty verdict.

¶ 12          The defense filed a posttrial motion for judgment notwithstanding the verdict or for a new

       trial. One issue raised in the motion was the extra instruction given to the jury, arguing that it

       violated the defendant’s right to due process and was more prejudicial than probative. When

       arguing the motion, defense counsel argued that including the definition of constructive

       possession introduced an additional charge to the jury that the defendant had not defended


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       against. The trial court denied the motion and proceeded to sentencing, imposing a sentence of

       six years in prison. The defendant appealed.

¶ 13                                               ANALYSIS

¶ 14          The defendant argues that the trial court abused its discretion by instructing the jury on

       the definition of possession after the jury had begun its deliberations. The defendant

       acknowledges that his posttrial motion was untimely because it was filed more than 30 days after

       the verdict but contends the issue can be reached. The State argues that the defendant forfeited

       review of the issue because his posttrial motion was untimely but, in any event, the trial court did

       not abuse its discretion or plainly err in giving the supplemental jury instruction.

¶ 15          Ordinarily, to preserve an issue for review, a party must raise it at trial and in a written

       posttrial motion. People v. Enoch, 122 Ill. 2d 176, 190 (1988). In this case, defense counsel

       challenged the instruction when it was given. However, the defendant’s posttrial motion was not

       timely since it was filed seven weeks after the jury verdict was returned. See 725 ILCS 5/116-

       1(b) (West 2016) (a written motion for a new trial shall be filed within 30 days following the

       return of a verdict). The posttrial motion was filed prior to sentencing and entry of final

       judgment, though, and the trial court ruled on the motion. See People v. Salem, 2016 IL 118693,

       ¶ 13 (noting that a trial court has jurisdiction to consider untimely posttrial motions filed within

       the 30-day period following the entry of final judgment). Since the State did not challenge the

       timeliness of the posttrial motion and the trial court ruled on the motion, we find the State’s

       objection to be waived and that the defendant did not forfeit the jury instruction issue. See

       People v. Raibley, 338 Ill. App. 3d 692, 698 (2003) (the State waived the issue of timeliness by

       not arguing the issue). The timeliness of the posttrial motion does not affect our appellate

       jurisdiction in this case because the notice of appeal was filed within 30 days of the entry of the


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       final order. See Ill. S. Ct. R. 606(b) (eff. Dec. 11, 2014) (notice of appeal must be filed within 30

       days after the entry of the final judgment appealed from or within 30 days after the entry of the

       order disposing of a timely-filed motion directed against the judgment); see also Salem, 2016 IL

       118693, ¶ 12 (compliance with Rule 606(b) is required for appellate jurisdiction).

¶ 16          The defendant argues that the State had argued actual possession during the defendant’s

       trial and the jury instruction given during deliberations introduced the theory of constructive

       possession to the jury. The defendant contends that he had the opportunity to argue that the State

       failed to prove actual possession but he was unable to refute the new theory of constructive

       possession because it was not raised during trial. The State contends that the possession

       instruction was an accurate statement of law and accurately answered the jury’s question.

¶ 17          Jury instructions are to be settled before closing arguments. See 735 ILCS 5/2-1107(c)

       (West 2016); Ill. S. Ct. R. 451(c) (eff. July 1, 2006). A jury is entitled, though, to receive further

       instruction if it has a question during deliberations. People v. Leach, 2011 IL App (1st) 090339,

       ¶ 15. When faced with a question from a jury, a trial court should exercise its discretion in

       answering or refraining from answering the jury question. People v. Millsap, 189 Ill. 2d 155, 161

       (2000). However, “[i]f the trial court provides instruction to the jury mid deliberation, it must

       refrain from submitting instructions on new case theories.” People v. Brown, 406 Ill. App. 3d

       1068, 1079 (2011) (citing Millsap, 189 Ill. 2d at 161).

¶ 18          Both parties agree that IPI Criminal 4th No. 4.16 accurately stated the law, although the

       defendant contends that it should not have been given because there was no evidence at trial of

       joint or constructive possession. See IPI Criminal 4th No. 4.16, Committee Note (“When there is

       no evidence that the possession was either constructive or joint *** it generally will be

       unnecessary to instruct the jury regarding the definition of possession.”). The defendant’s


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       primary challenge to the instruction, though, is that it introduced a new theory into the case—

       constructive possession. Actual possession and constructive possession are two theories under

       which a defendant may be proved guilty of the offense of possession. People v. Dismuke, 2013

       IL App (2d) 120925, ¶ 16. Actual possession may be proven by testimony of some form of

       dominion over the object, while constructive possession is proven with evidence of the

       defendant’s intent and capability to maintain control and dominion over the object. Id. In this

       case, we agree that the jury instruction given during deliberations introduced constructive

       possession as a new theory in the case and the defendant was denied the opportunity to address

       that theory. See Millsap, 189 Ill. 2d at 165 (accountability instruction during deliberations was

       reversible error because the defendant was charged as a principal and instruction introduced new

       theory); but see Brown, 406 Ill. App. 3d at 1080 (no abuse of discretion in giving an initial-

       aggressor instruction during deliberations because there was evidence on that issue and it was not

       injecting a new theory into the case).

¶ 19            The error was not harmless, and the defendant was deprived of his due process right to a

       fair trial. The State argued and attempted to prove that the defendant had actual possession of the

       gun. In response to a jury question that indicated that the jury was having doubts about that

       possession, the trial court gave a possession instruction that introduced the theory of constructive

       possession. The jury then convicted the defendant. On these facts, it is possible that the

       defendant was convicted based upon a theory that he was never given the chance to address. He

       was deprived of his right to make a closing argument challenging one of the State’s theories of

       guilt.

¶ 20            We are reversing the defendant’s conviction because of an error in the proceedings, but

       we find that, viewing the evidence in the light most favorable to the State, a rational trier of fact


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       could have found the defendant actual possessing the gun beyond a reasonable doubt. Thus,

       double jeopardy does not bar a retrial of the defendant in this case. See People v. Lopez, 229 Ill.

       2d 322, 366-68 (2008).

¶ 21                                              CONCLUSION

¶ 22            The judgment of the circuit court of Peoria County is reversed and remanded for a new

       trial.

¶ 23            Reversed and remanded.

¶ 24            JUSTICE CARTER, dissenting:

¶ 25            I agree that it was error for the trial court to give IPI Criminal 4th No. 4.16 after closing

       arguments because doing so improperly introduced the theory of constructive possession into the

       case. See Millsap, 189 Ill. 2d at 161 (when faced with a question from the jury and the trial court

       provides an instruction to the jury mid deliberations, the trial court must refrain from submitting

       instructions on new case theories). Additionally, as the majority indicates (supra ¶ 18), the

       committee note to IPI Criminal 4th No. 4.16 states where there is no evidence that possession

       was either constructive or joint, then it will generally be unnecessary to instruct the jury

       regarding the definition of possession. Notably, the committee note also specifically states that

       IPI Criminal 4th No. 4.16 should only be given “when there is an issue as to whether the

       defendant was in constructive possession” or “joint possession.” IPI Criminal 4th No. 4.16,

       Committee Note.

¶ 26            However, I dissent from the majority’s decision because the trial court’s error in giving

       the instruction was harmless and defendant was not deprived of his constitutional right to due

       process. The test for a harmless constitutional error is whether the error was harmless beyond a

       reasonable doubt. People v. Wilkerson, 87 Ill. 2d 151, 157 (1981). In assessing whether the error


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       was harmless, we look to whether (1) the error contributed to the conviction, (2) the evidence

       overwhelming supports the conviction, or (3) determining whether improperly admitted evidence

       is cumulative or merely duplicates properly admitted evidence. Id.; People v. Patterson, 217 Ill.

       2d 407, 428 (2005).

¶ 27           In Millsap, the defendant was charged with home invasion and robbery, and the evidence

       suggested that there was more than one offender. Millsap, 189 Ill. 2d at 156-59. The State did not

       pursue an accountability theory, and neither party requested a jury instruction on accountability

       or argued accountability during closing arguments. Id. at 159. After the jury began deliberations,

       the jury sent a note to the court asking whether an accomplice is just as guilty as the offender

       who causes an injury in a home invasion. Id. The trial court gave the jury an accountability

       instruction, over defendant’s objection. Id. at 159-60. Subsequently, the jury found the defendant

       guilty on both charges, and defendant’s convictions were affirmed on appeal. Id. Our supreme

       court concluded that the trial court erred in giving the instruction because it impinged on

       defendant’s constitutional right to give a closing argument where “he was denied his right to

       address the theory of guilt upon which he may have been convicted.” Id. at 164. Our supreme

       court concluded that the trial court’s error in giving the accountability instruction was not

       harmless because he was deprived of his due process right to a fair trial where “defendant was

       possibly convicted based upon a theory that he was never given a chance to address” and was

       deprived of his right to make a closing argument to controvert one of the State’s theories of guilt.

       Id. at 166.

¶ 28           Here, although it was error to give jury instruction No. 4.16 in this case, I do not believe

       the trial court’s error in giving the instruction warrants a reversal. There was considerable

       evidence to support a guilty verdict and the inclusion of the erroneous jury instruction could not



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have impacted the verdict where there was no evidence or argument upon which jurors could

have found defendant in constructive possession of the weapon. There was no evidence,

argument, or jury question that the suspect lacked actual possession of the gun but only had the

power and intent to exercise constructive control over it. See IPI Criminal 4th No. 4.16. There

was only evidence regarding three different scenarios: defendant ran out of the car with the gun

in his hand, both defendant and the other male who was with defendant each had guns in their

hands, or only the other male had a gun in his hand. In other words, the only evidence at trial was

that either defendant had immediate and exclusive control of the gun (actual possession) or he

did not. There was no evidence presented or argument made that defendant could have had

constructive possession of the gun upon which the jury could have convicted based on that

theory and, thus, the error could not have contributed to defendant’s conviction. Thus, I believe

the trial court’s error in giving the instruction was harmless beyond a reasonable doubt because

the error could not have contributed to the conviction and the evidence overwhelmingly supports

the conviction based on the defendant’s actual possession of a gun.




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                                  No. 3-16-0709


Cite as:                 People v. Alexander, 2019 IL App (3d) 160709


Decision Under Review:   Appeal from the Circuit Court of Peoria County, No. 16-CF-180;
                         the Hon. John P. Vespa, Judge, presiding.



Attorneys                James E. Chadd, Peter A. Carusona, and James Wozniak, of
for                      State Appellate Defender’s Office, of Ottawa, for appellant.
Appellant:


Attorneys                Jerry Brady, State’s Attorney, of Peoria (Patrick Delfino,
for                      Thomas D. Arado, and Jasmine D. Morton, of State’s Attorneys
Appellee:                Appellate Prosecutor’s Office, of counsel), for the People.




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