                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Harris, 2012 IL App (1st) 100077




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JERRY HARRIS, Defendant-Appellant.



District & No.             First District, Second Division
                           Docket No. 1-10-0077


Filed                      February 28, 2012


Held                       Defendant’s convictions for three counts of aggravated unlawful use of
(Note: This syllabus       a weapon based on not having a valid firearm owner’s identification card,
constitutes no part of     possessing an uncased, loaded, and immediately accessible firearm, and
the opinion of the court   knowingly possessing on his person a firearm on a public street were
but has been prepared      reversed on appeal, where defendant did have a valid FOID card, the
by the Reporter of         firearm at issue was “encased” in the closed and latched center console
Decisions for the          of defendant’s car, and the only testimony corroborating defendant’s
convenience of the         statement that he retrieved the weapon from the console and fired it on a
reader.)
                           public street was an anonymous eyewitness’s hearsay statement to a
                           police officer that was insufficient to corroborate defendant’s statement
                           for purposes of proving corpus delicti.


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-CR-1693; the
Review                     Hon. James B. Linn, Judge, presiding.



Judgment                   Reversed.
Counsel on                 Michael J. Pelletier, Alan D. Goldberg, and Darrel F. Oman, all of State
Appeal                     Appellate Defender’s Office, of Chicago, for appellant.

                           Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg and
                           Anne L. Magats, Assistant State’s Attorneys, of counsel), for the People.


Panel                      JUSTICE HARRIS delivered the judgment of the court, with opinion.
                           Justices Cunningham and Connors concurred in the judgment and
                           opinion.



                                             OPINION

¶1           Defendant, Jerry Harris, appeals his bench trial convictions of three counts of aggravated
        unlawful use of a weapon and his sentence of 12 months’ probation. On appeal, Harris
        contends (1) his conviction under count IV, which alleged he did not have a valid firearm
        owner’s identification (FOID) card, should be vacated because he did have a valid FOID
        card; (2) his conviction under count I should be vacated because his gun was “encased” in
        the center console of his car; (3) his conviction under count III should be vacated because it
        required proof that Harris had a firearm “on or about his person” upon a public street and the
        State failed to prove the corpus delicti of this offense; (4) as to count III, the aggravated
        unlawful use of a weapon (AUUW) statute violates Harris’s constitutional right to bear arms;
        and (5) his $5 court system fee should be vacated where he was not convicted for a violation
        of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2006)). We reverse Harris’s
        convictions under counts I, III, and IV. We also vacate the assessment of the $5 court system
        fee.

¶2                                          JURISDICTION
¶3          The trial court sentenced Harris on December 2, 2009, and he filed a timely notice of
        appeal on December 31, 2009. Accordingly, this court has jurisdiction pursuant to article VI,
        section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,
        governing appeals from a final judgment of conviction in a criminal case entered below. Ill.
        Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶4                                      BACKGROUND
¶5          Harris was charged with four counts of aggravated unlawful use of a weapon. Count I
        alleged that Harris “knowingly carried in any vehicle, a firearm, *** and the firearm
        possessed was uncased, loaded, and immediately accessible at the time of the offense.” Count


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       II alleged that Harris “knowingly carried in any vehicle, a firearm, *** and he had not been
       issued a currently valid firearm owner’s identification (FOID) card.” Count III alleged that
       Harris “knowingly possessed on or about his person a firearm, upon a public street, *** and
       the firearm possessed was uncased, loaded, and immediately accessible at the time of the
       offense.” Count IV alleged that Harris “knowingly possessed on or about his person a
       firearm, upon a public street, *** and he had not been issued a currently valid” FOID card.
¶6          Before trial, Harris filed a motion to quash his arrest and suppress evidence. At the
       hearing, Officer Combs testified regarding what a concerned citizen at the crime scene had
       told him. Defense counsel objected, but the trial court allowed the testimony to show Officer
       Combs’ state of mind. The trial court ultimately denied the motion, finding that although
       police did not have a warrant to search or probable cause, Harris gave his consent to search
       his car.
¶7          At the bench trial, Officer Combs testified that on December 14, 2008, he and his partner,
       Officer Caraga, responded to a call of shots fired at 7440 South Wabash in Chicago. Shortly
       after arriving on the scene, Officer Combs spoke with “a concerned citizen” who wished to
       remain anonymous. The witness spoke to the officer through a gangway window of a single-
       family home located 100 to 125 feet from the scene of the shooting. The witness pointed to
       a parked car, and when officers approached this car, they found Harris sitting in the driver’s
       seat.
¶8          The officers conducted a field interview with Harris, and he acknowledged that he owned
       the car and consented to a search of the car. During the search, Officer Combs opened the
       center console and recovered a black .45-caliber semiautomatic weapon. He placed the
       weapon on the front seat for the evidence technician, Officer Edwin Jones. Harris conceded
       that he owned the gun. The parties stipulated that if called to testify, Officer Jones would
       state that he was called to 7517 South Wabash, where he entered a vehicle and observed a
       .45-caliber semiautomatic handgun sitting in the driver’s seat. He later examined the gun and
       concluded that it contained six live rounds. He inventoried the weapon under number
       11528394.
¶9          Harris was taken into custody and read his Miranda rights. While in the police car, Harris
       told Officer Hardman that a green Pontiac had pulled up and started firing. One of the shots
       hit his friend, Keith Jones. Harris then ran to his car, retrieved his gun, and returned fire. At
       the police station, in the presence of Officers Hardman, Combs, and Caraga, Harris again
       stated that he had gone to his car, retrieved his gun, and returned fire. After the State rested,
       Harris moved for reconsideration of his motion to quash his arrest and suppress evidence,
       and for a directed finding. The trial court denied Harris’s motions.
¶ 10        For his defense, Harris recalled Officer Combs as a witness. He stated that after the
       interrogation, Harris was allowed to use the restroom. Officer Combs also prepared a police
       report which stated that a concerned citizen told him that an individual “went to his car
       before the shooting, retrieved a black object and then went back to his car and returned the
       black object after the shooting.” He prepared the report “close in point in time to the events
       it purports to describe.” No objection was made to this testimony at trial. Officer Combs also


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       acknowledged that he is a patrol officer who does not conduct gun-residue testing, but he
       knew that Harris’s washing his hands in the restroom would negate the results of such a test.
¶ 11        Harris testified in his defense. He stated that on December 14, 2008, he and his friends,
       Jones, Al, and Kanik, attended a party at a nightclub on Wabash until about 2:30 or 3 a.m.
       As they headed toward their parked cars, someone fired nine shots, striking Jones. The
       offenders then fled in a car. Harris ran to Jones and called 911. He also called a family friend,
       Janine Robinson, and informed her of the shooting. When police arrived, Harris gave them
       a description of the shooter.
¶ 12        Police gave Harris permission to leave the scene. As he was leaving, officers stopped
       him, threw him to the ground, and took the car keys from his pocket. Using the alarm key,
       the police found Harris’s car. Harris never gave police permission to search his car. Officers
       recovered the gun from a console, which required pressing a button to open the compartment.
       Harris testified that he had placed the gun in the console about a week earlier because he had
       had visitors at his home, including children. He had forgotten about the gun and did not
       remember whether it was loaded. Harris had a valid FOID card on his person at the time and
       denied that officers questioned him after his arrest. On cross-examination, Harris denied
       telling police that he retrieved the gun from his car and fired shots at the person who shot
       Jones.
¶ 13        Janine Robinson testified that she had been at the party at Harris’s home when he
       removed the gun and that she received a call from Harris on December 14, 2008, informing
       her that Jones had been shot. Jones testified that he was shot while walking with his friends
       from the nightclub to the car. He fell to the ground on his back, and he remained in that
       position until an ambulance transported him from the scene. Jones testified that Harris was
       with him the entire time, and he did not see Harris go to his car to get a gun.
¶ 14        The trial court found the officers’ testimony “credible and compelling beyond a
       reasonable doubt.” However, it acquitted Harris of count II because evidence at trial showed
       that he had a valid FOID card at the time of the offense. The trial court convicted Harris on
       counts I, III, and IV. Harris filed a posttrial motion to vacate his convictions which the trial
       court denied. Harris filed this timely appeal.

¶ 15                                        ANALYSIS
¶ 16       Harris first contends that his conviction under count IV, which alleged he did not have
       a valid FOID card, should be vacated because the unrebutted evidence at trial showed that
       he had a valid card. The State concedes this point because the trial court acquitted Harris on
       count II, which was also based on Harris’s alleged lack of a FOID card. Therefore, we vacate
       Harris’s conviction under count IV.
¶ 17       Harris also argues that his conviction under count I should be vacated. Count I alleged
       that Harris “knowingly carried in any vehicle, a firearm, *** and the firearm possessed was
       uncased, loaded, and immediately accessible at the time of the offense.” Harris contends that
       since the police recovered his gun from the closed center console of his car, it was properly
       encased within the meaning of the statute. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West

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       2008). In People v. Holmes, 241 Ill. 2d 509, 519 (2011), our supreme court held that a
       backseat armrest “which contained a cover and latch, falls within the meaning of a case”
       under the statute. The center console of a vehicle is also a “case.” People v. Diggins, 235 Ill.
       2d 48, 57 (2009). The State concedes that since the gun found in Harris’s vehicle was in the
       closed and latched center console, it was encased.
¶ 18        The State argues in the alternative that rather than reverse Harris’s conviction on count
       I, this court should reduce the conviction to misdemeanor unlawful use of a weapon and
       remand the cause for resentencing. “[A] defendant may be convicted of an offense not
       expressly included in the charging instrument if that offense is a lesser-included offense of
       the crime expressly charged.” People v. Rowell, 229 Ill. 2d 82, 97 (2008). Furthermore,
       Supreme Court Rule 615(b)(3) allows a reviewing court to reduce the degree of the convicted
       offense where the evidence does not support a conviction beyond a reasonable doubt of the
       greater offense. Ill. S. Ct. R. 615(b)(3).
¶ 19        The State contends that it proved the elements of misdemeanor unlawful use of a weapon
       because the handgun was not broken down, contained live rounds, and was immediately
       accessible since Officer Jones found the handgun sitting in the driver’s seat of the vehicle.
       Officer Combs, however, testified that he initially found the gun encased in the closed center
       console of the car. Only after recovering the gun did he place it on the driver’s seat for the
       evidence technician, Officer Jones. No other testimony was presented on whether the weapon
       was immediately accessible. Based on the record, we cannot say that the evidence at trial
       proved beyond a reasonable doubt that the gun was loaded and was immediately accessible.
       See People v. Holmes, 241 Ill. 2d 509, 523 (2011). Harris’s conviction on count I is reversed.
¶ 20        Harris next contends that this court should vacate his conviction under count III because
       it requires proof that Harris had a loaded, uncased firearm “on or about his person” upon a
       public street, and the only evidence supporting this element was his statement to police.
       “[P]roof of an offense requires proof of two distinct propositions or facts beyond a
       reasonable doubt: (1) that a crime occurred, i.e., the corpus delicti; and (2) that the crime was
       committed by the person charged.” People v. Sargent, 239 Ill. 2d 166, 183 (2010). However,
       proof of the corpus delicti may not rest solely on a defendant’s statement or confession.
       People v. Furby, 138 Ill. 2d 434, 446 (1990). If defendant’s statement is part of the corpus
       delicti, the State must also present independent evidence corroborating the statement. People
       v. Cloutier, 156 Ill. 2d 483, 503 (1993). This evidence itself need not prove the crime beyond
       a reasonable doubt, but must tend to confirm the elements of defendant’s statement. Sargent,
       239 Ill. 2d at 183-84. “If the defendant’s confession is corroborated, the corroborating
       evidence may be considered together with the confession to determine whether the crime,
       and the fact the defendant committed it, have been proven beyond a reasonable doubt.”
       Sargent, 239 Ill. 2d at 183.
¶ 21        Here, the only evidence corroborating Harris’s statement that he retrieved the gun from
       his car and returned fire on the street was Officer Combs’ testimony. However, his testimony
       was based on a police report detailing an anonymous eyewitness’s statement that he saw
       Harris run to his car, retrieve a black object, then return the black object to the car after the
       shooting. This court in People v. Lesure, 271 Ill. App. 3d 679 (1995), addressed whether an

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       eyewitness’s hearsay statement to police constitutes sufficient evidence to corroborate a
       defendant’s statement for purposes of establishing corpus delicti. In Lesure, at the hearing
       on defendant’s motion to quash arrest and suppress evidence, defense counsel objected to
       portions of testimony as hearsay and the trial court ruled that any hearsay evidence would be
       admitted solely for consideration of the motions, and not for purposes of trial. Lesure, 271
       Ill. App. 3d at 681-82. However, the only evidence corroborating the defendant’s statement
       that he possessed a rifle was the testimony of a police officer stating that a man told him the
       defendant pointed a rifle at him and threatened to kill him. The man did not testify at trial.
       Lesure, 271 Ill. App. 3d at 682. The court held that such hearsay evidence “totally fails to
       satisfy the State’s burden of proof.” Lesure, 271 Ill. App. 3d at 682. Accordingly, we hold
       that the anonymous eyewitness’s hearsay statement to Officer Combs was not sufficient to
       corroborate Harris’s statement for purposes of proving corpus delicti.
¶ 22        The State disagrees, arguing that People v. Anderson, 42 Ill. App. 3d 1040 (1976), allows
       such evidence to corroborate a defendant’s statement. In Anderson, the defendant was
       convicted for unlawful use of a weapon. At the hearing on defendant’s motion to suppress,
       Officer Moisan testified after refreshing his recollection from the case report. He stated that
       a cab driver flagged him down and said that a man with a gun threatened him at 115th Street
       and Michigan Avenue. The cab driver and the man had an altercation in a parking lot and the
       man pulled open his jacket, brandished a weapon, and threatened bodily harm. The cab driver
       further stated that the offender was driving a vehicle about a quarter of a block ahead. Officer
       Moisan made a U-turn and headed in that direction. He came upon a station wagon at 119th
       and Michigan and stopped the vehicle. While performing a custodial search of the defendant,
       the officer found no weapon. The cab driver came up and insisted he had been threatened
       with a gun, so the officer asked the three other people in the station wagon to get out of the
       car. The officer asked one of the occupants, Deron Jefferson, to open her purse and inside
       he found a gun. Anderson, 42 Ill. App. 3d at 1041.
¶ 23        The trial court denied the motion to suppress and defense counsel stipulated to the
       evidence produced at the hearing. Anderson, 42 Ill. App. 3d at 1041. Officer Moisan then
       continued his testimony. He testified that after the discovery of the gun, the defendant and
       Jefferson were arrested and taken to the station. After receiving his Miranda warnings, the
       defendant admitted that the gun found in Jefferson’s purse belonged to him and he had
       threatened the cab driver after an argument. He also admitted that he might have displayed
       the gun when he pulled his jacket open and that he gave the gun to Jefferson. Id. Jefferson
       testified that she had left her purse on the car seat while loading groceries into the car, and
       the first time she saw the gun was when Officer Moisan opened her purse. Anderson, 42 Ill.
       App. 3d at 1042. Neither the defendant nor the cab driver testified at trial.
¶ 24        The defendant argued on appeal that since the gun was recovered in Jefferson’s purse and
       not on his person, no evidence established that he possessed the weapon and committed
       unlawful use of a weapon other than his admissions made at the police station. Anderson, 42
       Ill. App. 3d at 1043. The Anderson court disagreed, finding that Officer Moisan’s testimony
       corroborated the defendant’s admissions. Id. Furthermore, the gun was found in Jefferson’s
       purse and the defendant had admitted that he gave the gun to Jefferson. It could be inferred

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       from the evidence that the defendant had possession of the gun at one time. Id. The court
       held that the corpus delicti of the crime was proved beyond a reasonable doubt by extrinsic
       evidence other than the defendant’s testimony. Id.
¶ 25        In Anderson, however, the cab driver who was the victim was present and reiterated his
       allegation that he had been threatened with a gun when Moisan stopped the defendant’s
       vehicle and searched its occupants. Furthermore, defense counsel stipulated to the hearsay
       evidence corroborating the defendant’s statement. Anderson, 42 Ill. App. 3d at 1041, 1043.
       Our case is distinguishable in that the statement was made by a witness, not the victim, and
       the anonymous witness did not make his allegations in front of Harris. Also, Harris’s counsel
       did not stipulate to the substance of the anonymous witness’s statement to Officer Combs.
       We are not persuaded that Anderson supports the State’s argument here.
¶ 26        The State also argues that we should consider the hearsay statement because Combs’
       testimony was brought out by Harris’s trial counsel in his case in chief, and no one objected
       to the introduction of this evidence. “[W]hen hearsay evidence is admitted without an
       objection, it is to be considered and given its natural probative effect.” People v. Banks, 378
       Ill. App. 3d 856, 861 (2007). However, the probative effect of a statement given to police by
       an anonymous witness is minimal without evidence corroborating the witness’s information.
       See People v. Nitz, 371 Ill. App. 3d 747, 751-52 (2007). Here, the only evidence
       corroborating the hearsay statement was the fact that Officer Combs found a gun in Harris’s
       car. No other witness claimed to have seen Harris on the street with the weapon. More
       importantly, the witness’s statement to Officer Combs, no matter how it was introduced by
       counsel, is a hearsay statement. As we articulated in Lesure, “[s]uch evidence totally fails to
       satisfy the State’s burden of proof” in establishing corpus delicti. Lesure, 271 Ill. App. 3d
       at 682.
¶ 27        Harris next argues that the aggravated unlawful use of a weapon (AUUW) statute is
       unconstitutional because it criminalizes conduct protected by the second amendment right
       to bear arms. Due to our disposition of this appeal, we need not consider his constitutional
       argument at this time.
¶ 28        Harris’s final contention is that this court should vacate a $5 court system fee assessed
       to him pursuant to section 5-1101(a) of the Counties Code (55 ILCS 5/5-1101(a) (West
       2006)). He argues that the plain language of the statute limits application of the fee to
       violations of the Illinois Vehicle Code (625 ILCS 5/1-100 et seq. (West 2006)), and he was
       not convicted of such a violation. The State agrees that the fee should be vacated because
       Harris was not convicted of violating the Illinois Vehicle Code. Therefore, we order that the
       $5 court system fee be vacated.
¶ 29        For the foregoing reasons, the judgment of the circuit court is reversed. We also vacate
       the $5 court system fee.

¶ 30      Reversed.




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