                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Dismuke, 2013 IL App (2d) 120925




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v.
Caption                    ANTWON L. DISMUKE, Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-12-0925


Filed                      June 19, 2013


Held                       Defendant’s motion to dismiss his prosecution for unlawful possession
(Note: This syllabus       of a weapon by a felon and being an armed habitual criminal was properly
constitutes no part of     granted based on the State’s violation of the compulsory-joinder and
the opinion of the court   speedy-trial statutes, since the charges arose from defendant’s possession
but has been prepared      of cannabis and a handgun, both items were discovered during the same
by the Reporter of         search at the same place, for purposes of the compulsory-joinder statute,
Decisions for the          defendant committed a single act and both charges should have been
convenience of the         brought in a single prosecution, but the weapon charge was not brought
reader.)
                           until after the 160-day speedy-trial period for the initial charge based on
                           possession of cannabis had expired.


Decision Under             Appeal from the Circuit Court of Kane County, No. 10-CF-2605; the
Review                     Hon. David R. Akemann, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
Appeal                       Bauer and Mary Beth Burns, both of State’s Attorneys Appellate
                             Prosecutor’s Office, of counsel), for the People.

                             Thomas A. Lilien and Kim M. DeWitt, both of State Appellate
                             Defender’s Office, of Elgin, for appellee.


Panel                        JUSTICE ZENOFF delivered the judgment of the court, with opinion.
                             Justices Hutchinson and Jorgensen concurred in the judgment and
                             opinion.


                                                OPINION

¶1         Defendant, Antwon L. Dismuke, was indicted for being an armed habitual criminal (720
        ILCS 5/24-1.7(a) (West 2008)) and for unlawful possession of a weapon by a felon (720
        ILCS 5/24-1.1(a) (West 2008)). The trial court granted defendant’s motion to dismiss the
        charges. The State appeals pursuant to Illinois Supreme Court Rule 604(a)(1) (eff. July 1,
        2006). We affirm.

¶2                                        BACKGROUND
¶3          On November 19, 2009, Aurora police and special agents of the Bureau of Alcohol,
        Tobacco, and Firearms executed a search warrant at defendant’s residence and arrested
        defendant and 10 others present at the time. The search warrant was aimed at recovering a
        firearm, ammunition, and proof of defendant’s residency there. Items recovered during the
        search included a loaded handgun (found under the living room couch), an empty .380-
        caliber magazine, several containers of cannabis (found in three plastic bags in the kitchen
        and in a mason jar in the living room), and proof of defendant’s residency.
¶4          On November 20, 2009, defendant was charged with misdemeanor possession of
        cannabis. Defendant was booked and fingerprinted, and he posted bond. On December 1,
        2009, the cannabis recovered was sent to the Illinois State Police forensic lab. Thereafter, on
        March 30, 2010, defendant filed a written demand for a speedy trial.
¶5          With respect to the handgun recovered in the search, on November 25, 2009, an Aurora
        police department evidence technician lifted two latent fingerprints from the handgun and
        returned them to evidence storage. On July 15, 2010, the technician notified an Aurora police
        investigator that he had recovered a latent fingerprint1 from the handgun. On September 1,


                1
                It is not clear from the record whether the technician noted that there were two prints lifted
        or whether, at that point, the technician believed that only one of the prints was suitable for
        comparison.

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     2010, the police investigator retrieved defendant’s fingerprints from the booking sergeant and
     sent them, with the latent prints recovered from the weapon, to the Illinois State Police
     forensic lab. A forensic scientist generated a report on September 16, 2010, indicating that
     a comparison of the suitable latent print recovered from the handgun revealed that it was
     made by defendant. The Aurora police investigator received the forensics report on
     September 22, 2010. On October 25, 2010,2 defendant was indicted for being an armed
     habitual criminal (a Class X felony) and for unlawful possession of a weapon by a felon (a
     Class 2 felony). Defendant filed a speedy-trial demand.
¶6       For the next year and a half, defendant, alternately represented by the multiple defenders
     division3 and private counsel, and appearing pro se, moved several times to dismiss the gun-
     related charges on compulsory-joinder and speedy-trial grounds. After the trial court denied
     defendant’s first motion to dismiss, he filed three pro se motions to dismiss (one was entitled
     a supplemental motion). With respect to each motion, the court granted the State’s motion
     to strike because the issues had already been litigated.
¶7       Ultimately, on July 6, 2012, defendant, represented by private counsel, filed the motion
     to dismiss at issue here. The trial court heard argument on the motion on July 18, 2012, and
     took the matter under advisement. Relying heavily on People v. Hunter, 2012 IL App (1st)
     092681, the court granted defendant’s motion to dismiss in a written memorandum opinion
     entered on August 10, 2012. The State timely appeals.

¶8                                          ANALYSIS
¶9       Section 103-5 of the Code of Criminal Procedure of 1963 (Code of Criminal Procedure)
     (725 ILCS 5/103-5 (West 2008)) contains the speedy-trial statute, which directs that a
     defendant who was in custody and is subsequently released on bail shall be tried within 160
     days from the date he or she filed a written demand for trial. 725 ILCS 5/103-5(b) (West
     2008); People v. Hunter, 2013 IL 114100, ¶ 10. A defendant not tried within the statutory
     period must be released from his or her trial obligations and have the charges dismissed. 725
     ILCS 5/103-5(d), 114-1(a)(1) (West 2008); Hunter, 2013 IL 114100, ¶ 10. The compulsory-
     joinder statute is found in section 3-3 of the Criminal Code of 1961 (Criminal Code) (720
     ILCS 5/3-3 (West 2008)), which “requires the State to prosecute all known offenses within
     the jurisdiction of a single court in a single criminal case ‘if they are based on the same
     act.’ ” Hunter, 2013 IL 114100, ¶ 10 (quoting 720 ILCS 5/3-3(b) (West 2008)). Our supreme
     court has explained that the interplay between the speedy-trial and compulsory-joinder
     statutes requires that, if multiple charges are subject to compulsory joinder, “the speedy-trial
     period begins to run when the speedy-trial demand is filed, even if the State brings some of


             2
             The indictment is file-stamped October 25, 2010. The indictment was returned on October
     15, 2010. The trial court found that the State brought the additional charges against defendant on
     October 15, 2010.
             3
              The trial court appointed the “MDD” after an assistant public defender informed it of a
     conflict due to the involvement of codefendants in the case.

                                                -3-
       the charges at a later date.” (Internal quotation marks omitted.) Hunter, 2013 IL 114100,
       ¶ 10.
¶ 10       Here, the State argues that compulsory joinder was not required, because the gun-related
       charges were not “based on the same act” as the cannabis charge–within the meaning of
       section 3-3(b) of the Criminal Code. The State raises no argument regarding the applicability
       of the speedy-trial statute if we conclude that compulsory joinder applies. It is undisputed
       that, if compulsory joinder applies, the speedy-trial period began to run when defendant filed
       a written demand for trial in the cannabis case. Also undisputed is the fact that, when the
       State brought the gun-related charges, the 160-day speedy-trial period had expired.
       Accordingly, the question we must decide is whether compulsory joinder applies. The issue
       presents a legal question and the facts are undisputed; therefore, our review is de novo. See
       Hunter, 2013 IL 114100, ¶ 12 (using de novo review in similar circumstances).
¶ 11       In the trial court, the parties argued whether the appellate court’s decision in Hunter,
       2012 IL App (1st) 092681, governed. At that time, a petition for leave to appeal was pending
       in our supreme court. Not long after briefing was completed in the instant case, our supreme
       court issued its decision in Hunter, 2013 IL 114100. We agree with the trial court that the
       facts in Hunter are “strikingly similar” to the facts in the present case.
¶ 12       In Hunter, the State charged the defendant with cannabis possession, and the defendant
       filed a written demand for trial. Hunter, 2013 IL 114100, ¶ 5. More than 160 days later, the
       grand jury returned a six-count indictment against the defendant, including one count of
       being an armed habitual criminal, four counts of unlawful use of a weapon by a felon, and
       the original cannabis charge. Hunter, 2013 IL 114100, ¶ 6. All six counts were based on
       evidence retrieved in a search incident to an arrest following police surveillance of the
       defendant selling drugs from the vestibule of a building. Hunter, 2013 IL 114100, ¶ 3. The
       recovered evidence included cannabis and a handgun found in the vestibule near the
       defendant and another handgun found in a staircase in the vestibule about five feet from the
       defendant. Hunter, 2013 IL 114100, ¶ 3. The trial court granted defendant’s motion to
       dismiss the gun-related charges on compulsory-joinder and speedy-trial grounds. The State
       appealed, and the appellate court affirmed. Hunter, 2013 IL 114100, ¶ 7.
¶ 13       Our supreme court allowed the State’s petition for leave to appeal and affirmed. Hunter,
       2013 IL 114100, ¶ 1. Our supreme court began its analysis by looking at the plain language
       of the phrase “based on the same act” in the compulsory-joinder statute in section 3-3(b) of
       the Criminal Code, noting that the word “ ‘act’ is generally regarded as ambiguous.” Hunter,
       2013 IL 114100, ¶ 16. The court observed that the legislature’s purpose in enacting the
       compulsory-joinder statute was to “ ‘prevent the prosecution of multiple offenses in a
       piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process.’ ” Hunter,
       2013 IL 114100, ¶ 18 (quoting People v. Quigley, 183 Ill. 2d 1, 7 (1998)). The court
       examined the committee comments for section 3-3, which explained that the phrase “the
       same act” was “designed to describe the situation in which several persons are affected by
       only one act of the defendant, such as *** the stealing, in a single container, of several
       articles of property belonging to different persons; or violating by one act two different
       statutory provisions.” (Internal quotation marks omitted.) Hunter, 2013 IL 114100, ¶ 18. The
       court stated that it had never given the phrase–“based on the same act”–a “hypertechnical

                                                -4-
       interpretation to create multiple acts based on discrete moments in time.” Hunter, 2013 IL
       114100, ¶ 18. Because both of the handguns and the cannabis had been discovered “during
       the same search, at the same place, and at the same time,” the court held that the “defendant’s
       simultaneous possession of cannabis and handguns was the same ‘act’ pursuant to the
       compulsory joinder statute because multiple offenses arose from this one act.” Hunter, 2013
       IL 114100, ¶ 20.
¶ 14       Here, we conclude that, under Hunter, defendant’s possession of cannabis and of the
       handgun was the same act.4 In both cases, the handguns that formed the bases of the later-
       filed charges were found during the same searches at the same times and places as the
       cannabis that resulted in the original charges. As in Hunter, defendant committed a single
       act within the meaning of the compulsory-joinder statute, and the State was required to
       charge him with all of the offenses arising therefrom in a single prosecution. Defendant’s
       written demand for trial in the cannabis case commenced the applicable 160-day speedy-trial
       period. See Quigley, 183 Ill. 2d at 13 (explaining that, when additional charges subject to
       compulsory joinder are brought, the speedy-trial period is the same as that applied to the
       original charges). Accordingly, because the State brought the gun-related charges beyond this
       period, the trial court properly granted defendant’s motion to dismiss on speedy-trial
       grounds.
¶ 15       The State argues that reliance on Hunter is “undermine[d]” because, unlike in Hunter,
       defendant here admitted that some of the cannabis was his. Thus, according to the State, the
       cannabis charge was based on actual possession and could not be the same act as the
       constructive possession of the handgun. As did the trial court, we disagree.
¶ 16       “To sustain a criminal conviction for the unlawful possession of a controlled substance,
       the State must prove the identity of the substance in question, the accused had knowledge the
       substance was present, and he or she had actual or constructive possession of the substance.”
       Grames v. Illinois State Police, 254 Ill. App. 3d 191, 203 (1993). Thus, actual possession and
       constructive possession are not two distinct offenses; rather, they are two theories under
       which a defendant may be proved guilty of the offense of possession. A defendant is said to
       have had actual possession when he or she “exercise[d] immediate and exclusive dominion
       or control over the illicit material”; however, the defendant need not have been actually
       touching the material. People v. Givens, 237 Ill. 2d 311, 335 (2010). The State may prove
       actual possession with testimony showing “some form of dominion over the unlawful
       substance, such as trying to conceal it or throwing it away.” People v. Love, 404 Ill. App. 3d
       784, 788 (2010). Absent actual possession, a “defendant has constructive possession over a
       controlled substance when he or she has the intent and capability to maintain control and
       dominion over the controlled substance.” People v. Eghan, 344 Ill. App. 3d 301, 307 (2003).

               4
                We note the State’s argument that the appellate court’s decision in Hunter was poorly
       reasoned, especially the “single container” analogy. See Hunter, 2012 IL App (1st) 092681, ¶ 29.
       Given our supreme court’s discussion approving of this analogy (Hunter, 2013 IL 114100, ¶ 19), we
       do not address this argument. Similarly, we decline the State’s request to consider its elements-based
       approach to compulsory joinder, as the argument was not only procedurally defaulted, but also
       rejected by our supreme court (Hunter, 2013 IL 114100, ¶¶ 21-22).

                                                    -5-
       The State may prove constructive possession through evidence of the defendant’s
       “[h]abitation in or rental of the premises where narcotics are discovered.” People v. Blue, 343
       Ill. App. 3d 927, 939 (2003).
¶ 17        In the present case, the State asserts that defendant “admitted that the cannabis was his.”
       At the hearing on defendant’s motion to dismiss, the State argued that defendant admitted
       “to possession of the marijuana.” The trial court’s opinion referred to defendant’s admission
       of “ownership.” This alleged admission, while relevant to the offense of possession
       generally, has no relevance exclusive to either theory. For example, defendant’s alleged
       admission could have established his knowledge of the presence of cannabis in his residence
       (an element of possession generally); the admission could have been evidence of defendant’s
       actual physical dominion over the cannabis (for actual possession); or the admission could
       have been a reflection of defendant’s acknowledgment of his control over the premises (for
       constructive possession). Thus, defendant’s admission did not establish that defendant’s
       possession of the cannabis was actual possession.
¶ 18        Moreover, regardless of whether the cannabis possession was actual or constructive,
       defendant’s possession of the handgun and the cannabis was “ ‘committed’ ” at the time of
       his arrest. See Hunter, 2013 IL 114100, ¶ 19 (“ ‘[A] possession crime is “committed” at the
       time of the offender’s arrest.’ ” (quoting People v. Jenkins, 383 Ill. App. 3d 978, 986
       (2008))). This simultaneous possession of both the cannabis and the handgun was a single
       act. The fact that possession with respect to the cannabis might be proved differently than
       possession with respect to the handgun does not compel the conclusion that there were two
       distinct acts. See Hunter, 2013 IL 114100, ¶ 18 (reviewing the committee comments for
       section 3-3, which explained that one of the situations encompassed by the phrase “the same
       act” was where a defendant violated two different statutory provisions by one act).
¶ 19        Significantly, the State never explains how defendant’s purported actual possession of
       the cannabis would undermine reliance on Hunter. While Hunter involved a theory of
       constructive possession, we see no reason why the court’s holding would not apply to a
       theory of actual possession. The holding in Hunter was premised on simultaneous possession
       of various items of contraband and was not contingent upon a particular theory of possession.
       The court stated:
                “In sum, defendant simultaneously possessed the cannabis and two handguns, and
            this contraband was discovered during the same search, at the same place, and at the
            same time. Based on these facts, we conclude that defendant committed a single physical
            act within the meaning of the compulsory joinder statute.” Hunter, 2013 IL 114100, ¶ 27.
¶ 20        We also note, as defendant points out, that the State took the position in the court below
       that defendant made several admissions linking himself to the handgun after he was
       confronted with the fingerprint evidence. Accepting this as true, applying the State’s
       reasoning would compel the conclusion that defendant’s handgun admissions, like his
       cannabis admission, would have converted that act of possession to actual possession. Thus,
       under the State’s reasoning, defendant’s possession of the handgun and the cannabis would
       still be one simultaneous act of possession.
¶ 21        Finally, the State asserts that compulsory joinder should not apply because the State


                                                 -6-
       “could not prosecute” defendant for the gun-related charges “until the *** lab had processed
       the fingerprints, and identified the one latent print as” defendant’s. Section 3-3(b) of the
       Criminal Code provides that “[i]f the several offenses are known to the proper prosecuting
       officer at the time of commencing the prosecution and are within the jurisdiction of a single
       court, they must be prosecuted in a single prosecution, *** if they are based on the same act.”
       720 ILCS 5/3-3(b) (West 2008). Thus, one requirement of compulsory joinder is the State’s
       knowledge of the offenses at issue when it charged defendant with cannabis possession.
¶ 22       We note that the State raises no argument regarding the trial court’s finding that the State
       “unquestionably became aware of [the gun-related charges] upon the initial search” of
       defendant’s residence. The search warrant was aimed at recovering evidence of a firearm,
       ammunition, and defendant’s residency, and those items were recovered during the search
       on November 19, 2009. At a minimum, the State knew of the possibility of the gun-related
       charges when it charged defendant with cannabis possession. Under the facts of this case, this
       knowledge was sufficient to trigger compulsory joinder under section 3-3(b). See People v.
       Hiatt, 229 Ill. App. 3d 1094, 1097 (1992) (in a child pornography case, rejecting the State’s
       argument that it did not know of the possibility of charges stemming from photographs
       discovered in the same search as a videotape, on which charges previously had been
       brought).
¶ 23       We are cognizant that 10 other persons were present in defendant’s residence during the
       search when the handgun was seized and that the State elected to wait to bring charges until
       it had the fingerprint evidence. Nonetheless, the solution to the dilemma was not to ignore
       the speedy-trial statute; indeed, section 103-5(c) of the Code of Criminal Procedure
       anticipates such situations by allowing for extensions of the speedy-trial period. 725 ILCS
       5/103-5(c) (West 2008) (“If the court determines that the State has exercised without success
       due diligence to obtain evidence material to the case and that there are reasonable grounds
       to believe that such evidence may be obtained at a later day the court may continue the cause
       on application of the State for not more than an additional 60 days.”). Thus, had the State
       legitimately needed additional time, it could have requested such from the trial court. The
       record, however, contains no application by the State for additional time. Nor, we might add,
       does the record reflect the statutorily required due diligence by the State. See People v.
       Battles, 311 Ill. App. 3d 991, 1001 (2000) (holding that the State failed to meet its burden
       of showing due diligence under section 103-5(c), where the State merely alleged lab backlog
       without showing what it did to overcome the backlog). By November 25, 2009, within six
       days of the execution of the search warrant, the State had the handgun, defendant’s
       fingerprints, and a latent print recovered from the handgun.5 Yet, this evidence was not even
       submitted to the Illinois State Police lab until September 1, 2010, more than nine months
       later. Accordingly, we reject the State’s argument that compulsory joinder does not apply due
       to the State’s lack of knowledge.



               5
                 Presumably, given that the 10 other persons present during the execution of the search
       warrant at defendant’s home were also arrested on November 19, 2009, the police were in possession
       of their fingerprints as well.

                                                  -7-
¶ 24   For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

¶ 25   Affirmed.




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