                                         2015 IL App (1st) 132176

                                                                                    THIRD DIVISION
                                                                                        July 15, 2015


     No. 1-13-2176


     THE PEOPLE OF THE STATE OF ILLINOIS,                 )      Appeal from the
                                                          )      Circuit Court of
            Plaintiff-Appellee,                           )      Cook County
                                                          )
     v.                                                   )      No. 12 CR 17000
                                                          )
     DANIEL SMITH,                                        )      Honorable
                                                          )      James Michael Obbish,
            Defendant-Appellant.                          )      Judge Presiding.

     JUSTICE MASON delivered the judgment of the court, with opinion.
     Justice Lavin concurred in the judgment and opinion.
     Justice Hyman dissented, with opinion.


                                                OPINION


¶1          Following a bench trial, defendant Daniel Smith was convicted of aggravated unlawful

     use of weapon (AUUW) and was sentenced to one year of probation. Smith appeals, claiming

     that the State failed to establish the corpus delicti of the charged crime because there was no

     independent evidence corroborating his statements claiming ownership of the bag containing the

     weapon. Smith also challenges the sufficiency of the evidence claiming there was no evidence

     that he knowingly possessed the gun. Because we find that the State offered sufficient evidence

     to establish the corpus delicti and Smith's guilt of AUUW beyond a reasonable doubt, we affirm.

     We agree with the parties that the trial court erroneously assessed a $100 street gang fine because

     there is no evidence in the record identifying Smith as a member of a street gang when he
     No. 1-13-2176

     committed the AUUW offense. Thus, we instruct the clerk of the circuit court to reduce by $100

     the amount of fines originally assessed and modify the order assessing fines, fees and costs to

     reflect the corrected amended total of $760.

¶2                                           BACKGROUND

¶3          On September 2, 2012, Smith was arrested at a Greyhound bus station in Chicago and

     was later charged with six counts of AUUW. At the time of his arrest, Smith was 19 years old

     and did not have a valid firearm owner's identification card. The following relevant evidence was

     adduced at the bench trial.

¶4          On September 2, James Sorrell worked as a bus driver for Greyhound on a route

     originating in St. Louis and ending in Chicago. At a scheduled stop in Markham, Sorrell assisted

     passengers exiting the bus at that stop unload their bags from underneath the bus. Smith was the

     only passenger boarding the bus at Markham. Sorrell verified Smith's bus ticket outside before

     they both boarded the bus–Smith first, followed by Sorrell. Sorrell did not recall whether Smith

     was carrying a bag when he boarded the bus. Through the bus's rearview mirror, Sorrell saw

     Smith sit in the last row on the bus and the bus then departed Markham en route to Chicago.

¶5          At 10:30 a.m., the bus arrived at the Greyhound bus station located at 620 West Harrison

     Street in Chicago. After all passengers exited the bus, Sorrell conducted a "post-trip" or "sweep"

     where he checked the bus to ensure that no passengers remained on the bus and no personal

     belongings were left behind by passengers. During the inspection, Sorrell found a red and black

     backpack on the last aisle seat on the passenger side of the bus. The bag's zipper was unzipped,

     and Sorrell saw what he believed to be the butt of a stainless steel .45-caliber handgun inside the

     bag. Sorrell picked the bag up and carried it off the bus planning to surrender it to his supervisor

     because he believed it contained a gun. After Sorrell walked off the bus, Smith approached him



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     and said the bag was his. Sorrell asked Smith what was inside the bag without revealing the bag's

     contents and Smith answered "nothing but a BB gun." Sorrell responded that the gun looked like

     a real gun and he was turning the bag in to his supervisor. The conversation then ended and

     Sorrell walked to his supervisor's office.

¶6          Sorrell informed his supervisor that he believed he found a gun on the bus and gave her

     the bag with the gun still inside. Sorrell's supervisor contacted Greyhound's security office

     regarding the possible weapon found on the bus and security officer Michael Pinzine, who was

     also an off-duty Chicago police officer, responded to the call. After Officer Pinzine arrived at the

     supervisor's office, he removed the gun from inside the bag and cleared the gun of ammunition.

     Officer Pinzine asked Sorrell where the passenger who owned the bag was and Sorrell responded

     that Smith was still standing by the bus.

¶7          Officer Pinzine elaborated that after he looked inside the bag, he saw the word "Ruger"–

     the name of a gun manufacturer–on the side of the gun. Officer Pinzine described the handgun as

     a semiautomatic, bluesteel handgun that had one live round in its chamber. After Sorrell

     identified Smith as the passenger claiming to own the bag, Officer Pinzine approached Smith,

     who was outside sitting by a garbage can next to where buses pull into the station. Officer

     Pinzine identified himself as a Chicago police officer, placed Smith under arrest and took him to

     the security office while waiting for on-duty police officers to arrive. The parties stipulated that

     Smith was under the age of 21 at the time of his arrest. The State then rested.

¶8          Smith moved for a directed finding asserting that the State offered his statement claiming

     to own the bag with the gun inside as the only evidence connecting him to the bag and gun,

     which was insufficient evidence to convict him. The trial court denied the motion and Smith

     testified on his own behalf.



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¶9            According to Smith, he boarded the bus at Markham with a single camouflage duffel bag

       about three feet in length and kept the bag on his lap the entire bus ride from Markham to

       Chicago. Smith stated that the bus was about full and he sat in the fourth or fifth row, but not in

       the last row. Smith saw the bag "that everyone is talking about" as soon as he boarded the bus

       because it was on a platform area at the front of the bus. Smith noticed the bag but had nothing to

       do with it, and he remained in his seat the entire bus ride to Chicago.

¶ 10          When the bus arrived in Chicago, Smith exited the bus with his one camouflage bag.

       After he was off the bus, Smith saw a huddle of three bus drivers–including Sorrell–standing in a

       circle all looking inside a bag. Smith approached the huddle because he was "being nosy" and

       told the group "that bag looks like a bag that I have." Smith testified that he did not have the bag

       with him at that time, but he had a bag at home that was similar to the bag the group was

       discussing.

¶ 11          Smith further testified that Sorrell then showed him the gun and asked him, "What is

       this?" Smith answered that it looked like a BB gun. Sorrell informed him that if the bag was his,

       he needed to go inside to claim it. Smith shook his head and said "it's not my bag." Smith then

       sat on his bag located near a garbage can. Shortly thereafter, Officer Pinzine approached him,

       handcuffed him and searched him, finding his bus ticket. Officer Pinzine took Smith to an office

       inside the bus station and emptied the bag, showing its contents to Smith, who claimed to see a

       state identification card belonging to someone else, another bus ticket and mail belonging to

       someone else.

¶ 12          The defense rested and the State called Officer Pinzine in rebuttal. Officer Pinzine

       testified that he did not find an identification card belonging to another individual inside the bag.

       Officer Pinzine did find a piece of mail inside the bag, but he did not believe he showed it to



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       Smith. According to Officer Pinzine, neither he nor his partner emptied the contents of the bag in

       front of Smith.

¶ 13          At the close of evidence and argument, the trial court found Smith guilty of one count of

       AUUW–that he knowingly carried in a vehicle a firearm and was under 21 years of age when he

       was in possession of the firearm. 720 ICLS 5/24-1.6(a)(1), (a)(3)(I) (West 2012). The trial court

       explained that Sorrell's testimony was "very credible," but the same could not be said about

       Smith's testimony. The trial court elaborated that "Smith's testimony sadly was not credible at all

       compared to the testimony of Sorrell. *** Smith's statements really defy common sense," and the

       court found it unlikely that he would have made the statements he claimed to have made to the

       group inspecting the backpack. Because there was only one gun, the trial court stated that there

       would only be one guilty finding.

¶ 14          Smith filed a motion for acquittal or in the alternative a new trial, asserting that the State

       failed to prove him guilty beyond a reasonable doubt and the corpus delicti of the crime because

       the State only offered as evidence his confession that he owned the bag containing the gun,

       which was not independently corroborated with any additional evidence establishing actual or

       constructive possession. The trial court denied Smith's motion reasoning that the corpus delicti

       was the actual gun recovered from the bag. The trial court sentenced Smith to one year of

       probation and assessed fines, fees and costs totaling $860, which included a $100 street gang

       fine. Smith timely appealed.

¶ 15                                              ANALYSIS

¶ 16                                           A. Corpus Delicti

¶ 17          Smith claims that the State failed to prove the corpus delicti of AUUW because it offered

       no proof that a crime was committed independent of his alleged confession. Smith also contends


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       that the State offered no independent corroborating evidence connecting him to the gun and the

       State is prohibited from relying only on his confession as evidence to prove the commission of

       AUUW.

¶ 18          Simply stated, the corpus delicti of an offense is the commission of a crime. People v.

       Lara, 2012 IL 112370, ¶ 17. In criminal proceedings, the State must prove beyond a reasonable

       doubt the following two propositions: (1) a crime was committed, the corpus delicti, and (2) the

       identity of the person who committed the crime. Id. Generally, the State cannot prove the corpus

       delicti solely through the defendant's admission, confession or out-of-court statement and must

       also provide independent corroborating evidence. Id. The independent corroborating evidence

       need only tend to prove, generally, the commission of an offense. Moreover, the independent

       corroborating evidence is not required to be identical to the details of the defendant's admission;

       instead, only some consistency between the two is required tending to confirm and strengthen the

       defendant's admission. Id. ¶ 42. Sufficient corroboration exists where the evidence tends to

       connect the defendant with the crime. Id. ¶ 44.

¶ 19          Here, through Sorrell's and Officer Pinzine's testimony, the State offered sufficient

       corroborating evidence–independent of Smith's statements to Sorrell–tending to prove the

       commission of AUUW, which requires knowing possession of a weapon by an individual under

       21 years of age. 720 ICLS 5/24-1.6(a)(1), (a)(3)(I) (West 2012). Sorrell testified that he found a

       bag on the bus with an object inside he believed to be a gun, and Officer Pinzine's testimony

       confirmed that the object in the bag was a semiautomatic gun with a live round in its chamber.

       Both Sorrell's and Officer Pinzine's testimony established the existence of a gun on the bus.

       Sorrell's testimony also demonstrated Smith's connection to the offense because he observed

       Smith sit in the last seat on the bus, which was the same area where he personally found the bag

       with the gun. Collectively, Sorrell's and Officer Pinzine's testimony was independent evidence

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       No. 1-13-2176

       tending to inspire belief in Smith's admission that he owned the bag containing the gun that was

       found on the bus. See People v. Hannah, 2013 IL App (1st) 111660, ¶¶ 29, 31 (noting "slight

       level of evidence necessary to establish corpus delicti," court found State established offense of

       unlawful possession of a weapon by a felon through the recovered handgun coupled with the

       location where it was recovered and the defendant's confession); People v. Spencer, 2012 IL App

       (1st) 102094, ¶ 22 ("[W]e reject the defendant's contention that consideration of his statement

       regarding the need for a gun would violate the corpus delicti rule. The recovery of the revolver

       from above the kitchen cabinet constituted sufficient evidence to corroborate his incriminating

       statement."). Moreover, because Smith was under 21 years of age, his possession of a gun was

       unlawful.

¶ 20          People v. Lueder, 3 Ill. 2d 487 (1954), cited by Smith as support for his claim that there

       was no proof of corpus delicti, is inapposite. Lueder reversed a conviction finding the corpus

       delicti had not been proved because there was no evidence independent of the defendant's

       confession that someone willfully burned down a building in a cemetery where he worked. Id. at

       489. The only evidence independent of the defendant's confession were the facts that the building

       was burned and defendant worked at the cemetery. Id. Smith asserts Lueder is analogous because

       the State only established that a gun was found on the bus, which was not inherently illegal, but

       failed to establish that Smith was connected to the gun, which would then make possession of the

       weapon unlawful. We disagree. In Lueder, the court found no independent evidence tending to

       show the willful burning of a building, which was a required element to establish the commission

       of the crime. Id. at 489-90. In contrast, apart from the obvious difference in the nature of the

       offenses at issue in the cases, the evidence here demonstrated that Smith, who was not 21 years

       of age, sat on the bus in close proximity to where a gun was found, which tended to show the

       commission of AUUW. Thus, Lueder is readily distinguishable.

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       No. 1-13-2176

¶ 21          We are mindful that only a "slight level of evidence [is] necessary to establish the corpus

       delicti," and we find that the State met that minimal threshold. Hannah, 2013 IL App (1st)

       111660, ¶ 29; see Lara, 2012 IL 112370, ¶ 45 (recognizing that "far less independent evidence"

       is required to corroborate a defendant's confession than to prove the defendant's guilt beyond a

       reasonable doubt). The State offered sufficient independent evidence mainly through Sorrell's

       testimony that adequately corroborated Smith's confession claiming ownership of the bag

       containing the gun, which proved the corpus delicti of AUUW.

¶ 22                                          B. Reasonable Doubt

¶ 23          In a similar claim, Smith next argues that the State failed to prove him guilty of AUUW

       beyond a reasonable doubt because the State offered no evidence establishing that he knowingly

       possessed the gun recovered from the bus. Specifically, Smith claims that the State offered no

       physical evidence connecting him to the bag with the gun inside and offered no testimony that

       anyone saw him carrying the bag or gun. As noted, the parties stipulated that Smith was born on

       October 28, 1992, which satisfies the aggravating factor that he was under 21 years of age when

       he possessed the gun. Thus, consideration of that aggravating factor is not at issue here.

¶ 24          Where a criminal conviction is challenged based on the sufficiency of the evidence, a

       reviewing court, considering all of the evidence in the light most favorable to the prosecution,

       must determine whether any rational trier of fact could have found the essential elements of the

       crime beyond a reasonable doubt. People v. Austin M., 2012 IL 111194, ¶ 107. This standard of

       review applies in all criminal cases regardless of whether the evidence is direct or circumstantial.

       People v. Campbell, 146 Ill. 2d 363, 375 (1992). A defendant may be convicted based entirely on

       circumstantial evidence provided that evidence establishes the elements of the crime beyond a

       reasonable doubt. People v. Pollock, 202 Ill. 2d 189, 217 (2002). We will reverse a conviction



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       No. 1-13-2176

       only "where the evidence is so unreasonable, improbable, or unsatisfactory" as to create a

       reasonable doubt of the defendant's guilt. People v. Wheeler, 226 Ill. 2d 92, 115 (2007).

¶ 25          To sustain a conviction for AUUW, the State must prove that the defendant knowingly

       "[c]arries on or about his or her person or in any vehicle or concealed on or about his or her

       person except when on his or her land *** any pistol, revolver, stun gun or taser or other

       firearm," and the person possessing the weapon, who was not engaged in lawful activities

       prescribed under the Wildlife Code (520 ILCS 5/1.1 et seq. (West 2012)), was under 21 years of

       age. 720 ILCS 5/24-1.6(a)(1), (a)(3)(I) (West 2012). Knowledge and possession are factual

       questions resolved by the trier of fact, and a reviewing court will not disturb those findings

       "unless the evidence is so unbelievable, improbable, or palpably contrary to the verdict that it

       creates a reasonable doubt of guilt." People v. Luckett, 273 Ill. App. 3d 1023, 1033 (1995).

¶ 26          " 'Knowing possession' may be either actual or constructive." People v. Brown, 327 Ill.

       App. 3d 816, 824 (2002). In this case, the gun was not recovered from Smith's actual possession;

       thus, we must determine whether the State offered sufficient evidence that Smith constructively

       possessed the weapon. Hannah, 2013 IL App (1st) 111660, ¶ 28; Spencer, 2012 IL App (1st)

       102094, ¶ 17. The State establishes constructive possession by demonstrating that the defendant:

       (1) knew of the weapon's presence and (2) exercised control over the area where the weapon was

       found. People v. Hunter, 2013 IL 114100, ¶ 19; Hannah, 2013 IL App (1st) 111660, ¶ 28.

       Knowledge is usually established by circumstantial evidence because it is rarely shown by direct

       proof. People v. Fleming, 2013 IL App (1st) 120386, ¶ 74. In fact, constructive possession is

       typically proved entirely through circumstantial evidence. People v. Besz, 345 Ill. App. 3d 50, 59

       (2003). The State may prove the knowledge element by offering evidence regarding the

       defendant's acts, statements or conduct from which a fact finder may infer that the defendant

       knew of the weapon's presence. Fleming, 2013 IL App (1st) 120386, ¶ 75. The State proves the

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       control element by demonstrating that the defendant had the " 'intent and capability to maintain

       control and dominion' over an item, even if he lacks personal present dominion over it." Spencer,

       2012 IL App (1st) 102094, ¶ 17 (quoting People v. Frieberg, 147 Ill. 2d 326, 361 (1992)).

¶ 27          Here, the State offered sufficient circumstantial evidence for a rational trier of fact to

       conclude that Smith had constructive possession of the gun. Contrary to Smith's claim, his

       statements to Sorrell were not the only evidence the State offered at trial. Again, the State offered

       Sorrell's testimony establishing that he found an unzipped bag with what appeared to be the butt

       of a stainless steel .45-caliber handgun inside the bag, which was later confirmed by Officer

       Pinzine to be a loaded gun. The parties do not dispute that Smith was on the bus and exited the

       bus at the last stop in Chicago nor is there any dispute that Smith approached Sorrell after he

       exited the bus. Although he described a different bag, Smith himself testified that he carried a

       bag onto the bus, which he kept on his lap for the duration of the ride. We consider Smith

       approaching Sorrell shortly after Sorrell exited the bus while Sorrell held the bag in his hand

       significant because contrary to Smith's version of events, it supports the reasonable inference that

       Smith recognized the bag as his and wanted Sorrell to return the bag to him. This, in turn, creates

       the reasonable inference that Smith intended to regain control over the bag, which he possessed

       while on the bus. Moreover, the location where Sorrell found the bag–in the last row where he

       observed Smith sit–is also significant because the trier of fact could reasonably infer that while

       Smith rode the bus as a passenger, the gun was immediately accessible to him inside the

       unzipped bag. See People v. Grant, 339 Ill. App. 3d 792, 799 (2003) (testimony that the

       defendant reached back and put something on the seat of a vehicle creates a reasonable inference

       that the defendant had knowledge of the gun and that the gun was in his immediate and exclusive

       control when the gun was found on that same seat).



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       No. 1-13-2176

¶ 28          Furthermore, Smith's statement that nothing was inside the bag but a BB gun also creates

       a reasonable inference of "knowing possession" because that statement–made without being

       shown the actual contents of the bag–implies he knew that a gun was inside the bag. See People

       v. Phillips, 215 Ill. 2d 554, 576 (2005) (once corroborated, a defendant's statement may be

       considered along with the corroborating evidence to determine whether the defendant committed

       the offense beyond a reasonable doubt). Smith's statement also creates a reasonable inference

       that he intended to regain control and possession of his bag and gun because his explanation that

       the object was "nothing" but a BB gun sought to diminish the importance of the object in the

       hope that Sorrell would relinquish the bag to him. We consider Smith's claim that the evidence

       was insufficient because the State offered no testimony establishing that he boarded the bus with

       the bag and that there was no identification in the bag belonging to him irrelevant in light of the

       other circumstantial evidence the State offered proving his knowing possession of the gun.

       Likewise, the presence of other individuals on the bus does not defeat Smith's constructive

       possession of the gun. See People v. Ingram, 389 Ill. App. 3d 897, 901 (2009) (concluding that

       another passenger's accessibility to a gun in a vehicle does not preclude a finding that the

       defendant possessed the gun).

¶ 29          Moreover, it is apparent from the record that the trial court's determination of Smith's

       guilt turned on the credibility of the witnesses. Specifically, the trial court expressly commented

       on Smith's credibility noting that his testimony "sadly was not credible at all compared to the

       testimony of Sorrell" and his explanation regarding his statements to Sorrell "really def[ies]

       common sense." As a court of review, we may not substitute our judgment for that of the fact

       finder regarding the credibility of witnesses because it is the trier of fact's responsibility to fairly

       resolve conflicts in testimony. People v. Rouse, 2014 IL App (1st) 121462, ¶ 53; Campbell, 146

       Ill. 2d at 375; People v. Cooper, 194 Ill. 2d 419, 431 (2000). Consequently, we find no reason to

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       substitute our judgment for the trial court's determination of the witnesses' credibility, especially

       because the record reveals that the trial court was aware of and considered the inconsistencies in

       the witnesses' testimony. People v. Fox, 337 Ill. App. 3d 477, 481 (2003).

¶ 30          In reaching the conclusion that the circumstantial evidence was "unreasonable,

       improbable, and unsatisfactory," our dissenting colleague substitutes his judgment for the

       experienced trial judge. Infra. ¶ 60. But black letter law holds that it is not our function to retry

       the defendant when considering the sufficiency of the evidence. People v. Beauchamp, 241 Ill.

       2d 1, 8 (2011). Our colleague re-assesses the credibility of both Smith's and Sorrell's testimony

       (without ever having had the opportunity to observe either) by deeming Sorrell's conversation

       with Smith to be of a questionable nature (infra ¶ 44) and finding Smith's testimony that he told

       Sorrell he had a similar bag at home to be believable (infra ¶ 52). This is a classic credibility

       determination that belongs to the trier of fact. We find nothing improbable, unconvincing or

       contrary to human experience in Sorrell's testimony that Smith approached him and asked for his

       bag back. People v. Kidd, 2014 IL App (1st) 112854, ¶¶ 29-30. Indeed, we find it likely that 19-

       year-old Smith believed he could approach Sorrell, explain that he had left the bag on the bus

       and ask for it back, particularly since Smith would have had no way of knowing that Sorrell was

       aware of the gun in the bag.

¶ 31          In contrast, in order to credit Smith's version of events, we would have to believe that a

       group of adult Greyhound employees, having ascertained the presence of a weapon in the bag,

       would solicit the opinion of a teenage stranger by showing him the weapon and asking what he

       thought it was. Further, we would have to accept that a trained police officer would empty the

       bag containing the weapon in front of Smith. We are unwilling to indulge such improbabilities in

       order to reverse.



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¶ 32           Considering all of the evidence in the light most favorable to the State, a rational tier of

       fact could have found the elements of AUUW beyond a reasonable doubt. Thus, we affirm

       Smith's conviction because the evidence was not so unreasonable, improbable or unsatisfactory

       as to create a reasonable doubt of Smith's guilt.

¶ 33                                             C. Street Gang Fine

¶ 34           Finally, Smith contends, and the State concedes, that the trial court erroneously assessed

       a $100 street gang fine, which is imposed on defendants who at the time of committing a

       criminal offense are members of a street gang. 730 ILCS 5/5-9-1.19 (West 2012). The State

       acknowledges that the trial court erred in imposing the fine because there was no evidence

       proving Smith belonged to a streetgang when he committed the AUUW offense. We agree.

¶ 35           Under Illinois Supreme Court Rule 615(b)(4), this court has the authority to order the

       circuit court clerk to make necessary corrections without remand. People v. McCray, 273 Ill.

       App. 3d 396, 403 (1995). Accordingly, we instruct the circuit court clerk to amend the fines,

       fees, and costs order to reflect the $100 reduction in fines for a corrected total amount of fines,

       fees, and costs of $760.

¶ 36           The judgment of the trial court is affirmed; the fines, fees, and costs order amended to

       reflect a total of $760 in fines, fees, and costs.

¶ 37           Affirmed as modified.




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¶ 38   JUSTICE HYMAN, dissenting.

¶ 39          While circumstantial evidence may provide the basis for a conviction, (Pollock, supra ¶

       25), and the trier of fact determines the credibility of witnesses and weighs the evidence, it

       remains the duty of this court to review the evidence and, if it is improbable, unsatisfactory, and

       unconvincing to establish a defendant’s guilt beyond a reasonable doubt, to reverse the

       conviction. Review of the evidence here reveals that it is too improbable, unsatisfactory, and

       unconvincing to establish Smith's constructive possession of the gun beyond a reasonable doubt.

       I believe the majority’s opinion stretches the concept of reasonable inferences beyond the

       breaking point. Therefore, I respectfully dissent.

¶ 40          "It is well established that, to warrant conviction of a crime on circumstantial evidence,

       the proof must be of a conclusive nature and tendency, leading on a whole to a satisfactory

       conclusion and producing a reasonable and moral certainty that the accused and no one else

       committed the crime. [Citation.]" People v. Howard, 74 Ill. App. 3d 870, 875 (1979). Moreover,

       where, as here, the State's case is circumstantial, "proof beyond a reasonable doubt requires the

       exclusion of every reasonable hypothesis, based on the evidence or on the absence of evidence,

       which is consistent with defendant's innocence.” Id.

¶ 41          Factual inferences inform the State's evidence against Smith. Inferences themselves,

       however, do not amount to evidence—inferences are the result of reasoning from the evidence.

       People v. Cunningham, 212 Ill.2d 274, 279-80 (2004) ("The guilty finding may be supported not

       only by the evidence, but also by any reasonable inferences that may be drawn from the

       evidence.") Due process requires an inference involving (i) a rational connection between a

       proven fact and the presumed fact; (ii) in which the presumed fact more likely than not flows



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       from the proven fact; and (iii) corroborating evidence of guilt supports the inference. People v

       Funches, 212 Ill. 2d 334, 342-343 (2004) (addressing limits on federal and state legislatures'

       power to "make the proof of one fact or group of facts evidence of the existence of the ultimate

       fact on which guilt is predicated"); see People v. Pomykala, 203 Ill. 2d 198, 203 (2003)

       (inference rests " 'on the strength of the connection between the elemental or ultimate fact

       presumed or inferred and the basic or evidentiary fact.' ") (quoting People v. Hester, 131 Ill.2d

       91, 98, (1989)). If there is no corroborating evidence, the “leap from the prove[n] fact to the

       presumed [fact] must still be proved beyond a reasonable doubt." People v. Hester, 131 Ill. 2d

       91, 100 (1989).

¶ 42          Evidentiary facts must justify an inference of probability as opposed to possibility,

       conjecture, and speculation. See Salinas v. Werton, 161 Ill.App.3d 510, 515 (1987); Consolino v.

       Thompson, 127 Ill. App. 3d 31, 33 (1984) (in product liability context). Possibility, along with

       conjecture and speculation, contains uncertainty and for that reason cannot support the finding of

       the ultimate facts required to support a conviction. See People v. Chew, 45 Ill. App. 3d 1024,

       1028 (1977) (in drawing inference, fact finder must not "abandon the domain of allowable

       inferences or enter the area of speculation"). The fact finder may draw an inference in its

       discretion, but is not required to do so as a matter of law. Funches, 212 Ill. 2d at 340. Thus, even

       though the vital role of inferences in the expeditious resolution of factual questions has been

       recognized in criminal cases, an inference “must not invade the territory of the fact finder to

       determine the existence of the ultimate or elemental fact beyond a reasonable doubt." [Citation.]

       Hester, 131 Ill. 2d at 98-99; Funches, 212 Ill. 2d at 342 (citing County Court v. Allen, 442 U.S.

       140, 156 (1979)).

¶ 43          Here, the State did not introduce into evidence the bag, the piece of mail, or the gun.

       Pinzine mentioned finding a piece of mail in the bag, but this intriguing information was not

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       developed further. The State did not present testimony that the police ran a gun trace or

       attempted to get fingerprints from the gun, even though fingerprints are routinely taken from

       firearms. Where a party fails to present evidence in its possession, an inference attaches that the

       evidence would have been unfavorable to it; see, e.g., People v. Strong, 21 Ill. 2d 320, 325

       (1961), holding that while the State was not obligated to produce a government informant

       witness, the unexplained failure to do so may give rise to an inference against the State. A party

       should not benefit from an evidentiary vacuum of its own doing through a favorable inference.

¶ 44          The pivotal corroborating evidence comes from the testimony of Sorrell placing Smith in

       the last seat on the bus where he found the bag. I am mindful that the trial court found that

       Sorrell's testimony was credible and that Smith's was not. But what emerges from a close

       examination of Sorrell's testimony renders the inferences drawn unsound. Sorrell testified that

       his route was St. Louis to Chicago with a two- to three-minute stopover in Markham. Some

       passengers got off that bus and Sorrell helped them get their bags. Smith was the only passenger

       who boarded in Markham. Sorrell testified that he had a 20- to 30-second interaction with Smith

       while checking Smith's ticket as Smith boarded the bus. Sorrell got on the bus after Smith

       boarded, and he watched Smith in the rear-view mirror as he went to the last seat. Sorrell did not

       remember seeing Smith with any bag, but did remember that Smith had not checked any bags.

       The bus held 55 passengers but Sorrell could not recall how many passengers were on the bus

       that day.

¶ 45          About five minutes after all passengers debarked in Chicago, Sorrell checked the bus for

       personal belongings left behind. Sorrell found the bag on the last seat. He described it as an

       average size red and black backpack; it was unzipped so that its contents were visible. He saw a

       "butt of a weapon" that he described as a handgun. Sorrell picked up the bag from the seat to take

       it to his supervisor. At this point, Smith approached and according to Sorrell, told him that the

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       bag was his. On direct examination, Sorrell was asked: "Did you say anything to him when he

       said that to you? Sorrell answered: "I asked him what was in the bag." Smith answered it was

       "nothing but a BB gun." On cross-examination, Sorrell stated that he did not take the gun out of

       the bag and show Smith the weapon.

¶ 46          Pinzine testified that he responded to Sorrell's supervisor's call for security. Pinzine stated

       that the bag was open and he saw the gun inside the bag. Pinzine searched the bag, unloaded the

       gun and then arrested Smith who was still standing near the bus. About five minutes passed

       between Pinzine's arrival and Smith's arrest. Pinzine described the bag as a "black messenger

       bag/fanny pack." He searched the bag "very briefly" and did not recall anything that "popped

       out." He did, however, remember that he found "a piece of mail and I don't believe I showed it to

       defendant though." On cross-examination, Pinzine stated that Sorrell told him that he (Sorrell)

       showed the gun to Smith and then asked Smith what it was.

¶ 47          Smith testified that after he got off the bus he approached the bus driver who was

       standing with some coworkers: "they were standing like in a circle with the bag in hand, open,

       just everybody just looking in it, so I approached and I looked. I was being nosy. I wanted to see

       what was going on." Smith then stated: "I said, "That bag looks like a bag that I have" and "I

       didn't have it with me. I had a bag at home just that was similar to the bag." The bus driver

       asked, "'What is this?' And he showed me the gun inside of the bag." Smith did not claim that the

       bag was his.

¶ 48          Smith's testimony differed from the State's witnesses in that Smith stated that he sat in the

       fourth or fifth seat, not the last row; he had only a camouflage duffle bag that he held on his lap;

       and, when he got off the bus in Chicago, he saw some people in a "huddle" around a backpack.

       He approached them, remarking that the bag looked like a bag he had at home. The bag was open

       and he stated that what he saw looked like a BB gun.

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¶ 49          The majority believes that Smith's approaching Sorrell supports an inference that "Smith

       recognized the bag as his and wanted Sorrell to return the bag to him." Supra ¶ 28. The majority

       then infers that Smith wanted to "regain control over the bag, which he possessed while on the

       bus." Id. The question arises: if Smith actually was carrying a loaded gun in a bag, would he

       approach a bus driver holding that bag and claim ownership? To infer that Smith would be so

       bold as to think that the bus driver would simply hand a bag with a gun to him does not

       constitute a reasonable inference.

¶ 50          The majority posits that "in order to credit Smith's version of events, we would have to

       believe that a group of adult Greyhound employees, having ascertained the presence of a weapon

       in the bag, would solicit the opinion of a teenage stranger by showing him the weapon and

       asking what he thought it was." Supra ¶ 31. Sorrell stated during direct examination that he

       asked Smith what was in the bag only after Smith approached him. On cross-examination,

       Sorrell denied showing Smith the gun. But Pinzine testified that Sorrell told Pinzine that he

       showed the gun to Smith and then asked him what it was. In any case, the majority characterizes

       the exchange between Smith and Sorrell as "solicit[ing] the opinion" of a young stranger. Neither

       Sorrell, Pinzine, nor Smith testified that anyone "solicited" an opinion; rather, Sorrell and Smith

       both stated that Smith approached Sorrell and initiated a conversation. Pinzine, who only

       interacted with Smith during his arrest, related what Sorrell told him at the time.

¶ 51          The majority also posits that, to believe Smith's version, "we would have to accept that a

       trained police officer would empty the bag containing the weapon in front of Smith." Smith

       testified that he was handcuffed and brought into the security office in the police station. The

       security guard then "pulled everything out and set it down."

¶ 52          Further, Sorrell testified that he was able to see Smith outside near the buses because

       there was a "big glass window" in the office; it follows that Smith was also able to see what was

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       happening in the office; i.e., Pinzine's arrival, search of the bag, and unloading the gun. Is it

       logical that Smith would remain in the immediate area for some five minutes and smoke a

       cigarette knowing that the bag with a loaded gun had been brought into the supervisor's office?

       Thus, the only rational inference that can be drawn from this testimony is that Smith had no

       connection to the bag other than as he testified: he had a similar bag at home and the gun, to him,

       looked like a BB gun.

¶ 53          The majority, relying on Phillips, 215 Ill. 2d at 576, supra ¶ 29, infers Smith's guilty

       knowledge from his having made the statement that nothing was inside the bag but a BB gun

       "without being shown the actual contents of the bag." But, a review of the record indicates that,

       while Sorrell testified that he did not take the gun out of the bag or show Smith the gun, he also

       testified that he had the bag in his hand with the handle of the gun sticking out when Smith

       approached him. Significantly, Sorrell did not state that at any point he closed the bag and

       Pinzine stated the bag was open and he could see the gun. It follows that it must have been

       unzipped with the handle of the gun in plain view when Smith approached.

¶ 54          Whether the bag was in Sorrell's hand, as stated by Sorrell, or on the ground, as stated by

       Smith, is irrelevant. Highly relevant, however, is that the evidence does not support the

       conclusion that Smith never saw the gun, a conclusion from which the majority leaps to

       "knowing possession." Supra ¶ 29.

¶ 55          The majority also infers that by calling the gun a BB gun Smith "sought to diminish the

       importance of the object in hopes that Sorrell would relinquish the bag to him." There is much

       room for reasonable disagreement with this so-called inference, which in my view, constitutes

       nothing more than merely conjecture and a conclusion drawn on hindsight, not a reasonable

       inference. Again, basing inferences on subjective judgments about what an individual may or

       may not have intended easily can lead to a spurious conclusion. Unfortunately for Smith, the

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       majority has made that subjective judgment about Smith's personality and motivation by

       inferring an ulterior purpose for Smith's BB gun comment.

¶ 56          Further, relying on Grant, 339 Ill. App. 3d at 799, supra ¶ 28, the majority concludes that

       the location where Sorrell found the bag supports an inference that the gun was immediately

       accessible to Smith while he was a passenger. Before addressing Grant, which is distinguishable

       on its facts, it is worth observing that nothing in the record indicates that Sorrell checked the

       back seat while unloading passengers in Markham. Nor did Sorrell testify to seeing the bag on

       the seat when he saw Smith in the rearview mirror. It is equally reasonable, therefore, to infer

       that the bag was there when Smith got on the bus, and Sorrell misheard Smith when Smith

       approached him about the bag. Presence at the scene of an offense is insufficient, without more,

       to establish guilt beyond a reasonable doubt; opportunity alone is not sufficient to sustain a

       conviction where the prosecution is unable to show who committed the crime, unless it can also

       show that no one else had the opportunity to commit the offense. People v. Howard, 74 Ill. App.

       3d 870, 877 (1979).

¶ 57          Unlike the facts here, in Grant the police officer actually saw the defendant reach back

       and put something on the seat when she asked him to get out of the car. Id. at 798-799. The

       uncased, loaded weapon was found on the same seat, and the court inferred that the defendant

       had both knowledge of the gun and immediate and exclusive control. Id. at 799. Sorrell did not

       remember seeing Smith carrying a bag on board. He found the bag on the last seat where he

       thought Smith was sitting, based on his observation in the rear-view mirror at the time Smith got

       on the bus. Critically, Sorrell never actually saw any bag with or near Smith.

¶ 58          In addition, the majority cites Ingram, 389 Ill. App. 3d at 901, supra ¶ 29, to support the

       conclusion that the presence of other passengers on the bus did not defeat Smith's constructive

       possession of the gun. Ingram, where the defendant's flight from a car and providing police with

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       a false name, together with his accessibility to a gun found in the back seat where another

       passenger also had access, presented a significantly different scenario. With other passengers

       present and passengers disembarking in Markham and later in Chicago, any inference drawn is

       tenuous, at best, which does not suffice to prove Smith's control beyond a reasonable doubt.

¶ 59          In sum, contrary to the majority's conclusion of "independent evidence tending to inspire

       belief in Smith's admission that he owned the bag containing a gun" (supra ¶ 20), I find nothing

       in the evidence "tending to inspire belief" that the bag belonged to Smith.

¶ 60          Given the scant record, the circumstances of Sorrell's view of Smith through a rear-view

       mirror, and his inability to recall seeing Smith with any bag, I find the circumstantial evidence on

       which the trial court relied so unreasonable, improbable, and unsatisfactory, that a reasonable

       doubt as to Smith's guilt remains.

¶ 61          Accordingly, I would reverse.




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