                                      2015 IL App (1st) 132884


                                                                    FIRST DIVISION
                                                                    AUGUST 31, 2015


No. 1-13-2884

THE PEOPLE OF THE STATE OF ILLINOIS,                       )      Appeal from the
                                                           )      Circuit Court of
                     Plaintiff-Appellee,                   )      Cook County.
                                                           )
            v.                                             )      No. 04 CR 24639
                                                           )
DORIAN FAULKNER,                                           )      Honorable
                                                           )      Thomas V. Gainer,
                     Defendant-Appellant.                  )      Judge Presiding.

       JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
       Justices Connors and Harris concurred in the judgment and opinion.

                                           OPINION

¶1     Following a bench trial, the circuit court of Cook County found defendant Dorian

Faulkner guilty of one count of being an armed habitual criminal and two counts of unlawful use

or possession of a weapon by a felon (UUWF), and sentenced him to six years of imprisonment.

On direct appeal, he argues that: (1) his armed habitual criminal conviction should be reversed

because it was predicated on a prior conviction for aggravated unlawful use of a weapon that was

based on a statute found to be unconstitutional and void by People v. Aguilar, 2013 IL 112116;

and (2) his UUWF convictions should be reversed because the State failed to prove beyond a

reasonable doubt that he had constructive possession of the firearm and ammunition recovered

by the police. For the following reasons, we affirm in part and reverse in part the judgment of

the circuit court of Cook County, and remand the matter to the circuit court for further

proceedings.
1-13-2884


¶2                                     BACKGROUND

¶3     On July 14, 2012, Chicago     police officers conducted a compliance check on the

defendant, who was released on parole 1 for an unrelated crime and was living at 5210 South

Morgan Street in Chicago, Illinois. At the residence, the police recovered a .223-caliber assault

rifle and ammunition from the attic, after which they arrested the defendant. On July 26, 2012,

the defendant was charged with one count of being an armed habitual criminal (count I) and two

counts of UUWF (counts II and III). The armed habitual criminal charge was predicated upon

his two prior convictions for aggravated unlawful use of a weapon (AUUW) under case number

08 CR 0981001 and manufacture/delivery of a controlled substance under case number 09 CR

0948301.

¶4     On July 16, 2013, a bench trial commenced during which the State presented two

witnesses. Parole Officer Jack Tweedle (Officer Tweedle) testified that about 8:30 a.m. on July

14, 2012, he and Officer Jim Hollenback (Officer Hollenback), with the assistance of four other

officers, conducted a parole compliance check on the defendant at 5210 South Morgan Street in

Chicago. He described the residence as a two-story, single-family home. Officer Tweedle

testified that the purpose of the compliance check was to verify that the defendant was

complying with the conditions of his parole contract. The officers knocked on the door multiple

times and the defendant took about five minutes to answer it. The defendant was alone at the

time he answered the door. After entering the residence, Officer Tweedle found about three

grams of cannabis in plain view on a coffee table in the living room. During the compliance

check, the defendant remained in the living room with Officer Hollenback. Officer Tweedle

       1
       The defendant was paroled on the unrelated crime on April 17, 2012. The evidence
shows that as a condition of his release, he was refrained from possessing a firearm or other
dangerous weapons, and was subject to the search of his person, property and residence.

                                              -2-
1-13-2884


described the layout of the residence as having a small hallway leading from the front door to the

living room area, a bedroom with a mattress on the floor to the right of the living room, a

kitchen, and an entry leading to an enclosed back porch from the rear of the kitchen. Stairs led to

the attic via an enclosed back porch. Neither the entry leading to the enclosed back porch nor the

attic had a door. Officer Tweedle went upstairs and walked through the entire attic, where he

found a loaded .223-caliber assault rifle. The assault rifle was loaded with a round in the

chamber and 41 additional rounds in a magazine. A box of .223-caliber bullets was also found.

Officer Tweedle testified that nothing obscured his view of the rifle. The police officers then

confiscated the assault rifle and the box of ammunition.

¶5     Officer Cary Pozulp 2 (Officer Pozulp) testified that he assisted Officer Tweedle with the

parole compliance check at about 8:30 a.m. on July 14, 2012. He stated that the officers entered

the first floor of the South Morgan Street residence after climbing a flight of exterior stairs.

Officer Pozulp believed that there was a basement in the residence, but there were no stairs

leading from the first-floor unit into the basement. However, there was a flight of stairs leading

from the first-floor unit to the attic, which could be accessed by a "closed dwelling" through the

kitchen. There were no locks or doors barring entry from the first floor into the attic. Officer

Pozulp met Officer Tweedle in the attic, where he recovered a .223-caliber assault rifle near the

entrance of the attic. Officer Pozulp did not have to move anything to see the assault rifle, which

was only partially covered by a wooden board. The assault rifle was loaded with one round in

the chamber and had over 40 live rounds in the magazine. Officer Tweedle then alerted Officer

Pozulp to a nearby box of .223-caliber ammunition, which contained an additional 43 rounds of

ammunition. Officer Pozulp testified that aside from the defendant and the police officers, no

       2
           It is unclear whether Officer Pozulp's first name is spelled correctly in the transcript.

                                                   -3-
1-13-2884


one else was present in the first-floor unit or in the attic at the time of the compliance check. He

stated that the officers also recovered about three bags of cannabis from the living room. At

about 8:47 a.m., the defendant was mirandized, taken into police custody, and transported to the

police station.     At the police station, Officer Pozulp and Sergeant Dedore interviewed the

defendant. When Officer Pozulp asked the defendant about the assault rifle, he replied that, "the

hood's crazy, we're at war with these GDs out here," and that "I'm not worried about that, and my

lawyer will handle this."      On cross-examination, Officer Pozulp noted that, during police

interrogation, the defendant neither stated that the assault rifle belonged to him nor that it was

used "for protection."     However, when defense counsel asked whether the defendant had

informed the police during interrogation to "go ahead and charge me with that gun. My lawyer

got this," Officer Pozulp replied "[c]orrect."

¶6     At the close of the State's case-in-chief, the State, without objection from the defense,

entered into evidence certified copies of the defendant's prior felony convictions for AUUW

(case No. 08 CR 0981001) and manufacture/delivery of a controlled substance (case No. 09 CR

0948301). The State then rested and the trial court denied defense counsel's motion for a

directed finding.

¶7     Patricia Faulkner (Patricia) testified as the sole witness for the defense. She testified that

the defendant is her great-nephew and that she had lived at the 5210 South Morgan Street

residence since about 1980. Patricia stated that her siblings, Loretta Faulkner (Loretta) and

Willie Faulkner (Willie), owned the building. Patricia lived in the basement of the residence,

while the defendant lived in the first-floor unit at the time of his arrest. The attic was accessible

from the enclosed back porch stairs of the first-floor unit, and the back porch could be accessed

from the backyard. She stated that before the defendant moved into the residence in April 2012,

                                                 -4-
1-13-2884


other family members brought furniture and items into the apartment and also "tried to clear

some things out to make the space better for him." Some items in the attic were there before the

defendant moved into the residence. Much of the furniture inside the first-floor unit belonged to

other family members. Patricia testified that there were three copies of the key to the residence,

which were held by her and her siblings, Loretta and Willie. Loretta's key, however, was not

"cut properly" and she no longer possessed it. At trial, Patricia also identified numerous bills and

mailings that were addressed to different family members at the 5210 South Morgan Street

location. She testified that she did not see the defendant bring a gun into the home in April 2012,

nor did he ever tell her that he had a gun. She also never observed anyone else bring a gun into

the home between April 2012 and July 2012. On cross-examination, Patricia stated that, at the

time the defendant lived in the home, there was no door separating the attic stairs from the attic.

However, the door separating the enclosed back porch from the backyard had a lock on it. Both

she and the defendant had physical access to the attic. Before the defendant moved in, other

family members had lived there from time to time, but the defendant was the only person living

in the first-floor unit at the time of his arrest in the instant case. Patricia stated that she was not

aware that there was a .223-caliber assault rifle and ammunition in the attic. In order to access

the attic from the basement unit where Patricia lived, she would have had to walk through the

laundry room next to her apartment and walk up the back stairs.

¶8     Following closing arguments, the trial court found the defendant guilty of all charges—

one count of being an armed habitual criminal and two counts of UUWF:

                       "Okay. Yes, this is a case of [] constructive possession,

               and, yes, other people had access to this building, according to the

               testimony of [Patricia], before the [d]efendant moved in. There is

                                                 -5-
1-13-2884


            evidence from [Patricia] that people were bringing things into that

            [first-floor] unit *** to make the place habitable for the

            [d]efendant when he was paroled in April of 2012.

                   There is also evidence that the [d]efendant's grandfather,

            who is [Patricia]'s brother, had a key. [Patricia] had a key, and

            [Patricia's] sister, apparently, had a key at some point, but that key

            didn't work anymore—it wasn't cut right—and it didn't work.

                   There are – there's access to the attic from the floor that the

            [d]efendant was living on; there's access to *** the attic from

            [Patricia's] apartment. [Patricia] testified that she had no idea that

            the gun was up there, so it clearly wasn't her gun, even though she

            had access to *** the attic.

                   I would note, for the record, that [Patricia] had a

            tremendous amount of difficulty walking in and out of the

            courtroom. She was aided by a cart that is on wheels that also has

            a seat which she sat in when she testified. She did not take the two

            or three steps up to the witness stand, and I asked her to do that

            only because I thought it would be more convenient for her.

                   In any event, even if she could access the attic herself, in

            her condition, she clearly said it wasn't her gun, though she had no

            idea it was up there.

                   The fact that her brother, the [d]efendant's grandfather, had

            access doesn't mean he was up there. We need to look at what was

                                            -6-
1-13-2884


            up there. This is a very dangerous weapon that was locked and

            loaded and ready to go.

                   Now, that alone would not be enough to prove that this

            [d]efendant, beyond a reasonable doubt, possessed that weapon.

            But when you combine the fact that this thing was up there, locked

            and loaded and ready to go, with the statement – and I believe the

            police officers because if the police officers were making this up,

            the statement from the police officers would have been, he

            admitted that that was his weapon, he kept it up there for

            protection.

                   But that's not what [Officer] Pozulp said. He said, this –

            the hood is crazy, we're at war with these GDs.              Which is

            tantamount to saying, I need this thing for my protection.

                   I believe the police officers, I believe that the State has

            proven that this [d]efendant possessed that weapon beyond a

            reasonable doubt. There is a finding of guilty on all charges.

                                           ***

                   Let me make one more comment about the mail, by the

            way. *** I want to just say that, while it's interesting that many

            members of the family used this address of 5210 [South Morgan]

            as a place to *** let the mail be delivered to, there's four or five

            different names ***. I don't believe that, in any way, indicates that



                                            -7-
1-13-2884


                 they were coming into this house to get their mail and were going

                 up into the [d]efendant's apartment and up into that attic.

                         I believe that family members use this as a convenient

                 place to get their mail. Perhaps when they were between addresses

                 or living in places that they didn't want to receive their mail for

                 security reasons, but I don't think that creates a reasonable doubt in

                 this [c]ourt's mind."

¶9     On August 27, 2013, the trial court denied the defendant's motion for a new trial and

sentenced him to six years of imprisonment. 3 On that same day, the defendant filed a timely

notice of appeal. Accordingly, we have jurisdiction over this appeal.

¶ 10                                          ANALYSIS

¶ 11   We determine the following issues on appeal: (1) whether the State established beyond a

reasonable doubt that the defendant was an armed habitual criminal; and (2) whether the State

established beyond a reasonable doubt that the defendant possessed the assault rifle and

ammunition that were recovered from the attic by the police.

¶ 12   We first determine whether the State established beyond a reasonable doubt that the

defendant was an armed habitual criminal.

¶ 13   When the sufficiency of the evidence is challenged on appeal, we must determine

"'whether, after viewing the evidence in the light most favorable to the [State], any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.' "

(Emphasis in original.) People v. Graham, 392 Ill. App. 3d 1001, 1008-09 (2009) (quoting

Jackson v. Virginia, 443 U.S. 307, 319 (1979)). A reviewing court affords great deference to the

       3
           The trial court found that counts II and III merged with count I.

                                                  -8-
1-13-2884


trier of fact and does not retry the defendant on appeal. People v. Smith, 318 Ill. App. 3d 64, 73

(2000). It is within the province of the trier of fact "to assess the credibility of the witnesses,

determine the appropriate weight of the testimony, and resolve conflicts or inconsistencies in the

evidence." Graham, 392 Ill. App. 3d at 1009. The trier of fact is not required to accept any

possible explanation compatible with the defendant's innocence and elevate it to the status of

reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009). A reviewing court will

not substitute its judgment for that of the trier of fact. People v. Sutherland, 223 Ill. 2d 187, 242

(2006). A reviewing court must allow all reasonable inferences from the record in favor of the

State. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). A criminal conviction will not be

reversed "unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt

as to the defendant's guilt." Graham, 392 Ill. App. 3d at 1009.

¶ 14   At trial, the State, without objection by the defense, entered into evidence certified copies

of the defendant's prior felony convictions for AUUW (case No. 08 CR 0981001) and

manufacture/delivery of a controlled substance (case No. 09 CR 0948301). These two prior

felony convictions served as the predicate offenses underlying the defendant's armed habitual

criminal conviction in the instant case.

¶ 15   The defendant argues on appeal that his armed habitual criminal conviction should be

reversed because the State failed to prove beyond a reasonable doubt that he had two qualifying

convictions to satisfy the necessary elements of the armed habitual criminal offense.            He

specifically argues that his 2008 felony conviction for AUUW, a predicate offense to the armed

habitual criminal offense, was void because the statute under which he was convicted for the

2008 felony was declared unconstitutional by our supreme court in People v. Aguilar, 2013 IL

112116.

                                                -9-
1-13-2884


¶ 16   The State counters that the defendant's armed habitual criminal conviction should be

affirmed where his 2008 felony conviction for AUUW was valid at the time he possessed the

assault rifle in the instant case. The State argues that it is the status of the defendant's prior

conviction at the time he possessed the assault rifle that controls, arguing that because he was a

twice-convicted felon at the time of the incident on July 14, 2012, he was properly charged and

convicted of being an armed habitual criminal in the case at bar.

¶ 17   The armed habitual criminal statute provides in pertinent part the following:

               "(a) A person commits the offense of being an armed habitual

               criminal if he or she receives, sells, possesses, or transfers any

               firearm after having been convicted a total of 2 or more times of

               any combination of the following offenses:

                       (1) a forcible felony as defined in Section 2-8 of this Code;

                       (2) unlawful use of a weapon by a felon; aggravated

               unlawful use of a weapon; *** or

                       (3) any violation of the Illinois Controlled Substances Act

               or the Cannabis Control Act that is punishable as a Class 3 felony

               or higher." 720 ILCS 5/24-1.7 (West 2012).

¶ 18   The parties do not dispute that the defendant's prior 2009 felony conviction for

manufacture/delivery of a controlled substance (case No. 09 CR 0948301) satisfied one of two

qualifying offenses under the armed habitual criminal statute. Rather, they disagree on whether

his 2008 felony conviction for AUUW (case No. 08 CR 0981001) satisfied the second of the two

qualifying offenses under the statute.



                                               - 10 -
1-13-2884


¶ 19   In Aguilar, 2013 IL 112116, our supreme court found the Class 4 version of the AUUW

statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) to be unconstitutional in violation

of the second amendment right to bear arms. When a statute is declared unconstitutional, it is

void ab initio, or as though the law had never been passed. See People v. Tellez-Valencia, 188

Ill. 2d 523, 526 (1999). The defendant maintains that because his prior conviction for the Class 4

form of AUUW (case No. 08 CR 0981001) is void under Aguilar, the State could not rely on this

now-void conviction to serve as a predicate offense for being an armed habitual criminal.

Therefore, he argues, the State failed to prove an essential element of the offense of armed

habitual criminal. The State counters that since the defendant's 2008 conviction for AUUW was

valid at the time he possessed the assault rifle in the instant case, the State sufficiently proved at

trial that he was an armed habitual criminal.

¶ 20   We find that this court has already addressed the same exact issue in People v. Fields,

2014 IL App (1st) 130209 and People v. McFadden, 2014 IL App (1st) 102939, appeal allowed,

No. 117424 (Ill. May 28, 2014). In Fields and McFadden, this court, relying on People v.

Dunmore, 2013 IL App (1st) 121170, reversed the defendant's convictions at issue in those cases

and held that each defendant's prior conviction for AUUW under the statute that had been

declared unconstitutional by Aguilar could not serve as a predicate offense for the defendant's

armed habitual criminal conviction (Fields) or unlawful use of a weapon conviction

(McFadden). We find no reason to deviate from the holdings in Fields and McFadden. Because

the defendant's prior conviction for AUUW was based on a statute that was found to be

unconstitutional and void ab initio in Aguilar, we cannot allow it to stand as a predicate offense

for the defendant's armed habitual criminal conviction in the instant case. Thus, we find that the

State was required to, but could not, prove beyond a reasonable doubt an element of the offense

                                                - 11 -
1-13-2884


of armed habitual criminal, where the statute underlying the AUUW conviction was found to be

unconstitutional and thus, the conviction cannot serve as a predicate offense for any charge.

¶ 21    The State maintains that the defendant's armed habitual criminal conviction should be

upheld, arguing that Fields and McFadden were wrongly decided because those cases failed to

consider how the defendant's previous AUUW conviction was still valid at the time he possessed

the assault rifle in the instant case. The State contends that "it is the status of the prior conviction

at the time he or she possesses the firearm that controls, regardless of whether that prior

conviction is later vacated, expunged, or declared void ab initio." In support, the State cites

multiple federal cases and state cases from other jurisdictions, focusing primarily on the holdings

in Lewis v. United States, 445 U.S. 55 (1980); United States v. Lee, 72 F.3d 55 (7th Cir. 1995);

Bailey v. Lampert, 153 P.3d 95 (Or. 2007); and United States v. Padilla, 387 F.3d 1087 (9th Cir.

2004). First, we note that federal court decisions, other than United States Supreme Court

decisions, are considered persuasive authority and not binding on this court. See People v.

Rendak, 2011 IL App (1st) 082093, ¶ 18. Second, Lewis, Lee, Bailey, and Padilla do not involve

predicate felony convictions that were based on an unconstitutional statute and thus, have no

applicability to the facts in the case at bar. Therefore, we reiterate that we have no reason to

deviate from the holdings in Fields and McFadden.

¶ 22   The State also argues in a footnote that this court has no jurisdiction to consider the

merits of the defendant's predicate prior AUUW offense. We emphasize that the defendant's

prior conviction for AUUW (case No. 08 CR 0981001) is not at issue here, nor do we make any

findings as to the applicability of Aguilar to that conviction on a collateral attack. We also

emphasize that we are not vacating the defendant's prior AUUW conviction (case No. 08 CR

0981001) pursuant to Aguilar. We further decline to address whether formal proceedings for

                                                 - 12 -
1-13-2884


collateral relief may be available to the defendant to vacate his AUUW conviction in that case.

Thus, the State's jurisdictional argument is misplaced here. Accordingly, because the State could

not prove beyond a reasonable doubt an element of the offense of being an armed habitual

criminal, we reverse the defendant's conviction.

¶ 23      We next determine whether the State established beyond a reasonable doubt that the

defendant possessed the assault rifle and ammunition that were recovered from the attic by the

police.

¶ 24      The defendant argues that the State failed to prove beyond a reasonable doubt that he had

constructive possession of the assault rifle and ammunition that were found in the attic of the

home, where he had been living in the first-floor unit for a short time; the apartment unit

contained other family members' possessions that had been moved and stored in the attic to make

room for him; others had lived there before him; other family members received mail there and

had keys to the unit; and he did not admit to owning the contraband.

¶ 25      The State counters that the evidence established beyond a reasonable doubt that the

defendant possessed the assault rifle and ammunition, which satisfied the element of possession

supporting both his convictions for armed habitual criminal 4 and UUWF. The State specifically

argues that the defendant was proven to have constructive possession of the assault rifle and

ammunition in his attic where the evidence showed that he had knowledge of the weapon's

presence and had exclusive control over the area where the weapon was located.



          4
        Although this court has already concluded that the defendant's armed habitual criminal
conviction should be reversed on the basis that his prior AUUW conviction could not serve as a
predicate offense, we note that, in the event that this court finds that the defendant had no
constructive possession over the assault rifle and ammunition, the armed habitual criminal
conviction would also be defeated on this additional basis.

                                                - 13 -
1-13-2884


¶ 26   A person commits the offense of armed habitual criminal if he possesses a firearm after

having been convicted of two or more predicate offenses. See 720 ILCS 5/24-1.7 (West 2012).

A person commits the offense of UUWF if he possesses a firearm or firearm ammunition after

having been convicted of a prior felony. See 720 ILCS 5/24-1.1(a) (West 2012).

¶ 27   "Knowing possession" can be either actual or constructive. People v. Brown, 327 Ill.

App. 3d 816, 824 (2002). Because the defendant was not found in actual possession of the

assault rifle, the State had to prove that he constructively possessed it. See People v. McCarter,

339 Ill. App. 3d 876, 879 (2003). To establish constructive possession, the State must prove that

the defendant: (1) had knowledge of the presence of the weapon; and (2) exercised immediate

and exclusive control over the area where the weapon was found. Id. "Evidence of constructive

possession is often entirely circumstantial."          (Internal quotation marks omitted.)     Id.

"Knowledge may be proven by evidence of a defendant's acts, declarations or conduct from

which it can be inferred he knew the contraband existed in the place where it was found."

People v. Ross, 407 Ill. App. 3d 931, 936 (2011). "Control is established when a person has the

'intent and capability to maintain control and dominion' over an item, even if he lacks personal

present dominion over it." People v. Spencer, 2012 IL App (1st) 102094, ¶ 17 (quoting People v.

Frieberg, 147 Ill. 2d 326, 361 (1992)). Control over the area where the contraband was found

gives rise to an inference that the defendant possessed the contraband. See McCarter, 339 Ill.

App. 3d at 879. "Knowledge and possession are questions of fact to be resolved by the trier of

fact, whose findings should not be disturbed upon review 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).



                                              - 14 -
1-13-2884


¶ 28    Viewing the evidence in a light most favorable to the State, we find that the State proved

beyond a reasonable doubt that the defendant had constructive possession over the assault rifle

and ammunition. The evidence shows that on July 14, 2012, in conducting a parole compliance

check on the defendant, Officer Tweedle found an assault rifle and ammunition in the attic of the

defendant's home at 5210 South Morgan Street in Chicago. The first-floor unit, where the

defendant lived, had stairs leading to the attic from the enclosed back porch. The enclosed back

porch was accessible from the rear of the kitchen. Neither the entry leading to the enclosed back

porch nor the attic had a door. According to Officer Tweedle, the assault rifle was loaded and

found along with a box of .223-caliber bullets nearby. Both Officers Tweedle and Pozulp

testified that nothing obscured their view of the assault rifle, which was located near the entrance

of the attic. At the time of the parole compliance check, the defendant was alone in the first-

floor unit. The defendant's great-aunt, Patricia, testified that the defendant was the only person

living in the first-floor unit at the time of his arrest in the case at bar, and that Patricia lived in the

basement unit of the residence. Evidence was also presented to the trial court that when asked

about the assault rifle during police interrogation, the defendant remarked that, "the hood's crazy,

we're at war with these GDs out here" and that "I'm not worried about that, and my lawyer will

handle this." On cross-examination, Officer Pozulp, when asked to clarify whether the defendant

had informed the police during interrogation to "go ahead and charge me with that gun," Officer

Pozulp confirmed that he had.

¶ 29    Given this evidence, we find that the trier of fact could reasonably have concluded that

the defendant had knowledge of the presence of the weapon, and maintained control over the

area where the contraband was found. When questioned about the recovered assault rifle during

police interrogation, the defendant neither registered surprise as to its existence nor made any

                                                  - 15 -
1-13-2884


attempt to deny his ownership of the weapon. Instead, he responded to police inquiry by making

statements which were tantamount to an explanation as to his need for it—for protection. His

statements, coupled with corroborating evidence of the weapon's condition at the time it was

found by the police (loaded with one round in the chamber, 41 live rounds in a banana magazine,

along with an additional 43 rounds of ammunition in a nearby box), gave rise to a reasonable

inference that the defendant had knowledge of the presence of the assault rifle and ammunition.

The defendant now argues that his postarrest statements to the police were ambiguous at best and

that, "[i]n the absence of any other evidence corroborating [his] constructive possession," they

were not sufficient to support his convictions beyond a reasonable doubt. He specifically points

out that the State produced no physical evidence such as fingerprints linking him to the assault

rifle or ammunition. We reject this contention. As noted, evidence of constructive possession is

often entirely circumstantial. McCarter, 339 Ill. App. 3d at 879; People v. Stack, 244 Ill. App.

3d 393, 399 (1993) (defendant's knowledge of the existence of a firearm within his possession

may be inferred from circumstantial evidence). Thus, in viewing the evidence in a light most

favorable to the State, we find that the trial court could reasonably have construed the defendant's

statements to the police as a tacit confirmation of his knowledge that the weapon was located in

the attic. See Ross, 407 Ill. App. 3d at 936 ("[k]knowledge may be proven by evidence of a

defendant's acts, declarations or conduct from which it can be inferred he knew the contraband

existed in the place where it was found"); see generally People v. Brown, 327 Ill. App. 3d 816

(2002) (affirming defendant's conviction for UUWF based on constructive possession, where the

circumstantial evidence was corroborated by defendant's statement to the police about the

weapon).



                                               - 16 -
1-13-2884


¶ 30   We further find that the evidence presented at trial was sufficient to establish that the

defendant exercised immediate and exclusive control over the attic where the assault rifle and

ammunition were found. Evidence presented at trial showed that the defendant lived alone in the

first-floor unit of the residence at the time of his arrest. The trial court also heard evidence that

the attic, where the assault rifle and ammunition were recovered, was directly accessible from the

defendant's first-floor unit. At trial, Officer Tweedle testified that the kitchen in the first-floor

unit led to an enclosed back porch, where a flight of stairs led directly to the attic. Testimonial

evidence at trial established that neither the entry leading from the first-floor unit to the enclosed

back porch, nor the entrance of the attic, had a door or any obstacles barring access. Although

the defendant's great-aunt, Patricia, testified that both she and the defendant had physical access

to the attic, she stated that she was not aware of the presence of the assault rifle and the

ammunition in the attic. The trial court, as the trier of fact, also noted for the record that Patricia

"had a tremendous amount of difficulty walking in and out of the court"; that she was "aided by a

cart that is on wheels that also has a seat which she sat in when she testified"; and that she "did

not take the two or three steps up to the witness stand." Viewing the evidence in a light most

favorable to the State, we find that the trial court could reasonably have concluded that the

defendant exercised exclusive control over the attic where the contraband was found, where it

could reasonably be inferred from the record that the defendant was the only able-bodied person

living at 5210 South Morgan Street who could have climbed the attic stairs and accessed the attic

space in order to place the weapon there.

¶ 31   Nonetheless, the defendant makes a number of arguments claiming that he had no

exclusive control over the attic because others also could have accessed the attic. He points to

Patricia's testimony that Loretta and Willie each had a key to the residence; that before the

                                                - 17 -
1-13-2884


defendant moved into the first-floor unit in April 2012, other family members had brought

furniture and items into the apartment and had also "tried to clear some things out to make the

space better for him"; that some items in the attic were there before the defendant moved into the

residence; and that there was mail that was addressed to different family members at the 5210

South Morgan Street location. We reject this contention. Here, the trial court heard Patricia's

testimony that Loretta's key was defective and that Loretta no longer possessed it. Although

evidence was presented at trial that both Patricia and the defendant had access to the attic, it

could not reasonably be concluded that Patricia could have climbed the stairs to the attic on her

own, as noted by the trial court's findings that she was physically limited. No evidence was

presented to the trial court that Willie, as an owner of the residence, accessed the attic at any

point before or during the defendant's stay in the first-floor unit.       Nor was any evidence

presented to show that different family members, to whom mail was addressed at that location,

physically came to the residence to pick up their mail. Indeed, the trial court found that the fact

that there was mail addressed to different family members at the 5210 South Morgan Street

location, in no way indicated that "they were coming into this house to get their mail and were

going up into the [d]efendant's apartment and up into that attic." While Patricia testified that

other family members brought furniture and items into the first-floor unit in preparation for the

defendant's arrival in April 2012, and the attic contained items before the defendant moved in,

the trial court was not required to speculate whether the assault rifle and ammunition were

among those items placed in the attic by someone else. See Siguenza-Brito, 235 Ill. 2d at 219

(the trier of fact was not required to accept any possible explanation compatible with the

defendant's innocence and elevate it to the status of reasonable doubt). Moreover, it was within

the province of the trial court, as the trier of fact, to assess Patricia's credibility and determine

                                               - 18 -
1-13-2884


what weight to give to her testimony. See Graham, 392 Ill. App. 3d at 1009 (it is within the

province of the trier of fact "to assess the credibility of the witnesses, determine the appropriate

weight of the testimony, and resolve conflicts or inconsistencies in the evidence").          Thus,

viewing the evidence in the light most favorable to the State, we find that the evidence

established that the defendant exercised immediate and exclusive control over the attic where the

weapon and ammunition were recovered. Therefore, the State proved beyond a reasonable that

the defendant had constructive possession of the assault rifle and ammunition that were

recovered from the attic by the police. Accordingly, the defendant's UUWF conviction must

stand.

¶ 32     For the foregoing reasons, we affirm in part and reverse in part the judgment of the

circuit court of Cook County, and remand this matter to the circuit court for resentencing in light

of the reversal of the defendant's armed habitual criminal conviction.

¶ 33     Affirmed in part; reversed in part; remanded.




                                               - 19 -
