                                      2017 IL App (1st) 132884

                                                                  SIXTH DIVISION
                                                                  FEBRUARY 10, 2017

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 (AHC) 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 AHC conviction should be reversed

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

(AUUW) that was based on a statute found to be unconstitutional and void by People v. Aguilar,

2013 IL 112116; and (2) his AHC and 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. On August 31, 2015, we issued an opinion affirming the

UUWF convictions but reversing the AHC conviction. People v. Faulkner, 2015 IL App (1st)

132884. In September 2016, our supreme court issued a supervisory order directing us to
1-13-2884



reconsider that judgment in light of its decision in People v. McFadden, 2016 IL 117424. We

now affirm the convictions for both AHC as well as UUWF.

¶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. At the defendant’s residence at

5210 South Morgan Street, 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 AHC (count I) and two counts of UUWF (counts II and III). The

AHC charge was predicated upon his two prior convictions for 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 testified that at about 8:30 a.m. on July 14, 2012, he and

Officer Jim Hollenback, with the assistance of four other officers, conducted a parole compliance

check at the defendant’s residence. 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

       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 prohibited from possessing a firearm or other dangerous weapons, and
was subject to the search of his person, property and residence.

                                                 -2­
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Tweedle described the layout of the residence as having a small hallway leading from the front

door to the living room area, a bedroom, 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. A box of

.223-caliber bullets was also found. Officer Tweedle testified that nothing obscured his view of

the rifle. The police officers confiscated the assault rifle and the box of ammunition.

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

compliance check. He stated that the officers entered the first floor of the South Morgan Street

residence after climbing a flight of exterior stairs. 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 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. The defendant was

read his Miranda rights and taken into police custody. At the police station, Officer Pozulp and

Sergeant Dedore interviewed the defendant. When Officer Pozulp asked the defendant about the

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

                                                   -3­
1-13-2884



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, Officer Polzup answered

affirmatively when defense counsel asked whether the defendant had told the police to “go ahead

and charge me with that gun. My lawyer got this.”

¶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). These two prior felony convictions were offered as proof of the requisite predicate

offenses supporting the defendant’s AHC charge. After the State rested, the trial court denied a

defense 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, while the defendant

lived in the first-floor unit. 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, 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,

                                               -4­
1-13-2884



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 AHC 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

               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.



                                                -5­
1-13-2884



                    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

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

             loaded and ready to go.



                                             -6­
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                       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.”

¶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. In that appeal, the defendant challenged whether the State established the

necessary predicate offenses to support the AHC conviction beyond a reasonable doubt. The

basis of that argument was that his AHC conviction had been predicated, in part, on a prior 2008

conviction for AUUW for violating a statutory provision subsequently found to be

unconstitutional. See People v. Aguilar, 2013 IL 112116 (concluding that the Class 4 version of

the AUUW statute (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2008)) violated the right to

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

                                                   -7­
1-13-2884



bear arms under the second amendment of the United States Constitution.) In turn, he argued that

the 2008 AUUW conviction was void and thus could not serve as one of the two predicate

convictions necessary to support the AHC offense. 4 Separately, the defendant’s appeal

challenged 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.

¶ 10   On August 31, 2015, we issued an opinion in which we agreed with the defendant that, in

light of Aguilar, the 2008 AUUW conviction could not support the subsequent AHC conviction.

We reasoned:

               “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 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.”

               Faulkner, 2015 IL App (1st) 132884, ¶ 20.

Separately, our opinion affirmed the defendant’s UUWF convictions, as we agreed with the State

that it had offered sufficient evidence of the element of possession.

       4
          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 AHC statute. Rather, they disagree on whether his 2008 felony conviction for AUUW
satisfied the second of the two qualifying offenses under the statute.



                                                 -8­
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¶ 11    On September 28, 2016, our supreme court entered a supervisory order, directing us to

reconsider our judgment in light of People v. McFadden, 2016 IL 117424. Our August 31, 2015

opinion was withdrawn in light of the supervisory order. We then allowed the parties to file

supplemental briefing with respect to the impact of McFadden before issuing this opinion.

¶ 12                                        ANALYSIS

¶ 13   We note that we have jurisdiction because the defendant filed a timely notice of appeal.

¶ 14   We now review (1) whether, in light of our supreme court’s McFadden decision, the

State established the predicate offenses necessary to sustain a conviction for the AHC offense

and (2) whether the State offered sufficient evidence of constructive possession to support the

AHC and UUWF convictions.

¶ 15   We first conclude that, in light of our supreme court’s judgment in McFadden, the

defendant’s 2008 AUUW conviction could, in fact, serve as a predicate conviction for the AHC

conviction.

¶ 16   McFadden concerned a direct appeal from a UUWF conviction, based on the defendant’s

possession of a firearm at a time when he had previously been convicted of AUUW. As in this

case, the McFadden defendant’s prior AUUW conviction was based on the same AUUW

statutory provision found to be unconstitutional by our supreme court’s decision in Aguilar.

McFadden, 2016 IL 117424, ¶ 1. Similar to the defendant’s argument regarding his AHC charge

in this case, the defendant in McFadden argued that Aguilar’s holding prevented the State’s use

of the prior AUUW conviction to serve as a predicate offense for the UUWF charge. Id. ¶ 8.

¶ 17   Our appellate court agreed with the McFadden defendant and vacated the defendant’s

UUWF conviction on the basis of Aguilar. People v. McFadden, 2014 IL App (1st) 102939.

However, our supreme court reversed, reasoning that the defendant’s felon status was unaffected

                                              -9­
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by Aguilar and that, unless the prior conviction was vacated, the prior felony conviction

precluded the defendant from legally possessing a firearm. McFadden, 2016 IL 117424, ¶ 31

(“Although Aguilar may provide a basis for vacating defendant’s prior 2002 AUUW conviction,

Aguilar did not automatically overturn that judgment of conviction. Thus, at the time defendant

committed the UUW by a felon offense, defendant had a judgment of conviction that had not

been vacated and that made it unlawful for him to possess firearms.”).

¶ 18   Our supreme court in McFadden relied largely on the United States Supreme Court’s

holding “that under a federal felon-in-possession-of-a-firearm statute, a constitutionally infirm

prior felony conviction could be used by the government as the predicate felony.” Id. ¶ 22 (citing

Lewis v. United States, 445 U.S. 55, 65 (1980)). McFadden approvingly cited Lewis’ reasoning

in holding that an AUUW conviction subject to vacatur under Aguilar may still serve as a

predicate for a UUWF conviction.

¶ 19   The federal statute at issue in Lewis criminalized the possession of a firearm by “any

person who has been convicted by a court of the United States or of a State *** of a felony.”

(Internal quotation marks omitted.) 445 U.S. at 60. The defendant in Lewis had a prior felony

conviction from a state court case in which he was unrepresented by counsel. Id. at 57. The

Lewis court recognized that a conviction without the benefit of counsel was unconstitutional

under the Sixth and Fourteenth Amendments. Id. at 59.

¶ 20   Despite the constitutional infirmity of the prior conviction, the United States Supreme

Court nonetheless held that the prior felony subjected the defendant to liability under the felon-

in-possession statute. The court reasoned that “Nothing on the face of the statute suggests a

congressional intent to limit its coverage to persons [whose convictions are not subject to

collateral attack]” and that “its plain meaning is that the fact of a felony conviction imposes a

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firearm disability until the conviction is vacated or the felon is relieved of his disability by some

affirmative action.” (Internal quotation marks omitted.) Id. at 60-61.

¶ 21   The McFadden decision recognized that “under Lewis and its progeny, the fact of a

felony conviction without any intervening vacatur or other affirmative action to nullify the

conviction triggers the firearms disability.” McFadden, 2016 IL 117424, ¶ 24. McFadden applied

the reasoning from Lewis to the UUWF statute, which prohibited possession of a firearm, by any

person “ ‘if the person has been convicted of a felony under the laws of this State or any other

jurisdiction.’ ” Id. ¶ 27 (quoting 720 ILCS 5/24-1.1(a) (West 2008)). The McFadden court

reasoned that the UUWF statute “requires the State to prove only the defendant’s felon status”

and did not suggest “any intent to limit the language to only those persons whose prior felon

convictions are not later subject to vacatur.” Id. The McFadden court further reasoned that the

language of the UUWF statute, as with the federal statute at issue in Lewis, was “ ‘consistent

with the common-sense notion that a disability based upon one’s status as a convicted felon

should cease only when the conviction upon which that status depends has been vacated’ ” (id.

¶ 29 quoting Lewis, 445 U.S. at 61 n.5) and “it is immaterial whether the predicate conviction

‘ultimately might turn out to be invalid for any reason.’ ” Id. (quoting Lewis, 445 U.S. at 62).

McFadden concluded that “The UUW by a felon offense is a status offense, and the General

Assembly intended that a defendant must clear his felon status before obtaining a firearm.” Id.

¶ 22   In his supplemental briefing, the defendant raises two arguments attempting to

distinguish McFadden from the present case, which concern the use of the same prior AUUW

felony as a predicate for the AHC offense. However, we find that our court has previously

considered and rejected these arguments in People v. Perkins, 2016 IL App (1st) 150889, which



                                               - 11 ­
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found McFadden applied to sustain an AHC conviction premised on the same predicate AUUW

offense at issue.

¶ 23   First, the defendant contends that the holding of McFadden was limited to the UUWF

offense and does not apply to support a conviction for AHC based on the form of AUUW

invalidated by Aguilar. The defendant attempts to distinguish the offenses so as to categorize

UUWF as a “status”-based offense but AHC as a “conduct”-based offense. The defendant argues

that “[t]he UUWF statute at issue in McFadden merely requires proof of the defendant’s felony

status—based on any prior felony—to obtain a conviction.” See 720 ILCS 5/24-1.1(a) (West

2014) (prohibiting possession of a firearm by any person “if the person has been convicted of a

felony under the laws of this State or any other jurisdiction.”) He argues that this “generic ‘felon

status’ principle” was the basis for McFadden’s holding “that a prior conviction under an

unconstitutional statute could serve as a predicate offense for UUWF.”

¶ 24   In contrast, the defendant argues, an AHC conviction requires the State to “present

evidence of at least two prior offenses from a carefully-considered list” that “represents the entire

universe of criminal behavior that the legislature deemed worthy of a Class X conviction and

sentence for ACH.” See 720 ILCS 5/24-1.7(a)(1)-(3) (West 2012). 5 Thus, he argues that the



       5
        The AHC 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


                                                 - 12 ­
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AHC statute does not create a “broad sweeping firearm disability” for any prior felony

conviction, as in the case of the UUWF statute in McFadden, or the federal felon-in-possession

statute at issue in Lewis. In his reply brief, he further attempts to distinguish the UUWF offense

from the AHC offense by arguing that “AHC is a recidivist offense” and that “invalid prior

convictions cannot be used *** to prove the prior-felon element of a recidivist statute.” He thus

argues that “Lewis and McFadden are based on findings of legislative intent that do not apply to

the AHC statute.”

¶ 25   We reject the defendant’s attempts to distinguish McFadden as inapplicable to the AHC

offense. Notably, our court rejected a similar argument in People v. Perkins, 2016 IL App (1st)

150889, in which we held, pursuant to our supreme court’s decision in McFadden, that a prior

conviction for the form of AUUW invalidated by Aguilar may serve as a predicate for an AHC

conviction. In Perkins, the defendant asserted that McFadden’s reasoning was limited to the

offense of UUWF because “UUWF impose[d] a ‘status-based disability’ that precludes any

convicted felon from possessing a firearm” whereas “the offense of armed habitual criminal

requires the State to prove that the defendant was convicted of specific enumerated offenses.” Id.

¶ 6. The Perkins defendant thus argued that UUWF imposed a “status-based disability” whereas

the AHC conviction “imposes a conduct-based disability *** based on a defendant’s commission

of specific acts.” Id. The Perkins defendant proceeded to argue that “because the conduct of

which he was previously convicted—possession of a firearm—was constitutionally protected, it




                      (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).



                                                 - 13 ­
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cannot serve as a predicate for his armed habitual criminal conviction.” (Emphasis in original.)


Id.


¶ 26   Our court in Perkins rejected this attempt to differentiate the UUWF offense from the


AHC offense as “a distinction without a difference.” Id. ¶ 7. We explained:


               “In order to sustain its burden to prove that defendant is an armed

               habitual criminal, the State need only prove the fact of the prior

               convictions of enumerated offenses [citations], just as the State

               need only prove the fact of a prior felony conviction to support a

               UUWF conviction. Nothing in the armed habitual criminal statute

               requires a court to examine a defendant’s underlying conduct in

               commission of the enumerated offenses in order to find that the

               State has sustained its burden of proof. And because here, as in

               McFadden, Perkins’ prior convictions had not been vacated prior

               to his armed habitual criminal conviction, they could properly

               serve as predicates for that conviction.” Id.

¶ 27   The same reasoning from Perkins applies to the defendant’s attempt to distinguish the

AHC statute in this case. Thus, we reject the defendant’s first argument raised in opposition to

the application of McFadden to support the AHC offense in this case.

¶ 28   The second argument raised by the defendant to oppose the application of McFadden has

also been rejected by our court. Specifically, the defendant asserts that United States Supreme

Court precedent, including Montgomery v. Louisiana, 577 U.S. ___, 136 S. Ct. 718 (2016) and

Ex parte Siebold, 100 U.S. 371 (1880), precludes the use of a prior conviction, premised on a

statute later held unconstitutional, as a predicate for the AHC offense. The defendant urges that

                                               - 14 ­
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because the McFadden decision of our supreme court “did not address” this authority from the

United States Supreme Court, we are “not bound by McFadden.”

¶ 29   In Montgomery, the United States Supreme Court held that the prohibition against

mandatory life sentences without parole for juvenile offenders was a substantive rule of

constitutional law entitled to retroactive effect. 577 U.S. at ___, 136 S. Ct. at 734. In so holding,

the United States Supreme Court recognized: “A conviction or sentence imposed in violation of a

substantive rule is *** void. See Siebold, 100 U.S. at 376. It follows *** that a court has no

authority to leave in place a conviction or sentence that violates a substantive rule, regardless of

whether the conviction or sentence became final before the rule was announced.” Id. at 731.

¶ 30   The defendant asserts that Montgomery and other United States Supreme Court precedent

prevents “States from ever punishing a citizen, whether directly or collaterally, based on a law

that is facially unconstitutional.” He asserts that our supreme court’s decision in McFadden

violates this principle by permitting the State to use an unconstitutional conviction for AUUW to

support a conviction for UUWF. He argues that, under Montgomery, the State “cannot give legal

effect to a conviction under a facially unconstitutional criminal statute,” which will result if his

prior AUUW conviction is allowed to support his AHC conviction. In other words, he argues

that we cannot follow the reasoning of our supreme court in McFadden because it runs afoul of

United States Supreme Court precedent.

¶ 31   Again, we note that this argument was addressed and rejected by our court in Perkins,

which upheld an AHC conviction predicated on the form of AUUW invalidated by Aguilar.

Perkins, 2016 IL App (1st) 150889, ¶¶ 8-9. In Perkins, the defendant similarly argued that,

pursuant to Montgomery, Aguilar was entitled to “retroactive effect and that the State’s reliance

on his prior UUWF and AUUW conviction violates Montgomery’s central premise: ‘There is no

                                               - 15 ­
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grandfather clause that permits States to enforce punishment the Constitution forbids.’ ” Id. ¶ 8.

(quoting Montgomery, 577 U.S. at ___, 136 S. Ct. at 731).

¶ 32   However, our court rejected the argument (repeated by the defendant in this case) that our

supreme court’s decision in McFadden had ignored or violated Montgomery:

                        “Perkins contends that our supreme court ‘ignored’ the

               decision in Montgomery. But as the State points out, prior to oral

               argument in McFadden, counsel sought and was granted leave to

               cite Montgomery as additional authority. In that motion, counsel

               advanced the same arguments presented here. In response, the

               State argued, as it does here, that Montgomery posed no

               constitutional impediment to affirmance of the defendant’s UUWF

               conviction given that defendant was not seeking to vacate his prior

               conviction ***, but instead was challenging his status as a

               convicted felon at the time of his trial. The State argued that in this

               context, Lewis v. United States, 445 U.S. 55, 60-62 (1980), which

               held that a defendant’s failure to vacate a prior felony conviction

               on grounds that it was unconstitutional was fatal to a challenge to a

               felon-in-possession conviction, controlled. We agree with the

               State.

                        At the time of Perkins’ armed habitual criminal conviction

               he had prior UUWF and AUUW convictions. Because those

               convictions had not been vacated at the time Perkins possessed a



                                               - 16 ­
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               firearm ***, they could properly serve as the predicates for his

               armed habitual criminal conviction.” Id. ¶¶ 9-10.

¶ 33   The same reasoning from Perkins applies to support the defendant’s AHC conviction in

this case. At the time of the defendant’s AHC conviction, he had two prior convictions, including

an AUUW conviction, that were qualifying predicate offenses under the AHC statute. As those

convictions had not been vacated at the time of the defendant’s arrest in July 2012, they could

properly serve as the predicates for his AHC conviction. In light of the foregoing, we conclude

that, pursuant to McFadden and Perkins, the defendant’s AHC conviction could be predicated on

his prior conviction for AUUW, notwithstanding that the prior conviction stemmed from the

statutory provision later held unconstitutional in Aguilar.

¶ 34   We now turn to the defendant’s separate argument, that his AHC and 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.

¶ 35   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

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

                                               - 17 ­
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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.

¶ 36   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.

¶ 37   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 AHC 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.

¶ 38   A person commits the AHC offense if he possesses a firearm after having been convicted

of two or more enumerated 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).



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¶ 39   “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).

¶ 40   Viewing the evidence in a light most favorable to the State, a trier of fact could find that

the defendant had constructive possession over the assault rifle and ammunition. The evidence

shows that on July 14, 2012, Officer Tweedle found an assault rifle and ammunition in the attic

of the defendant’s home. 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

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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 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

confirmed that the defendant had told the police during interrogation to “go ahead and charge me

with that gun.”

¶ 41   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

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

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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]nowledge 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).

¶ 42   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. Although 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

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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.

¶ 43   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

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

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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 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 had

constructive possession of the assault rifle and ammunition that were recovered from the attic by

the police. Accordingly, the defendant’s AHC and UUWF convictions must stand.

¶ 44   For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 45   Affirmed.




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