                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                            People v. Scott, 2011 IL App (2d) 100990




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    TORICO M. SCOTT, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0990


Filed                      August 9, 2011


Held                       Defendant’s conviction for armed violence predicated on the possession
(Note: This syllabus       of cannabis with intent to deliver was upheld where the evidence showed
constitutes no part of     that at the time the police arrived to execute a search warrant for
the opinion of the court   defendant’s apartment, he was lying on a couch a short distance from a
but has been prepared      love seat under which he had placed a shotgun, he would have had little
by the Reporter of         difficulty in reaching for the weapon and picking it up as the police
Decisions for the          entered, and the fact that he did not do so did not excuse him from guilt
convenience of the
                           of armed violence, especially in view of the legislature’s intention to
reader.)
                           deter the use of firearms in the commission of felonies by enacting the
                           armed violence statute.


Decision Under             Appeal from the Circuit Court of Kane County, No. 09-CF-1799; the
Review                     Hon. Thomas E. Mueller, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Scott A. Kent, of Martin, Kent & Reidy, LLC, of Wheaton, for appellant.
Appeal
                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


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




                                              OPINION

¶1          After a bench trial, defendant, Torico M. Scott, was convicted of armed violence (720
        ILCS 5/33A-2(a) (West 2008)) and sentenced to 12 years in prison. Defendant appeals,
        contending that he was not proved guilty beyond a reasonable doubt. We affirm.
¶2          Defendant was charged with two counts of armed violence, alleging that (1) while armed
        with a dangerous weapon, he committed a felony, possession of cannabis (720 ILCS
        550/4(d) (West 2008)) and (2) while armed with a dangerous weapon, he committed a
        felony, possession of cannabis with the intent to deliver (720 ILCS 550/5(d) (West 2008)).
        Defendant was also charged with the two cannabis offenses; he pleaded guilty to possession
        with the intent to deliver, and the State dismissed the other charge. The case proceeded to
        a bench trial. We summarize the evidence.
¶3          Illinois state police officer Keith Chesnut testified as follows. On June 19, 2009, at about
        5:35 a.m., he was part of a narcotics task force tactical unit that executed a search warrant
        at 217 Laurel, Unit A, in North Aurora. There were two entry teams, one at the front door
        and one at the back door. After knocking and opening the front door, Chesnut saw a stairway
        directly in front; to the left was a door that opened into a small living room. Chesnut opened
        the living room door and looked in. To his immediate left was a couch along the wall, in
        front of the windows. To his right was another couch, running along the wall adjacent to the
        stairway. As Chesnut stood in the doorway, the far end of either couch was no more than 10
        feet from him.
¶4          Entering the living room, Chesnut saw defendant, who was standing five to seven feet
        from the door. Defendant was within a foot of either couch. Nobody else was in the living
        room. Chesnut saw nothing in defendant’s hands. Chesnut approached defendant, pointed
        his M-4 semiautomatic carbine at him, and ordered him to lie on the ground. Defendant
        complied. Soon, another officer “flex-cuffed” defendant.
¶5          Charles Pierce, a St. Charles police officer who participated in executing the search
        warrant and collecting evidence, testified as follows. As he entered the living room, he saw
        a couch immediately to his left. The far end of the couch was no more than 10 feet from the

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       door. Immediately to his right was a shorter couch or love seat, the far end of which was
       seven or eight feet from the door. Pierce identified People’s exhibit No. 1 as a shotgun that
       the officers found underneath the love seat. He also identified People’s exhibit No. 11 as a
       photograph of the shotgun in the position that the officers found it. The shotgun had been
       “free and open on the carpet on the floor” under the love seat. The love seat’s legs were
       about four inches tall.
¶6         The parties stipulated that defendant’s guilty plea to possession of cannabis with the
       intent to deliver satisfied the State’s burden to prove that, at the time of the alleged armed
       violence, he had been committing a felony (see 720 ILCS 5/33A-2(a) (West 2008)).
¶7         Aurora police inspector Paul Lindley testified as follows. He helped to execute the search
       warrant but stayed outside until the tactical unit had “cleared the location.” Entering the
       apartment, Lindley learned that defendant had been secured on the couch in the living room.
       The couch and the love seat were about two feet apart. Lindley showed defendant a copy of
       the search warrant and gave him Miranda warnings. Lindley looked down and saw a scale
       and what looked like a bag of cannabis on the floor near defendant. He pointed to these
       objects and asked defendant what he had been doing. Defendant admitted that he had been
       up all night “weighing bags out and smoking cannabis.” Defendant was then taken to the
       police station, where he signed a Miranda waiver and again spoke to Lindley. He told
       Lindley that he had the shotgun to protect himself from gang members who might break into
       his home.
¶8         The parties stipulated to the admission of the transcript of a hearing held July 1, 2009,
       on defendant’s motion to reduce bond. At the hearing, defendant testified that, on June 19,
       2009, he lived at 217 Laurel, Unit A, with his girlfriend and their two children. At about 5:30
       a.m., he was at home when the police entered. At the time, defendant was 10 feet away,
       sleeping on the couch with his daughter. When he heard the police, he got up and walked
       toward the front door of the apartment. He had no weapons on his person.
¶9         Defendant moved for a directed finding, arguing that the State had failed to prove that,
       at the time of the alleged offense, he had been armed with a dangerous weapon (see 720
       ILCS 5/33A-2(a) (West 2008)). Defendant contended that, even viewed in the light most
       favorable to the State, the evidence failed to show that, when the police entered the
       apartment, defendant was armed; he had been standing some distance from the love seat
       under which the shotgun lay and had had neither the opportunity nor the intent to reach for
       the weapon. The judge denied defendant’s motion, explaining that People’s exhibit No. 11
       showed that the handle end of the shotgun had been “inches from the leg of the couch,” thus
       placing the shotgun “within arm’s reach” of defendant, who had testified that, just before the
       police knocked and entered, he had been sleeping on the couch.
¶ 10       Defendant then testified as follows. On the morning of June 19, 2009, he was home with
       his son and daughter. Defendant was in the living room, sleeping on the couch with his
       daughter. At about 5:30 a.m., he heard the police knock. Defendant rose and walked toward
       the door. He had put the shotgun under the love seat and had “kind of forgot[ten]” that it was
       there. When he rose, he was within four feet of the shotgun. He did not try to grab it or move
       toward the love seat. The police entered and pointed their guns at him. He put his hands up
       and was soon handcuffed.

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¶ 11       The trial judge found defendant guilty, explaining his decision as follows. As defendant
       had pleaded guilty to possessing cannabis with the intent to deliver, the State had proved the
       predicate felony for armed violence. The only issue was whether the State had proved that
       defendant had been armed with a dangerous weapon–the shotgun. Whether defendant
       actually reached for the shotgun when the police entered was irrelevant. The intent of the
       armed violence statute is to deter those who commit crimes–including drug dealers such as
       defendant–from attempting to protect their enterprises or themselves by having access to
       dangerous weapons. Here, the evidence showed that defendant had placed the shotgun under
       the love seat, so as to protect himself. Given the dimensions of the living room, the shotgun
       had been “in close proximity to [defendant] when he [was] in that room.” Therefore, the
       State had proved defendant guilty beyond a reasonable doubt. The court later sentenced
       defendant to 12 years’ imprisonment and denied his motion to reconsider the sentence.
       Defendant timely appealed.
¶ 12        On appeal, defendant argues that he was not proved guilty of armed violence, which a
       person commits when, “while armed with a dangerous weapon, he commits any felony
       defined by Illinois Law [with exceptions not pertinent here].” 720 ILCS 5/33A-2(a) (West
       2008). Defendant concedes that he committed a felony–possession of cannabis with the
       intent to deliver–and that the shotgun found under the love seat was a dangerous weapon.
       He maintains, however, that the evidence was insufficient to prove that, at any pertinent
       time, he was armed with the shotgun.
¶ 13       Defendant notes that being armed with a dangerous weapon means either having it on
       one’s person, which the State did not contend and the evidence did not support, or having
       “immediate access to or timely control over” the weapon (People v. Harre, 155 Ill. 2d 392,
       396 (1993); see People v. Condon, 148 Ill. 2d 96, 110 (1992)). Defendant argues that, under
       Condon, People v. Smith, 191 Ill. 2d 408 (2000), and People v. Shelato, 228 Ill. App. 3d 622
       (1992), the State could not obtain a conviction merely by proving that defendant committed
       the cannabis offense while being armed with the shotgun; rather, the State had to prove that
       defendant was “armed” at a time when there was the potential for the danger that the armed
       violence statute was intended to prevent. According to defendant, the only such times were
       immediately before the police entered and immediately after the police entered. Defendant
       contends that neither period satisfies the test established by the case law. For the reasons that
       follow, we disagree.
¶ 14       In considering a challenge to the sufficiency of the evidence, we ask only whether, after
       viewing all of the evidence in the light most favorable to the State, any rational fact finder
       could have found the elements of the offense proved beyond a reasonable doubt. People v.
       Ward, 154 Ill. 2d 272, 326 (1992); People v. Hill, 272 Ill. App. 3d 597, 603-04 (1995). The
       trier of fact is responsible for determining the witnesses’ credibility, weighing their
       testimony, and deciding on the reasonable inferences to be drawn from the evidence. People
       v. Lamon, 346 Ill. App. 3d 1082, 1089 (2004). Of course, while finding the facts is not our
       prerogative, the legal import of a given set of facts is a question of law that we review de
       novo. People v. Anderson, 364 Ill. App. 3d 528, 532 (2006).
¶ 15       To explain our decision, we must recapitulate the case law. In Condon, the supreme court
       held that merely possessing a dangerous weapon is not being “armed” with it. The court also

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       suggested that even committing the predicate felony while being “armed” with the dangerous
       weapon is not necessarily armed violence. In Condon, police officers entered and searched
       the home where the defendant lived and sold cocaine. They found him in the kitchen, where
       there were no weapons. There were guns elsewhere in the house, far out of the defendant’s
       reach. There was no evidence of when, if ever, he had had immediate access to the guns.
       Rejecting the State’s argument that the defendant was guilty of armed violence merely
       because he had engaged in the ongoing drug felony while constructively possessing the guns,
       the court first noted that the purpose of the statute is “to deter felons from using dangerous
       weapons so as to avoid the deadly consequences which might result if the felony victim
       resists.” Condon, 148 Ill. 2d at 109. The court continued:
           “Were we to find the presence of guns in the house with the cocaine enough to violate
           the armed violence statute, [that] would be contrary to the purpose for which the statute
           was enacted. Rather, we find that defendant would have had to carry a weapon on his
           person or *** to have had ‘immediate access to’ or ‘timely control over’ a weapon when
           the police entered to have been ‘otherwise armed.’ ” (Emphasis added.) Id. at 110.
¶ 16       Although the court was concerned primarily with the meaning of “armed,” the use of the
       language that we have emphasized suggests that merely committing the predicate felony
       while being “armed” is not armed violence, at least if there is not an imminent threat of
       violence.
¶ 17       In Harre, the defendant rode on the passenger’s side of the hood of a car, then jumped
       down and took two steps toward the rear of the car until he was next to the partly open
       window of the passenger’s door. A police officer, with his gun drawn, identified himself and
       ordered the defendant to stand with his hands against the hood. The defendant had the keys
       to the car; illegal drugs were inside the car; and two guns were in the middle of the car’s
       front seat. Harre, 155 Ill. 2d at 394-95.
¶ 18       Affirming the defendant’s conviction of armed violence, the supreme court concluded
       that the defendant had been “armed” with the guns, as they had been within his immediate
       reach as he had stood next to the car door and the partially open window. Id. at 396. The
       defendant easily could have reached for the guns. In language suggesting that the
       defendant’s guilt did not depend on the circumstances of his encounter with the police, the
       court noted that the evidence allowed the inference that the defendant “had moments before
       his apprehension been riding in the car on his way to a drug delivery with a weapon inches
       from his grasp.” Id. at 400.
¶ 19       The court noted further that, just before the police stopped him, the defendant had moved
       closer to the car door and had almost opened it, which would have given him complete
       access to and control over the guns. When the officer ordered him back, the defendant did
       not actually try to get one of the guns. However, his submission to the officer’s show of
       force did not negate his guilt of armed violence. The court explained:
           “[T]he determination of whether a defendant is armed is not made at the moment of
           arrest. Rather, armed violence occurs if a defendant commits a felony [while he is]
           armed. We would completely eviscerate the deterrent purpose of the armed violence
           statute if we were to require police officers to wait to announce their presence and effect
           an arrest until a defendant’s access and control over a readily available weapon had

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            ripened into the temptation to take actual physical possession ***.” Id. at 401.
¶ 20        Harre clarified that it is the possibility of violence, and not the defendant’s actual intent
       to commit or threaten violence, that is crucial. Moreover, whatever the import of Condon’s
       emphasis on “when the police entered” (Condon, 148 Ill. 2d at 110), the defendant’s guilt
       need not depend on what happens after he has been apprehended or arrested–and may even
       be proved by what happened before the police arrived at all.
¶ 21        The supreme court next addressed a police-encounter situation in Smith. There, the
       defendant had an unloaded gun, which he threw out a bedroom window as the police
       approached his apartment and its drug-laden living room. The supreme court majority held
       that the defendant was not guilty of armed violence. The majority focused on Condon’s
       statement that there (as in Smith) the defendant did not have immediate access to or timely
       control over the weapon when the police entered. Smith, 191 Ill. 2d at 412. The court also
       explained that the policy behind the armed violence statute would not be served–and could
       be frustrated–by applying it to someone who dropped an unloaded gun out the window
       before the police arrived. Id. at 412-13.
¶ 22        A concurrence noted that the defendant deliberately chose to avoid the danger that the
       armed violence statute sought to address, so that the statute served its deterrent purpose.
       However, the concurrence also noted that the defendant did not possess or have immediate
       access to a weapon “when the police arrived.” Id. at 415 (Rathje, J., specially concurring).
¶ 23        The three dissenters noted that the majority opinion ignored Harre, and they asserted that
       it had implicitly overruled Harre. They also noted that the defendant, unlike the defendant
       in Condon, had had immediate access to a weapon immediately before he was arrested. The
       danger that the armed violence statute addressed was present until he tossed out the gun.
       Also, the dissenters urged, perhaps inconsistently with Condon, that all the State needed to
       show was that the defendant was armed when he committed the predicate offense Id. at 417-
       18 (Miller, J., concurring in part and dissenting in part, joined by Freeman and McMorrow,
       JJ.), 419, 420 (McMorrow, J., concurring in part and dissenting in part, joined by Miller and
       Freeman, JJ.).
¶ 24        In Anderson, police officers heard a report of a man discharging a gun; when they arrived
       at the scene, they saw the defendant ducking down behind a fence. The officers stopped,
       exited, and identified themselves. The defendant ran; the police pursued him; and the
       defendant threw down a gun, ran some more, and was arrested. He was carrying illegal
       drugs. Anderson, 364 Ill. App. 3d at 529-30.
¶ 25        The defendant had had the gun when the officers first encountered him; he argued that
       that was not sufficient to make him guilty of armed violence, because he no longer had the
       gun when the police arrested him. Id. at 537. We discussed the supreme court’s opinions and
       concluded that Smith does not make the moment of arrest the “determinative point”; instead,
       the determinative point is “the moment when the defendant no longer poses the kind of threat
       that the armed violence law was designed to prevent.” Id. at 541. What was crucial in Smith
       was not the “moment of arrest” but that the defendant no longer was “armed” when the
       police entered. Id. at 541-42. Also, Harre was consistent with Smith, because there (unlike
       in Smith), the defendant possessed the gun when there was an immediate potential for
       violence. Id. at 542. Thus, the defendant in Anderson was guilty of armed violence, because

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       the potential for violence was present between when he first encountered the police and
       when he abandoned the gun. That the defendant did not try to use the gun against the officers
       was legally irrelevant–just as it had been in Harre.
¶ 26        We also note two opinions that predate Condon but are consistent with that opinion and
       the others that we have noted. In People v. Bond, 178 Ill. App. 3d 1020 (1989), police
       officers knocked on the defendant’s door; they heard noises from inside; and they broke
       down the door, finding a sofa blocking their way. Later, they found drugs. There was a
       loaded handgun under the sofa where the defendant had been sitting. Id. at 1021. Affirming
       the defendant’s conviction of armed violence, the appellate court explained that the
       defendant had been armed, as the gun had been well within his reach as he sat on the sofa.
       Thus, the situation presented the special risk of violence that the statute had been intended
       to address. Id. at 1023.
¶ 27        In Shelato, the police had a warrant to search the defendant’s mobile home. Two officers
       knocked; the defendant told them to come in. The officers entered the living room and saw
       that the defendant was talking on the phone. They told him that they wanted to buy a car
       outside; the defendant hung up the phone, and the officers disclosed their real purpose. The
       defendant stayed seated on his couch. He did not resist as several officers searched the home.
       On the floor was a duffel bag, inside of which were numerous bags of marijuana, a loaded
       gun, and a box of shells. The gun was not visible when the bag was first opened, and it was
       wrapped in a rag and located toward the bottom of the duffel bag, underneath the marijuana.
       Shelato, 228 Ill. App. 3d at 623-24.
¶ 28        The appellate court vacated the defendant’s conviction of armed violence, holding that
       the gun had not been immediately accessible to him. The court explained that, when the
       officers entered, the gun was “some distance” from the defendant, on the other side of a
       room that was at least 15 feet wide. Id. at 627. Moreover, even had the defendant been nearer
       the duffel bag, he could not have reached the gun without unzipping the bag, digging beneath
       the bags of marijuana, and removing the gun from the rag. The court thus distinguished the
       case from Bond. Id.
¶ 29        Applying the statute, as judicially construed, to this case, we hold that defendant was
       proved guilty of armed violence. Specifically, we note the following. First, defendant’s
       reliance on Smith is misplaced. Here, defendant never abandoned the dangerous weapon at
       all. A fortiori, he did not abandon the weapon before its presence created the type of danger
       that the armed violence statute was intended to prevent. Second, the lack of actual violence
       in this case is a red herring. The defendants in Harre and Anderson did not actually try to
       use their weapons against the police (or anyone else); their convictions were affirmed
       anyway. The potential for violent encounters, not whether–in hindsight–any such encounters
       took place, is the concern of the armed violence statute.
¶ 30        In this case, defendant was “armed with a dangerous weapon” (720 ILCS 5/33A-2(a)
       (West 2008)) under the type of circumstances that the armed violence statute was designed
       to address. When the police arrived outside his apartment, defendant was lying on the couch,
       perhaps a foot or two away from the love seat under which he had placed the shotgun. The
       photograph of the love seat and the shotgun show that, although the coffee table might have
       been a slight inconvenience, defendant would have had little difficulty getting up, reaching

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       for the gun, and taking control of it as the doors of the apartment opened. That he did not do
       so, and that he did not attempt resistance after the police entered the apartment, does not
       rescue him from guilt of armed violence. Defendant’s situation is less similar to those of the
       defendants in Condon, Smith, and Shelato, all of whom were separated from their weapons
       by the time that they encountered the police, than it is to those of the defendants in Anderson
       and, especially, Bond.
¶ 31       More generally, defendant’s conviction is consistent with the intent of the armed
       violence statute, which was enacted in response to the legislature’s conclusions that (1)
       “[t]he use of a dangerous weapon in the commission of a felony offense poses a much
       greater threat to the public health, safety, and general welfare, than when a weapon is not
       used in the commission of the offense” (720 ILCS 5/33A-1(a)(1) (West 2008)); and (2) “the
       use of a firearm greatly facilitates the commission of a criminal offense” (720 ILCS 5/33A-
       1(a)(2) (West 2008)). Defendant’s conviction is, therefore, consistent with the legislature’s
       intent to deter the use of firearms in the commission of felony offenses. See 720 ILCS
       5/33A-1(b)(1) (West 2008). The evidence showed that defendant was in the business of
       selling cannabis, an enterprise that he knew was dangerous, and that he protected his
       business with his shotgun, kept close to his merchandise. He was no less armed than a liquor
       store owner who keeps a weapon under the counter to protect himself and his money from
       potential robbers.
¶ 32       The judgment of the circuit court of Kane County is affirmed.

¶ 33      Affirmed.




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