
NO. 4-95-1005



IN THE APPELLATE COURT



OF ILLINOIS



FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,	) 	Appeal from

Plaintiff-Appellee,			)	Circuit Court of

v.						)	Vermilion County

GREG A. HESLER,					)	No. 94CM995

Defendant-Appellant.		)	

)	Honorable

)	Joseph P. Skowronski,

 								)	Judge Presiding.

_________________________________________________________________







JUSTICE COOK delivered the opinion of the court:



Defendant Greg Hesler was charged with unlawful use of weapons in violation of section 24-1(a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/24-1(a)(4) (West 1994)).  Follow­ing a bench trial, defendant was convicted.  Defendant appeals, chal­lenging the sufficiency of the evidence to sustain the convic­tion.  We affirm.

On October 15, 1994, at about 10:40 p.m., Timothy Hetrick, a police officer for the City of Danville, was conduct­ing roadside safety checks.  The check involved stopping vehicles and checking for drivers with suspended licenses or who were intoxi­cated.  Hetrick approached defendant's vehicle, a black Chevy pickup truck.  As soon as he started talking to defendant, he noticed there was a revolver on the seat of the truck next to defendant's right leg.  The cylinder of the revolver was missing.

Hetrick "drew [his] duty weapon.  Ordered [defen­dant] to put his hands out the window."  Defendant was cuffed and

placed in the backseat of a squad car.  Hetrick testified that "[a]fter [defendant] was removed [from his truck,] we done [
sic
] a further search of the vehicle.  I found a cylinder, which was out of the revolver, laying [
sic
] on the floor, which would have been underneath [defendant's] right leg.  And it was loaded with six live rounds of .22 ammunition."  Subsequently, Hetrick testified that he did not believe all six rounds were actually in the cylinder; he believed a couple of them had fallen out on the floor.

Hetrick was of the opinion that it would take less than 30 seconds to reassemble the gun, although he could not recall whether he actually attempted to do so himself.  Hetrick did not see defendant remove the cylinder from the gun, nor did he see defendant make any movements that would suggest defendant was removing the cylinder.  Nonetheless, Hetrick testified that it was his opinion that defendant had removed the cylinder only upon seeing the police officers.  He based his opinion upon three facts:  (1) the presence of only six rounds suggested to Hetrick that the gun was not going to be used for target practice; (2) that the weapon was on the seat next to defendant suggested to Hetrick that defendant carried the gun for protection; and (3) that the cylinder was found on the floor­board, "as if someone had just dropped it in the floorboard, it's just not--not any type of common sense way to be transported [
sic
]."  At the end of the State's evidence, defendant asked for a "directed verdict."  Defendant's motion was denied.

Defendant testified that the gun was not assembled while it was in his truck.  Defen­dant said the revolv­er was wrapped in a towel and lying on the seat next to him.  When he saw that he was being stopped, he unwrapped the disassem­bled revolver and placed it on the seat next to him so that it would be in plain sight.  Accord­ing to defendant, the cylinder and the six rounds were in a map pouch on the front of the driver's seat, near his legs.  After his arrest, defendant said he bor­rowed a friend's gun, which is identical to his, and attempted to assem­ble the gun under like circumstances (in the dark).  Defen­dant testified it took over four minutes to assemble and load the gun under those circum­stances, but on cross-examina­tion he admitted that his assem­bly of the gun included checking it for obstruc­tions to make sure the gun could be properly fired.

Hetrick testified, upon rebuttal, that he did not recall seeing a towel or a map pouch in defendant's truck.  After hearing argument, the trial court found defendant guilty.  The trial court was of the opinion that defendant failed to prove by a preponderance of the evidence that he is entitled "to the exception as far as transportation of weapons broken down in a non-functioning state or not immediately accessible to him."  The trial court then concluded that, "[b]ased upon the testimony of the officer as to the position of the weapon and its accessory[,] it would appear to the court that this was immediately accessible to the defendant and could have been assembled *** in a very brief period of time."  Not having any prior arrests or convic­tions, except for a speeding ticket, the court sentenced defen­dant to one year's conditional discharge and ordered defendant to pay $150 plus costs.  In addition, defendant was ordered to pay a $100 public defender fee.

Defendant's sole contention upon appeal is that he was not proved guilty beyond a reasonable doubt.  Where a defen­dant raises the ques­tion of reason­able doubt on review, the relevant inquiry is whether, "'after view­ing the evidence in the light most favor­able to the prose­cution, 
any
 rational trier of fact could have found the essential ele­ments of the crime beyond a reason­able doubt.'"  
People v. Burrows
, 148 Ill. 2d 196, 225, 592 N.E.2d 997, 1009 (1992), quoting 
People v. Steidl
, 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991).  This stan­dard is appli­ca­ble whether the evidence is direct or circum­stantial.  
People v. Ward
, 154 Ill. 2d 272, 314, 609 N.E.2d 252, 269 (1992).  Circum­stantial evidence is suffi­cient to sustain a conviction if it satisfies proof beyond a reasonable doubt of the elements of the crime charged.  
People v. Gomez
, 215 Ill. App. 3d 208, 216, 574 N.E.2d 822, 827 (1991), citing 
In re Winship
, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).  It is the func­tion of the fact finder to weigh the evi­dence, judge the credibility of the witness­es, and resolve conflicts in the evidence.  
People v. Neither
, 166 Ill. App. 3d 896, 900, 520 N.E.2d 1247, 1249 (1988).

Defendant was convicted of unlawful use of weapons.  720 ILCS 5/24-1(a)(4) (West 1994).  In pertinent part, that statute reads:  

"A person commits the offense of unlawful 

use of weapons when he knowingly: 

* * * 

(4) carries or possesses in any 

vehicle or con­cealed on or about his 

person except when on his land or 

in his own abode or fixed place of 

busi­ness any *** revolv­er ***."  720 

ILCS 5/24-1(a)(4) (West 1994).  

There is no dispute that defen­dant possessed a revolver in his vehicle and that he was neither on his land, nor in his abode or  fixed place of busi­ness.  Rather the dispute in this case focuses upon whether defendant fell within a statutory exemption to the unlawful use of weapons charge.  Section 24-2(b)(4) of the Code provides that section 24-1(a)(4) does not apply or affect the "[t]ransportation of weapons that are broken down in a non-func­tioning state or are not immediately accessible."  720 ILCS 5/24-2(b)(4) (West 1994).  A person charged with unlawful use of weapons must prove, by a preponder­ance of the evidence, that he falls within one of the exemptions.  720 ILCS 5/24-2(h) (West 1994); 
People v. Smith
, 71 Ill. 2d 95, 109, 374 N.E.2d 472, 478 (1978); 
cf
. 720 ILCS 5/3-2 (West 1994) (affirma­tive defens­es).

Defendant relies upon 
People v. Freeman
, 196 Ill. App. 3d 370, 553 N.E.2d 780 (1990).  In 
Freeman
, the defendant's car was stopped because it did not have a functioning license plate light.  The police officer claimed that, as he approached the car, he saw the defendant making movements that suggested to the police officer that the defendant was sticking something in his pocket.  Upon finding that the defendant did not have a valid driver's license, the defendant was arrested and searched.  The cylinder to a revolver was found in the defendant's left pants pocket, and a revolver was found under a cardboard box on the front seat.  The trial court did not believe the police officer's testimony that the defendant disassembled the gun upon the officer's approach.  Nonetheless, the trial court convicted the defendant because of the court's belief that the pistol was within the defendant's immediate control.  The appellate court reversed because a "broken down, cylinderless pistol, incapable of being fired, not in immediate operating condition, and not immediately accessible" does not fall within the purview of the unlawful use of weapons statute.  
Freeman
, 196 Ill. App. 3d at 373, 553 N.E.2d at 782.

Freeman
 is confusing, as it seems to mix the exemp­tions found in section 24-2(b)(4) of the Code.  As noted, however, that subsection states that sec­tion 24-1(a)(4) does not apply or affect the "[t]ransportation of weapons that are broken down in a non-func­tioning state 
or
 are not immediately accessi­ble."  (Emphasis added.)  720 ILCS 5/24-2(b)(4) (West 1994).  Whether the weapon is broken down and whether the weapon is inaccessible constitute separate exceptions.

There are at least three ways an average citizen can legally transport a firearm.  First, the possessor of a valid firearm owner's identification card (FOID card) can legally transport an unloaded firearm so long as it is enclosed in a container.  720 ILCS 5/24-2(i) (West 1994); 
People v. Bruner
, 285 Ill. App. 3d 39, 42-43, 675 N.E.2d 654, 656 (1996).  Second, a person can legally transport a firearm by placing it in an area that is not immediately accessible, such as a locked trunk.  720 ILCS 5/24-2(b)(4) (West 1994).  Finally, a person can legally transport a firearm that is "broken down in a non-func­tioning state."  720 ILCS 5/24-2(b)(4) (West 1994).  The first two methods are inapplicable to the instant case, and defendant does not argue otherwise.  Rather, defendant argues that he proved, by a preponderance of the evidence, that he was entitled to the "broken down" exemption.

Under the "broken down" exemption, removing the cylin­der from a revolver or the bolt from a rifle would render the weapon legal for transportation purposes, even if the two parts were sitting next to each other on the front seat of the vehicle.  
Cf
. 
People v. White
, 253 Ill. App. 3d 1097, 1098, 627 N.E.2d 383, 384 (1993) (suggesting
 that, in a prosecution for possession of fire­arms by a felon, "tempo­rari­ly inoper­a­ble fire­arms which can be made opera­ble within a reason­able time fall within the pur­view of the statutes governing use and posses­sion of fire­arms").  The statute re­quires only that the weapon be broken down and in a nonfunc­tion­ing state, and nothing more.  Any other conclusion would make it difficult for owners of pickup trucks and vans to transport firearms.

The evidence in this case establishes that defendant's revolver was broken down by the time Hetrick reached defendant's truck.  However, that is not the only relevant time period:  if defendant disassembled the weapon because he saw he was being approached by the police, then defendant was guilty of unlawful use of a weapon in violation of section 24-1(a)(4) of the Code.  720 ILCS 5/24-1(a)(4) (West 1994).

  		In the instant case, the trial court was somewhat unclear as to its rationale for finding guilt.  Nonetheless, reading the comments of the trial judge in their entirety leads us to conclude that the judge disbelieved defendant's claim that he had removed the cylinder prior to trans­port­ing the weapon.  First, the trial judge distinguished 
Freeman
 because the trial court there found
 the defendant had broken down the gun before transporting the weapon.  Next, the trial court noted Hetrick's testimony regarding the position of the gun, the position of the cylinder, and the position of the ammunition and then stated that defen­dant had failed to prove by a prepon­der­ance of the evidence that "he is entitled to the excep­tion as far as trans­portation of weapons broken down in a non-functioning state or not immediately acces­sible to him."  In short, the trial court disbelieved defendant's claim that he had disas­sem­bled the revolv­er prior to putting it in his truck.

The trial court then concluded that, based upon the proxim­i­ty of the revolver and the cylinder to defendant, the gun was "immediately accessible to the defendant and could have been assembled *** in a very brief period of time."  As noted, defen­dant was not required to show the parts of the gun were inacces­sible, so long as he had shown the gun was broken down in a nonfunc­tion­ing state.  Nonetheless, it was necessary for the court to address the revolver's acces­si­bil­i­ty.  The deter­mina­tion of whether a defen­dant is entitled to the "broken down" exemption requires the trier of fact to make a single determina­tion:  was the firearm disassembled during the 
relevant
 time period?  If the answer to the question is "yes," then the trans­portation was lawful.  However, if the answer is "no," then the fact finder must deter­mine whether the firearm was immediate­ly accessible, because it is legal to trans­port a fully assembled firearm so long as it is not immediately accessible.  In the instant case, the trial court rejected defendant's claim that the revolv­er was disassembled prior to his being stopped by the police.  It is uncon­troverted that the fully assembled weapon would have been immedi­ately accessible, and the trial court's comments on the accessi­bility of the revolver, in this respect, were proper.

Viewing the evidence in the light most favorable to prosecution, the cylinderless revolver was on the seat next to defendant, the cylinder and ammunition were on the floor at his feet.  It is reasonable to infer from this evidence that defen­dant disassembled the weapon immediately prior to Hetrick's approach.  The trial court could have reasonably concluded the State proved the essential elements of the crime beyond a reason­able doubt.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McCULLOUGH and GREEN, JJ., concur.

