2024 IL App (1st) 230122-U No. 1-23-0122 Order filed October 16, 2024 Third Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 21 CR 6402 ) BRANDON HARRIS, ) Honorable ) Michael J. Kane, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court. Justices Reyes and D.B. Walker concurred in the judgment. ORDER ¶1 Held: We affirm defendant’s conviction for aggravated unlawful use of a weapon over his contention that the State did not prove his knowing possession of a firearm because he was unconscious when it was recovered from underneath his thigh. Moreover, the statute under which defendant was convicted does not violate the second amendment. ¶2 Following a bench trial, defendant Brandon Harris was found guilty of two counts of aggravated unlawful use of a weapon (AUUW), and one count of unlawful use or possession of a weapon by a felon (UUWF). At sentencing, the trial court merged the guilty findings and imposed No. 1-23-0122 a three-year prison term for AUUW under count I. ^[1] On appeal, defendant contends that the State failed to establish his knowing possession of a firearm beyond a reasonable doubt because he was unconscious when it was recovered from under his thigh. He further contends that the AUUW statute violates the second amendment under New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. ^[1] (2022). We affirm. ^[2] ¶3 Defendant was charged by indictment with two counts of AUUW and one count of UUWF following a February 27, 2021, incident. Relevant here, count I for AUUW alleged that defendant knowingly carried on or about his person a firearm that was uncased, loaded, and immediately accessible and that he had not been issued a concealed carry license (CCL) at the time of the offense. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020). ¶4 At trial, Chicago police officer Anderson testified that, around 1:30 a.m. on February 27, 2021, a group waved down her squad car and related that a vehicle, containing two unconscious people, was stopped in a traffic lane. ^[3] The group further stated that a female passenger appeared as though she had been beaten. Anderson relocated to the vehicle and observed an unconscious man, whom she identified in court as defendant, in the driver’s seat and an unconscious woman in the front passenger seat. She did not remember if the vehicle was running. When a paramedic opened the front driver’s side door, Anderson, who was positioned at the rear driver’s side door,

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No. 1-23-0122 observed the butt of a firearm “sticking *** from underneath” defendant’s thigh. Anderson recovered the firearm, which was loaded.

¶5 When the paramedics could not wake defendant and the female passenger, Narcan was administered and both became alert. After defendant exited the vehicle, Anderson asked whether he had a valid Firearm Owners Identification (FOID) card or CCL, and learned that he did not.

Following a “LEADS inquiry,” Anderson learned that defendant did not possess a valid FOID card or CCL, and that his driver’s license was revoked. Later, at a police station, Anderson learned that defendant had a prior felony conviction.

¶6 During a conversation, defendant explained that the female passenger called him and asked him to sit with her in the vehicle because it was disabled, she was waiting for a tow truck, and she was scared. Anderson observed damage to the vehicle’s front right tire and opined that an axle

may have been broken. She also observed injuries and blood on the female passenger’s face. The passenger gave her name, and a search revealed that the vehicle was registered to her.

¶7 Anderson wore a body camera and testified that its footage truly and accurately depicted the events of February 27, 2021. The State entered the footage into evidence. The footage, which was published, is included in the record on appeal and this court has viewed it.

¶8 In the footage, Anderson approaches a vehicle that has flashing hazard lights. A paramedic opens the front driver’s side door. A man is seated in the driver’s seat with his head turned toward the door. Anderson points her flashlight at the back driver’s side window. When Anderson turns back to the open driver’s side door, she says, “ah, hold on” and reaches around the paramedic into the vehicle. At this point, a small portion of the butt of a firearm is visible under the man’s thigh.

Anderson removes the firearm, walks to the passenger side of the vehicle, and sees a person inside.

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Anderson’s partner helps her to put on gloves. Then, the sounds of a firearm being cleared are

heard and Anderson picks up a bullet. Anderson’s partner asks where she found the firearm, and she replies, “under his thigh.”

¶9 During cross-examination, Anderson did not recall whether defendant reached to his left upon regaining consciousness. Anderson further testified that the female passenger only gave a first name and refused to spell it, and then stopped answering questions. Anderson did not know if the firearm was submitted for fingerprints or DNA testing.

¶ 10 During questioning by the trial court, Anderson testified that the firearm was black, semi- automatic, and loaded. Defendant was unconscious when she removed the firearm.

¶ 11 The parties entered a stipulation that defendant did not have a valid FOID card or CCL on

February 27, 2021. The State entered into evidence a certified copy of defendant’s prior conviction for driving with a revoked or suspended driver’s license in case number 14 C 66027801.

¶ 12 The defense presented Shannan Sarpy, who testified that on February 27, 2021, she was driving, hit a pothole, and was unable to pull over or steer her vehicle. She called defendant because he lived in the area. When defendant arrived, he examined her vehicle and stated that the axle was

broken. Sarpy called for a tow truck and was told it would take an “hour or so.” At this point, Sarpy was in the front passenger seat and defendant was in the driver’s seat. Defendant fell asleep and Sarpy was unable to wake him. She called the tow truck driver again.

¶ 13 Sarpy owned a firearm and at that time had a valid FOID card and CCL. At trial, she identified copies of these documents, as well as the receipt for her .45-caliber semi-automatic firearm. She never told defendant that she owned a firearm and did not show or give it to him that day. Rather, it was locked in the vehicle’s glove box.

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¶ 14 Once defendant fell asleep, Sarpy became uncomfortable when she saw “guys walking down the street,” so she retrieved the firearm and put it in her hoody pocket. However, because the pocket was “pretty shallow,” the firearm stuck out “a little bit.” Sarpy then exited the vehicle and went to the driver’s side to wake defendant. The firearm slipped out of her pocket, so she put it on the seat. There was room on the seat because defendant was in the “fetal position” leaning toward the passenger seat. When Sarpy could not wake defendant, she went back to the passenger side and sat down. She called the tow truck driver another time, tried to wake defendant, and then fell asleep. She was woken by a paramedic.

¶ 15 During cross-examination, Sarpy testified that she was unfamiliar with the area, but knew that defendant lived nearby. When defendant arrived, he asked her to move to the passenger seat and fell asleep after 20 to 30 minutes. She took her firearm out because she felt unsafe. When she tried to wake defendant, her firearm was “slipping,” so she set it down and continued trying to wake defendant. She returned to the passenger seat because she was cold and afraid. Sarpy was “a

little concerned” about defendant, but assumed he was tired. When the paramedics woke her, the vehicle door was open. She was unsure how the paramedics accessed the vehicle because she locked the doors.

¶ 16 By the time Sarpy explained to officers that the firearm belonged to her, defendant was in handcuffs. When she asked why defendant was going to jail, she was told that it did not matter who owned the firearm because he was already cuffed. Sarpy did not “know” defendant to “do drugs.” She was injured when she hit her head in a friend’s bathroom earlier that evening.

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¶ 17 During examination by the court, Sarpy asserted that she did not “do drugs” and did not know anything about defendant doing drugs. She “just sat” her firearm near defendant. She asserted that she cooperated with police to the best of her ability, but felt “dazed.”

¶ 18 In finding defendant guilty of two counts of AUUW and one count of UUWF, the trial

court found that Sarpy may have owned the firearm but that the issue was who possessed it. The court found Sarpy’s testimony made “no sense” because, if she retrieved the firearm due to fear, she would have kept it in her hands “all the time” rather than leaving it under defendant’s leg.

¶ 19 Defendant filed a motion for a new trial alleging, relevant here, that he was not proven guilty beyond a reasonable doubt. At the hearing on the motion, defense counsel argued that there was no testimony that defendant held or had knowledge of the firearm; rather, he was unconscious when it was recovered. In denying defendant a new trial, the trial court found Anderson’s testimony to be consistent with the body camera footage, which depicted where the firearm was found under defendant. Further, the court did not believe “a word” that Sarpy said.

¶ 20 Defendant’s presentence investigation (PSI) report listed, in pertinent part, 14 prior convictions for driving on a revoked or suspended license, 6 prior convictions for ID theft, 4 prior convictions for aggravated ID theft, one prior conviction for driving under the influence, and one

prior conviction for battery and resisting/obstructing a peace officer. ^[4] Following argument, the trial court merged the guilty findings on counts II (AUUW) and III (UUWF) into count I and imposed a three-year prison term for AUUW under count I.

¶ 21 On appeal, defendant first contends that he was not proven guilty beyond a reasonable doubt of AUUW because the State failed to establish that he knowingly possessed the firearm

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No. 1-23-0122 recovered from the vehicle where he was discovered unconscious. Defendant notes that no one testified that he possessed the firearm and that neither the vehicle nor the firearm belonged to him.

¶ 22 In reviewing the sufficiency of the evidence, “the question 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.’ ” (Emphasis in original.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard applies whether the evidence is direct or circumstantial and does not allow this court to

substitute its judgment for that of the fact finder on issues involving witness credibility and the weight of the evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). This court will not retry

a defendant, and on review, we must draw all reasonable inferences from the evidence in favor of the State. People v. Jones, 2023 IL 127810, ¶ 28. Further, a reviewing court may affirm on any grounds supported by the record. People v. Smith, 2021 IL App (1st) 190421, ¶ 90; see also People

v. Daniel, 2013 IL App (1st) 111876, ¶ 37 (“we may affirm on any basis appearing in the record, whether or not the trial court relied on that basis or its reasoning was correct”).

¶ 23 In a bench trial, the trial court is responsible for determining the credibility of the witnesses, weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences

therefrom. People v. Siguenza-Brito, 235 Ill. 2d 213, 224 (2009). When weighing the evidence, the trial court is not required to disregard the inferences that flow naturally from that evidence; nor must it search for any possible explanation consistent with innocence and raise it to the level of reasonable doubt. Jackson, 232 Ill. 2d at 281. Ultimately, we reverse a defendant’s conviction

based upon insufficient evidence only when the evidence is so unreasonable, improbable, or unsatisfactory that there is reasonable doubt as to his guilt. Jones, 2023 IL 127810, ¶ 28.

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¶ 24 To sustain a conviction for AUUW as charged in count I of the indictment, the State had to establish beyond a reasonable doubt that defendant knowingly carried on or about his person a firearm that was uncased, loaded, and immediately accessible and that he had not been issued a

CCL at the time of the offense. See 720 ILCS 5/24-1.6(a)(1), (a)(3)(A-5) (West 2020). Here, defendant contends that the State failed to establish his knowledge and control of the firearm.

¶ 25 Possession of a firearm may be actual or constructive. Jones, 2023 IL 127810, ¶ 30. Actual possession need not be demonstrated if constructive possession can be inferred. Daley v. El

Flanboyan Corp., 321 Ill. App. 3d 68, 75 (2001).

¶ 26 Constructive possession exists where a defendant had knowledge of the presence of the firearm and exercised immediate and exclusive control over the location where it was found. Id.

Control is established when a defendant has the capability and intent to maintain dominion and control over contraband. People v. Spencer, 2012 IL App (1st) 102094, ¶ 17. Proof that a defendant had control over the location where contraband was found gives rise to an inference of his knowledge and possession of it. Jones, 2023 IL 127810, ¶ 30. Knowledge may be demonstrated by evidence of a defendant’s declarations, acts, or conduct from which one can infer that he knew the contraband existed in the place where it was found. Spencer, 2012 IL App (1st) 102094, ¶ 17.

A defendant’s proximity to contraband is another factor courts have found relevant when determining constructive possession. People v. Wise, 2021 IL 125392, ¶ 29.

¶ 27 Knowledge and possession are questions of fact. People v. Loggins, 2019 IL App (1st)

160482, ¶ 45. When determining whether constructive possession has been established, a trier of fact is entitled to rely on reasonable inferences of knowledge and possession, absent other factors that might raise a reasonable doubt of a defendant’s guilt. Spencer, 2012 IL App (1st) 102094, 230129

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¶ 17. Constructive possession is often established by entirely circumstantial evidence. People v. McCarter, 339 Ill. App. 3d 876, 879 (2003).

¶ 28 Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have concluded that defendant, at a minimum, constructively possessed the firearm

recovered by Anderson. Here, police officers and paramedics found defendant unconscious in the driver’s seat of a vehicle and a loaded firearm was recovered from underneath his thigh. The firearm was positioned between the driver’s seat cushion and defendant’s leg such that only a small

portion of the butt was visible. Given that the firearm was hidden under defendant’s thigh and within his immediate reach, the trier of fact could reasonably infer that it was in his immediate dominion and control, giving rise to an inference of his knowledge and possession of it. Jones, 2023 IL 127810, ¶ 30.

¶ 29 Although the firearm was registered to Sarpy and she was present in the vehicle, those facts were not fatal to the State’s case, as indicia of joint access do not negate a defendant’s constructive possession of contraband. See People v. Jackson, 2019 IL App (1st) 161745, ¶ 27 (another person’s

access to the contraband does not diminish constructive possession); see also People v. Maldonado, 2015 IL App (1st) 131874, ¶ 43 (constructive possession can be established when there is joint possession or others have access to the area). While defendant was unconscious when the firearm was recovered, his knowledge of the firearm before losing consciousness can be reasonably inferred from the fact that it was wedged underneath his thigh such that only a small portion of the butt was visible. See People v. Givens, 237 Ill. 2d 311, 335 (2010) (“where

possession has been shown, an inference of culpable knowledge can be drawn from the surrounding facts and circumstances”).

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¶ 30 Nevertheless, defendant argues that the State’s failure to provide a witness who observed him possess the firearm and physical evidence linking him to it were fatal to its case.

¶ 31 Contrary to defendant’s position, Anderson’s testimony describing the placement of the firearm and body camera footage depicting the firearm’s location sufficiently linked defendant to it. See People v. Campbell, 2019 IL App (1st) 161640, ¶ 33 (“if witnesses’ testimony is otherwise credible, the State [is] not required to present additional physical evidence” linking the defendant

to contraband (internal quotation marks omitted)). Moreover, while Sarpy testified that she left the firearm on the driver’s side seat while trying to wake defendant, the trial court found her testimony incredible, noting that a person who retrieved a firearm due to fear would presumably retain it. See

People v. Jacobs, 2016 IL App (1st) 133881, ¶ 53 (a trier of fact is not “required to accept the defendant’s version of the facts”). A trier of fact need not disregard inferences which flow normally from the evidence or seek all possible explanations consistent with innocence and raise them to the level of reasonable doubt. In re Jonathon C.B., 2011 IL 107750, ¶ 60.

¶ 32 In the case at bar, a rational trier of fact could have found defendant constructively possessed the firearm based upon Anderson’s testimony and the body camera footage establishing it was wedged under defendant’s thigh such that only the butt was visible. Ultimately, we reverse a defendant’s conviction only when the evidence is so unreasonable, improbable, or unsatisfactory that reasonable doubt of his guilt remains (Jones, 2023 IL 127810, ¶ 28); this is not one of those cases. We therefore affirm defendant’s conviction for AUUW.

¶ 33 Defendant next contends, for the first time on appeal, that his AUUW conviction violates the second amendment under Bruen.