{
  "id": 2976071,
  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED COOK, Defendant-Appellant",
  "name_abbreviation": "People v. Cook",
  "decision_date": "1977-03-03",
  "docket_number": "No. 62479",
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  "casebody": {
    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED COOK, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE ROMITI\ndelivered the opinion of the court:\nFred Cook, hereinafter defendant, was charged in a two count indictment with unlawful use of weapons in that he knowingly carried a pistol concealed in a motor vehicle (Ill. Rev. Stat. 1973, ch. 38, par. 24\u2014 1(a)(4)), and in a second count with having committed that same offense within five years of his release from the penitentiary following a felony conviction (Ill. Rev. Stat. 1973, ch. 38, par. 24 \u2014 1(b)), thus making this offense a Class 3 felony. Following a bench trial defendant was convicted on the second count and was sentenced to the penitentiary for a term of one to three years.\nDefendant appeals his conviction, contending that the evidence at trial established the applicability of the statutory exemption for guns which are not immediately accessible. (Ill. Rev. Stat. 1973, ch. 38, par. 24\u2014 2(b)(4).) Defendant also contends that the trial court erred in finding him in constructive possession of the gun in issue.\nFor the reasons hereinafter set forth we reverse the conviction.\nAt trial State witness Willie Graham, on probation for manslaughter and under indictment for two separate murders, testified that at about 5 a.m. on September 30, 1975, the defendant placed a gun under the hood of a car and then gave Graham a ride in that car to the Lewis Hotel at 1155 North Milwaukee in Chicago. Graham then left defendant and entered the hotel. Chicago police officer Robert Drobniewski testified that when he approached the defendant, defendant was seated behind the wheel of the car, with the key in the ignition and the engine running. When the officer searched the car he discovered the gun in question under the hood, next to the battery.\nDefendant testified that it was Graham who gave the defendant a ride. Graham stopped the car outside of the hotel, telling defendant that he wouldn\u2019t be gone long, then placed a gun under the hood of the car before entering the hotel. Defendant testified that, while he may have been sitting behind the wheel when approached by the officer, the engine was not running and the key was not in the ignition. The officer then searched the car and found the gun under the hood.\nBecause of evidence that Graham changed his testimony at trial from that given to defense counsel before trial, the trial judge termed Graham\u2019s testimony \u201csuspect.\u201d In finding that defendant was in constructive possession of the gun the court apparently disregarded Graham\u2019s testimony. The court based its ruling on its finding that defendant knew that the gun was under the hood and defendant was behind the wheel of the car with the engine running when the officer approached him.\nI.\nDefendant contends that the defense of inaccessibility provided in section 24 \u2014 2(b) of the Criminal Code was raised and proved at trial. That section provides in relevant part:\n\u201c(b) Subsections 24 \u2014 1(a)(4) and 24 \u2014 1(a)(10) do not apply to or affect any of the following:\n# * #\n(4) Transportation of weapons \u201d \u201d \u00b0 not immediately accessible.\u201d Ill. Rev. Stat. 1973, ch. 38, par. 24 \u2014 2(b)(4).\nIt is clear that the gun was not immediately accessible to the defendant. In People v. Adams (1962), 73 Ill. App. 2d 1, 220 N.E.2d 17, defendant\u2019s conviction for carrying a weapon on or about his person was reversed because the gun, found under the driver\u2019s seat, was inaccessible to the defendant who was stout and would have had to open the door of his compact car in order to reach the gun. More recently, in People v. Bastien (1974), 19 Ill. App. 3d 773, 312 N.E.2d 795 (abstract), defendant was convicted under section 24 \u2014 1(a)(4) after a gun was found in his car trunk when he was stopped for a minor traffic violation. The appellate court reversed the conviction because the gun was not immediately accessible since defendant would have had to stop his vehicle, walk to the rear of the car, unlock the trunk, and open it in order to get the gun. Similarly, in the case at bar, in order to get the gun the defendant would have had to get out of the car, walk to the front of the car, and open the hood. Under these facts it is clear that the gun was not immediately accessible. Indeed, in its brief the State does not deny this conclusion, although it does not specifically concede it.\nThe State relies on subsection 24 \u2014 2(g) of the Criminal Code, which provides:\n\u201c(g) An information or indictment upon a violation of any Subsection of this Article need not negative any exemptions contained in this Article. The defendant shall have the burden of proving such an exemption.\u201d Ill. Rev. Stat. 1973, ch. 38, par. 24\u2014 2(g).\nThe State contends that the defendant did not raise the issue of this exemption at trial and therefore it was not required to prove that the . defendant did not fall within the exemption.\nBut this statutory exemption is an affirmative defense. (People v. Williams (1975), 28 Ill. App. 3d 67, 328 N.E.2d 192.) Section 3 \u2014 2 of the Criminal Code defines an affirmative defense:\n\u201c(a) \u2018Affirmative defense\u2019 means that unless the State\u2019s evidence raises the issue involving the alleged defense, the defendant, to raise the issue, must present some evidence thereon.\n(b) If the issue involved in an affirmative defense is raised then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.\u201d (Emphasis added.) Ill. Rev. Stat. 1973, ch. 38, par. 3 \u2014 2.\nIn the case at bar the uncontradicted testimony of the State established that the gun at issue was found under the hood of the car, whereas the defendant was seated in the front seat of the car when the search was initiated. These facts were also brought out by the defendant\u2019s testimony and in defendant\u2019s cross-examination of the officer involved. The trial judge based his judgment in part on these two facts. We have already found that these facts establish as a matter of law that the gun was not immediately accessible. Therefore, the State\u2019s evidence and defendant\u2019s evidence raised the issue of inaccessibility. Not only did the State not prove defendant guilty beyond a reasonable doubt as to this issue, the State\u2019s evidence actually proved this defense for the defendant.\nIn People v. Bastien defendant\u2019s conviction for unlawful use of a weapon was reversed because the State\u2019s evidence established that the weapon was inaccessible. The State seeks to distinguish that case because the court there did not specify whether the defendant argued the issue of inaccessibility at trial. But the statute only requires that the issue of the affirmative defense be raised by the evidence. Once some evidence raises the issue, the State\u2019s burden of proof beyond a reasonable doubt includes that issue. Thus in Bastien the court specifically based their reversal on defendant\u2019s reasonable doubt argument, which they found convincing because of the affirmative defense established by the State\u2019s evidence. In the case at bar, both the State\u2019s evidence and the evidence elicited by the defendant raised and proved the issue of inaccessibility. The defendant\u2019s motion for a directed verdict and for a new trial were based, in part, on the contention that the State failed to prove defendant\u2019s guilt beyond a reasonable doubt. Since the evidence raised the defense of inaccessibility, and in fact proved that defense, the State did fail to meet its burden of proof.\nII.\nBecause of our finding on the issue of inaccessibility, we need not decide whether the court erred in finding that the defendant was in constructive possession of the gun. We do note, however, that a finding of inaccessibility does not prevent a finding of constructive possession, as defendant suggests. Rather, it necessarily prevents a finding of guilt based on that possession.\nFor the foregoing reasons the judgment of the trial court is reversed.\nReversed.\nJOHNSON and LINN, JJ., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE ROMITI"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and David A. Novoselsky, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRED COOK, Defendant-Appellant.\nFirst District (4th Division)\nNo. 62479\nOpinion filed March 3, 1977.\nJames J. Doherty, Public Defender, of Chicago (Suzanne M. Xinos, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and David A. Novoselsky, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0511-01",
  "first_page_order": 541,
  "last_page_order": 545
}