People v. Faulkner

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Appellate Court Date: 2017.04.24

09:34:39 -05'00'

People v. Faulkner, 2017 IL App (1st) 132884

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption DORIAN FAULKNER, Defendant-Appellant.

District & No. First District, Sixth Division

Docket No. 1-13-2884

Filed February 10, 2017

Rehearing denied March 28, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-24639; the

Review Hon. Thomas V. Gainer, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg

and John E. Nowak, Assistant State’s Attorneys, of counsel), for the

People.

Panel 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 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 parole1 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 No. 08 CR

0981001 and manufacture/delivery of a controlled substance under case No. 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 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

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.

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testified that nothing obscured his view of the rifle. The police officers confiscated the assault

rifle and the box of ammunition.

¶5 Officer Cary Pozulp2 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 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 Pozulp 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, 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

2

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

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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.

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.

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.

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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 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.

¶ 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

3

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

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.

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(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 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’s

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 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

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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 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 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

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

(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(a) (West 2012).

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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 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

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,

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regardless of whether the conviction or sentence became final before the rule was announced.”

Id. at ___, 136 S. Ct. 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 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 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.

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¶ 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

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).

¶ 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

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‘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 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 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

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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 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 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,

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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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