Weapons, Guns, Firearms Charged with no physical evidence.

[Zn87]

Jurisdiction

Illinois

2/11/21
My wife and I including our puppy went to play a game of darts at our local tavern. After 2 games of darts and 2 drinks we left to head home. We where saying some snye things to each other in route to our vehicle , nothing abnormal for us all in joking manners. Two guys exiting there vehicle saw and overheard us when one of them made a comment saying something in the nature of control ur girl. I approached him , he then puts me in a headlock and we go to the ground. He must have confused a part of my coat or cell phone for a firearm. He then jumped up screamed gun and took off running. The only thing I can think of to justify why he thought this is.. This is a small town and I have a previous firearm charge he is aware of..

We were pulled over shortly after this incident, I was driving. My wife was carrying at the time of this, upon a search they found a firearm in her possession.

Currently we are both on bond and I'm being charged with possession of a firearm by a felon including possession of a firearm without a valid foid. Both eligible for extended term.

In a nutshell there is a eye witness testimony saying they saw a firearm in my wasteland. No physical evidence.

 

[Zigner]

2/11/21
My wife and I including our puppy went to play a game of darts at our local tavern. After 2 games of darts and 2 drinks we left to head home. We where saying some snye things to each other in route to our vehicle , nothing abnormal for us all in joking manners. Two guys exiting there vehicle saw and overheard us when one of them made a comment saying something in the nature of control ur girl. I approached him , he then puts me in a headlock and we go to the ground. He must have confused a part of my coat or cell phone for a firearm. He then jumped up screamed gun and took off running. The only thing I can think of to justify why he thought this is.. This is a small town and I have a previous firearm charge he is aware of..

We were pulled over shortly after this incident, I was driving. My wife was carrying at the time of this, upon a search they found a firearm in her possession.

Currently we are both on bond and I'm being charged with possession of a firearm by a felon including possession of a firearm without a valid foid. Both eligible for extended term.

In a nutshell there is a eye witness testimony saying they saw a firearm in my wasteland. No physical evidence.

You really need to stop talking about your crimes (alleged or actual) on the internet. Speak ONLY to your attorney about this matter.

 

[zddoodah]

We where saying some snye things to each other

I'll assume you meant "snide" (unless "SNYE" is an acronym for "southern New York expletives" or something like that).

saying something in the nature of control ur girl.

Ur?

Currently we are both on bond and I'm being charged with possession of a firearm by a felon including possession of a firearm without a valid foid.

What is she being charged with? What does "foid" mean?

No physical evidence.

Nor, apparently, is there a question, so I'm not really sure what sort of response you're seeking.

Obviously, if you've been charged with a crime -- and particularly if you're under some sort of firearm restriction as a result of your previous crimes -- you need to hire the best attorney you can afford. Also, it's pretty stupid for your wife to be carrying if you're under a restriction.

 

[flyingron]

FOID is Illinois's gun permit: "Firearm Owner Identification Card." Can't possess either firearms or ammo without it. That's a class A misd. The poster is charged with a felony. Neither charge is anything to sneeze at.

Contrary to his mistaken impression, there's no requirement of "physical evidence" to convict. Further, for the two gun charges, the state have more than enough to convict because the police witnessed the crime.

I suspect the police had more than enough justification for a stop, but the attorney can look into that.

 

[adjusterjack]

I approached him

You couldn't just ignore him and keep walking to your car and drive off? smh.

I'm being charged with possession of a firearm by a felon

(720 ILCS 5/24-1.1) (a) It is unlawful for a person to knowingly possess on or about his person ...any firearm ... if the person has been convicted of a felony under the laws of this State or any other jurisdiction.

Your wife carrying the firearm in proximity to you where you have access to it is covered by the "about his person" part.

 

[Tax Counsel]

You couldn't just ignore him and keep walking to your car and drive off? smh.

That's the sort of thing that happens when one has been drinking.

Your wife carrying the firearm in proximity to you where you have access to it is covered by the "about his person" part.

I disagree. Another person in possession of a gun standing next to you does not make you in possession of that gun. It would be a rather absurd reading of the law to attribute the phrase "about his person" to the person of another. In Illinois, the only way that the wife's possession of the gun could be attributed to him for purposes of applying the felon in possession statute is if both were involved in some other crime and the wife was also a felon. That would make him guilty under what the Illinois courts call the accountability theory. Thus, an Illinois appellate court reversed the conviction of a defendant charged with that statute where the facts were that (1) the defendant was a convicted felon at the time the other crime was committed but was not found in possession of a firearm and (2) his two accomplices in that other crime did have possession of firearms but neither of them were convicted felons at the time. The court explains:

In this case, the relevant facts are uncontested. Defendant was convicted of unlawful possession of a weapon by a felon under an accountability theory. At trial, the evidence established that Wilson and Moore possessed weapons during the course of the offenses but that defendant did not. It is also uncontroverted that defendant has a prior felony conviction. However, the State did not present any evidence that Wilson and Moore were convicted felons. Because the relevant facts are uncontested, and the issue raised by defendant is whether these facts are sufficient to establish the elements of unlawful possession of a weapon by a felon under an accountability theory, we review de novo defendant's claim of insufficient evidence. Chirchirillo, 393 Ill.App.3d at 921, 332 Ill.Dec. 703, 913 N.E.2d 635.

Under Illinois law, a person is legally accountable for another's criminal conduct when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5–2(c) (West 2006); see People v. Dennis, 181 Ill.2d 87, 96, 229 Ill.Dec. 552, 692 N.E.2d 325 (1998). In Illinois, in order to prove unlawful possession of a weapon by a felon, the State must prove beyond a reasonable doubt that the defendant (1) knowingly possessed a firearm and (2) has been convicted of a felony. 720 ILCS 5/24–1.1(a) (West 2006).

As the latter statute provides, it is the person possessing the weapon who must be a convicted felon. 720 ILCS 5/24–1.1(a) (West 2006); Chirchirillo, 393 Ill.App.3d at 925, 332 Ill.Dec. 703, 913 N.E.2d 635. "A charge based on accountability must necessarily flow from the principal crime at issue." People v. Hicks, 181 Ill.2d 541, 547, 230 Ill.Dec. 244, 693 N.E.2d 373 (1998). Thus, recently, this court held that to support a conviction of unlawful possession of a weapon by a felon under an accountability theory, the evidence must establish that the principal who possessed the weapon was a convicted felon. Chirchirillo, 393 Ill.App.3d at 925–26, 332 Ill.Dec. 703, 913 N.E.2d 635.

In this case, no evidence was presented to establish that either Wilson or Moore (as principals) was a convicted felon. Therefore, the State failed to establish beyond a reasonable doubt the essential elements of unlawful possession of a weapon by a felon under an accountability theory. Accordingly, defendant's conviction of this offense is reversed and his sentence vacated.​

People v. Gibson, 403 Ill. App. 3d 942, 949–50, 934 N.E.2d 611, 617–18 (2010), abrogated by People v. Bailey, 2014 IL 115459, 4 N.E.3d 474. The case was abrogated on grounds other than the court's ruling on the felon in possession charge.

Thus, the wife's possession of the gun at the time of the stop cannot be attributed to the OP unless the state can prove the accountability theory. As the wife is apparently not also charged as a felon in possession of a firearm, I assume she is not a convicted felon and therefore the accountability theory would fail.

That's not the end of it, though. The problem for the OP is that there is a witness saying that the OP had a gun and yet when the OP and his wife were stopped, there was a gun found, only in the possession of his wife. It's not hard to figure out the state's theory from there: the state will argue that if the witness is correct and the OP had a gun when the fight broke out but didn't have it at the time of the stop then he must have given the gun he had to his wife prior to the stop knowing that when stopped if he had the gun he'd be in trouble for being a felon in possession.

The OP very definitely needs a criminal defense lawyer for this.

 

[Tax Counsel]

2/11/21In a nutshell there is a eye witness testimony saying they saw a firearm in my wasteland. No physical evidence.

And in a nutshell, if the jury believes the witness' testimony that he saw a gun in your waistband you can be convicted. Testimony of a witness is evidence and no rule requires that the state have physical, scientific, audio/visual recordings, or any of the other stuff you see prosecutors routinely pull out on TV court dramas.

 

[army judge]

 

[justblue]

Freaking HIGH-sterical!!

 

[flyingron]

Depends what the poster meant by "in her possession." If it meant she had it tucked in her pants, then I'd agree with TM. If it was some place like a bag or glove box or whatever that both could have constructive possession of, then he could indeed be guilty.

Facts matter and drunks often can't remember the facts. An attorney will take a dispassionate and learned examination of the evidence against you. Your case is not going to be tried on a web forum.

 

[mightymoose]

I would expect the firearm was confiscated and would be treated for fingerprints. If your fingerprints are in it you are dead in the water.
Author some physical evidence you were in possession of a furearm I would think you have a reasonable chance of escaping this with good counsel.
Eyewitness testimony is often unreliable. How did the witnesses know what the item he saw was. Was he influenced by the other person yelling "gun"? Can he describe it? Does the description match the gun that was recovered?
It is also worthwhile to determine whether you are charged for possession during the fight, or for possession at the time of the stop.
How did the police find the firearm? Did your wife consent to being searched?
There are a lot of ways this could work out for you.

No need to answer any of that. Just things to think about and discuss with counsel.

 

[Red Kayak]

How was the puppy in all this? (And who takes their puppy to a bar?)

The police had "probable cause" to stop and search you, based on the allegations against you. Or maybe based on your driving. And I have no doubt that you added to this with your "snye" observations to them. (Whatever "snye" means, it's not "southern NY expletives".)

You should feel lucky that they didn't subject you to a field sobriety test. Those are pretty easy to fail, even when sober.

 

[mightymoose]

The police had "probable cause" to stop and search you

Stop, yes. Search, no. Not based on the information information given.
Nothing more than a cursory pat down of the male would have been reasonable. A search of the female would have required consent, which she may well have given, but could have refused.

 

[Tax Counsel]

Nothing more than a cursory pat down of the male would have been reasonable. A search of the female would have required consent, which she may well have given, but could have refused.

However, even if the search of the wife was improper, that would not help the OP in his case. Had the wife been charged, she could have sough suppression of the gun evidence in her case since it was her 4th Amendment rights that had been violated by the improper search. The OP's rights were not violated and he could not get the gun evidence suppressed in his case based on an illegal search of his wife.

There may be, of course, other problems with the state's case, though, that would form the basis for a good defense for the OP.

 

[zddoodah]

Had the wife been charged, she could have sough suppression of the gun evidence. . . .

The OP did say, "Currently we are both on bond and I'm being charged with possession of a firearm. . . ." To me, that implies that both of them have been charged with something, and I asked the OP what she was charged with. However, the OP apparently is heeding the suggestion in the first response in the thread "to stop talking about [his] crimes (alleged or actual) on the internet," so we may never know.

 

[zddoodah]

Had the wife been charged, she could have sough suppression of the gun evidence. . . .

The OP did say, "Currently we are both on bond and I'm being charged with possession of a firearm. . . ." To me, that implies that both of them have been charged with something, and I asked the OP what she was charged with. However, the OP apparently is heeding the suggestion in the first response in the thread "to stop talking about [his] crimes (alleged or actual) on the internet," so we may never know.

 

[flyingron]

He further stated she was charged with possession with no FOID, and he was charged with possession by a felon.

 

[Tax Counsel]

The OP did say, "Currently we are both on bond and I'm being charged with possession of a firearm. . . ." To me, that implies that both of them have been charged with something, and I asked the OP what she was charged with. However, the OP apparently is heeding the suggestion in the first response in the thread "to stop talking about [his] crimes (alleged or actual) on the internet," so we may never know.

That's a good catch, but if in fact she was charged with some crime it would matter a great deal what that crime was in determining whether the state could use the accountability concept I discussed earlier in prosecuting the OP.

 

[mightymoose]

If she is being charged with a possession offense it seems that should eliminate his possession offense.

 

[Zigner]

If she is being charged with a possession offense it seems that should eliminate his possession offense.

The charges are not mutually exclusive. There are witnesses who observed HIM in possession of the weapon prior to HER being in possession of the weapon.