People v. Mosley

228 N.E.3d 231

2023 IL App (1st) 200309

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Stephan MOSLEY, Defendant-Appellant.

No. 1-20-0309

Appellate Court of Illinois, First District, Fourth Division.

Filed March 23, 2023

Appeal from the Circuit Court of Cook County. No. 18 CR 16402, Honorable Michael B. McHale, Judge, presiding.

James E. Chadd, Douglas R. Hoff, and David Holland, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham and David H. Iskowich, Assistant State’s Attorneys, of counsel (Chijioke Uwandu, law school graduate)), for the People.

OPINION

PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Stephan Mosley was convicted of unlawful use or possession of a weapon by a felon (UUWF) and sentenced to 10 years’ imprisonment. On appeal, he argues that the State failed to prove beyond a reasonable doubt that he possessed a firearm. He also argues that the court committed plain error by sentencing him for a Class 2 felony rather than a Class 3 felony, as his prior attempted robbery conviction was not a "forcible felony." We affirm the guilty finding but vacate defendant’s sentence and remand for resentencing.¹

¶ 2 Defendant was charged with multiple offenses premised on his possession of a firearm. The State nol-prossed all but one count of UUWF (720 ILCS 5/24-l.l(a) (West 2018)), which charged that defendant committed a Class 2 felony pursuant to section 24-1.1(e) of the Criminal Code of 2012 (Code) (id. § 24-1.1(e)), based on his previous conviction for attempted robbery.

¶ 3 At trial, Chicago police officer Arturo Guzman testified that, on October 26, 2018, he worked with a partner, Officer Michael Carrasco. They were plain-clothed and drove an unmarked vehicle. They were not issued body-worn cameras, as they were employed in a gang enforcement unit and required to wear different uniforms. Around 10:40 p.m., they curbed a small SUV for making an illegal U-turn. The vehicle contained a male driver, female front passenger, and two small children in car seats behind the driver’s seat. Defendant sat in the rear passenger seat, with a woman on his lap.

¶ 4 Guzman approached the driver, who indicated he did not have a license. Guzman requested he exit the vehicle, then escorted him to the rear of the vehicle. Carrasco spoke with the rear passengers and then approached the rear passenger’s side door. Guzman joined him. At Carrasco’s request, the woman on defendant’s lap exited the vehicle. Carrasco escorted her to the rear of the vehicle. From about two feet away, Guzman observed defendant reach in his waistband with his right hand, remove a black object, and place it on the floor near his right foot. He then exited the vehicle, and Guzman escorted him away.

¶ 5 Guzman attempted to pat defendant down, and defendant resisted. Other officers arrived on the scene, and Guzman requested one of them, Officer Pineda, to check the rear passenger floorboard.² Pineda relayed that he discovered a firearm. Guzman attempted to handcuff defendant, who resisted, and officers ultimately took him to the ground and handcuffed him. Pineda showed Guzman the firearm, which was unloaded. Guzman identified the weapon at trial and testified that, when it was recovered, it had rubber bands around the handle but no red tape.

¶ 6 On cross-examination, Guzman testified that the front passenger remained in the vehicle unrestrained when he escorted defendant away. Pineda and other officers were on the scene for a few minutes before Guzman requested Pineda search the floorboard. On redirect examination, Guzman testified that Pineda and the other officers arrived a few minutes after Guzman and Carrasco curbed the SUV.

¶ 7 Carrasco testified that, as Guzman escorted the driver to the rear of the vehicle, Carrasco spoke to the vehicle’s other occupants through the open driver’s window. He asked for their identifications. Defendant responded that he was 17 years old, did not give his name, and did not provide an identification. Carrasco approached the rear passenger side and opened the door. He ordered defendant and the woman on his lap to exit the vehicle. On his second request, the woman exited, and Carrasco escorted her to the rear of the vehicle. Defendant then exited the vehicle, and Guzman, who had been standing behind Carrasco, escorted him to the front of the police vehicle, parked about 10 feet behind the SUV. As Carrasco and Guzman were moving defendant, Guzman informed Carrasco that defendant dropped a black object in the vehicle. The officers attempted to detain defendant in order to investigate the object he dropped in the vehicle, but he was erratic, resisted their attempts to handcuff him, and did not comply with their orders. Pineda and other officers arrived on the scene. Guzman directed Pineda to search the rear passenger side of the vehicle, as he had seen defendant take an object from his waistband and drop it in the vehicle when he exited. Pineda recovered a small black handgun with rubber bands on the handle from the floorboard on the rear passenger side, which Carrasco identified at trial.

¶ 8 On cross-examination, Carrasco testified that defendant did not own the vehicle. Carrasco did not observe a firearm or anything in defendant’s waistband as he spoke to defendant through the driver’s window, as there was a woman on his lap. Nor did he observe anything in defendant’s waistband when he opened the rear passenger door and escorted the woman from the vehicle, as she blocked his view. Carrasco was a few feet from defendant when the woman rose from defendant’s lap and was focused on the woman. He denied there was red tape on the firearm when it was recovered.

¶ 9 Pineda testified that defendant was out of the vehicle when he arrived. Pineda approached the passenger side and observed two toddlers in the back seat and a woman in the front seat. He wore a body camera, and footage from the camera was published at trial.

¶ 10 The video footage is included in the record on appeal and has been reviewed by this court. It begins with officers detaining someone near the front of a police vehicle parked behind an SUV. Two other individuals stand near the rear of the SUV. A person whom Pineda identified at trial as defendant can be heard yelling while Pineda stands near the passenger side of the SUV. About three minutes into the video, someone asks Pineda to search the rear passenger side of the vehicle; Pineda testified it was Guzman. Pineda opens the rear passenger door, and two children in car seats are visible. A few seconds later, he says there is a gun. He repeats "gun" several times, dons gloves, and recovers a red and black object from the floorboard. Pineda closes the door and turns, and officers pin defendant on the ground. Defendant repeatedly yells that he does not have a gun. Pineda manipulates the object, which can be seen to be a firearm with red tape and rubber bands on the handle.

¶ 11 On cross-examination, Pineda testified that he activated his camera fewer than three minutes after arriving. The firearm had red tape on the grip when he recovered it.

¶ 12 The State entered the parties’ stipulation that defendant had a prior felony conviction qualifying him for UUWF. Defendant rested without presenting evidence.

¶ 13 Following closing arguments, the jury was excused to deliberate. When they returned with a verdict, defense counsel explained that he had been unable to locate or contact defendant since shortly after the jury began deliberating. The jury found defendant guilty.

¶ 14 Defendant did not appear on the next date, a status hearing. Nor did he appear on the following date, when the court denied counsel’s motion for a new trial. The case then proceeded directly to sentencing. In aggravation, the State asserted defendant committed a Class 2 felony with a sentencing range of 3 to 14 years’ imprisonment, as he had a 2013 felony conviction for attempted robbery. He also had a 2015 misdemeanor conviction for battery and three prior failures to appear. His whereabouts were unknown. Defense counsel requested the minimum sentence and agreed with the court that the minimum sentence was three years.

¶ 15 The court sentenced defendant in absentia to 10 years’ imprisonment. In announcing the sentence, the court noted that "not all gun cases are equal," and there were "mitigating factors" in this case, as the firearm was unloaded and "wasn’t functional." However, the court also noted that those factors did not "completely mitigate" the fact that defendant possessed a firearm "on the streets," which could still result in serious harm. The court further stated that defendant had a "violent" background given his misdemeanor battery and felony attempted robbery convictions, and it was concerned for the safety of the community. The court denied counsel’s motion to reconsider sentence.

¶ 16 On appeal, defendant first argues that the State failed to prove that he possessed a firearm beyond a reasonable doubt. He notes that Carrasco did not observe him place anything on the floorboard and he did not own the vehicle, which also held three other adults. He further notes that the State presented no fingerprint evidence linking him to the firearm and that Carrasco and Guzman were not wearing body cameras to record the most relevant portion of the encounter, when Guzman saw defendant place an object on the floor.

[1–3] ¶ 17 When a defendant challenges the sufficiency of the evidence at trial, we must determine whether, 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. People v. Newton, 2018 IL 122958, ¶ 24, 427 Ill. Dec. 881, 120 N.E.3d 948. That standard applies to direct and circumstantial evidence. People v. Jones, 2019 IL App (1st) 170478, ¶ 25, 438 Ill.Dec. 441, ...