People v. Thrasher ( 2008 )

Filed 6/27/08 NO. 4-07-0563
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
RONALD W. THRASHER, ) No. 06CF266
Defendant-Appellant. )
) Honorable
) Kevin P. Fitzgerald,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
On July 21, 2006, a jury found defendant, Ronald W.
Thrasher, guilty of unlawful possession of a firearm by a con-
victed felon (720 ILCS 5/24-1.1(a) (West 2006)). In September
2006, the trial court sentenced defendant to 11 years' imprison-
ment. Defendant appeals, arguing that the trial court (1)
committed reversible error when it instructed the jury that the
State did not need to prove that the charged offense occurred on
the date specified in the information; and (2) abused its discre-
tion in fashioning an 11-year sentence. We affirm.
I. BACKGROUND
On March 10, 2006, the State charged defendant with
unlawful possession of a firearm by a convicted felon. The
information stated in pertinent part:
"[O]n or about [the] []9th day of March[]
2006[,] at Bloomington, *** [defendant] com-
mitted the offense of unlawful possession of
a firearm by a convicted felon in that he, or
one for whose conduct he was legally respon-
sible, knowingly and while on mandatory su-
pervised release, possessed a handgun on or
about his person after having previously
[been convicted of a felony]."
The information did not name the specific location where the
alleged offense occurred other than simply, "at Bloomington."
However, this case came to the State's attention following a
dispute in the parking lot outside Winner's Lounge in Bloomingto-
n, Illinois, during the late-night hours of March 8, and the
early-morning hours of March 9, 2006 (hereinafter the Lounge
incident). On this night, defendant was at the Lounge with
several friends: Jennifer Bains Talamantez (defendant's girl-
friend at the time), Erron Gilmer, and two other women who were
friends of Talamantez.
The State later filed an indictment charging defendant
in the same terms as the information, which was later amended by
interlineation.
In opening argument, the State laid out its theory of
the case. The State would attempt to prove that, on the night of
the Lounge incident, Gilmer got into a dispute at the Lounge.
Bouncers at the Lounge asked defendant's group to leave. Defen-
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dant and Gilmer then went back to defendant's apartment to
retrieve defendant's gun, while the women waited in the car. The
group then drove back to a gas station near the Lounge. Defen-
dant kept his gun on his person until defendant and Gilmer exited
the car at the gas station near the Lounge. Defendant then gave
the gun to Gilmer, who performed the shooting.
The State believed Talamantez would testify that when
defendant and Gilmer returned from defendant's apartment,
Talamantez saw defendant's gun tucked in defendant's waistband,
the same gun she had seen in defendant's apartment on previous
occasions. The State believed that defendant's neighbor, Heather
Jenkins, would testify that she too had seen defendant keep a gun
in his apartment, a gun which matched the physical description of
the gun used in the Lounge incident.
At trial, Talamantez testified to the circumstances
under which the Lounge incident arose. Apparently, two women who
were part of another group at the Lounge approached Gilmer and
accused him of sexually assaulting one of their friends. In
response, Gilmer turned to Talamantez and said, "[I]f something
happen[s,] do you have my back?" Talamantez told Gilmer that she
would support him. A man then approached Gilmer and challenged
him regarding the alleged sexual assault. Gilmer punched the
man, and a fight ensued. Defendant tried to break up the fight.
Defendant's group then left the bar, but other customers followed
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the group and began to throw bottles at Talamantez's car.
Defendant's group got in the car and drove away.
According to Talamantez, defendant then turned to
Gilmer and asked him what he wanted to do. Gilmer responded in
an upset and angry manner, "You know what I want to do." The
group went to defendant's apartment. Defendant and Gilmer went
inside defendant's apartment while Talamantez and the other two
women waited outside. When defendant and Gilmer returned to the
car, they told Talamantez to drive back to the Lounge. Contrary
to what the State indicated Talamantez's testimony would be,
Talamantez testified that she did not see either man with a gun.
Talamantez dropped defendant and Gilmer off at Huck's gas station
near the Lounge. Defendant gave Talamantez his cell phone so
that they could maintain contact and directed her to drive the
other two women home and then come back to Huck's. When
Talamantez returned to Huck's, she saw police cars in the Lounge
parking lot. She quickly learned that a man shot a gun during a
dispute. Gilmer was the likely shooter.
During cross-examination, Talamantez admitted that she
had previously told police that she saw that defendant had a gun
in his waistband when she dropped him off at Huck's. Also during
cross-examination, Talamantez admitted discussing the shooting at
the scene with witnesses from the Lounge, whom she told that she
had cleaned defendant's gun in the past. However, Talamantez
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claimed that both her two videotaped and audiotaped statements to
police and her statements to witnesses at the scene regarding her
knowledge that defendant owned the gun that had been used in the
shooting had been lies. She claimed the police pressured her
into making her statements on the videotape. She had no explana-
tion for her statements about the gun to witnesses at the scene.
The two audiotaped statements were admitted into evidenced and
shown to the jury.
The State later called defendant's neighbor, Heather
Jenkins, to corroborate Talamantez's initial version of events.
Jenkins testified that she had been in defendant's apartment on
several occasions during February and March 2006. On one of
those occasions, Jenkins saw defendant with a gun while defendant
was sitting on his couch. Defendant was not touching the gun;
the gun was merely next to defendant on the couch. Jenkins was
able to describe the gun, noting that it was black with a brown
handle. However, Jenkins did not provide, nor did the State ask
her to provide, the exact date that she saw defendant with the
gun.
Defendant testified on his own behalf, disputing the
State's theory that he retrieved the gun from his apartment
before giving it to Gilmer and returning to the Lounge. Accord-
ing to defendant, Gilmer went into the apartment to gather some
personal belongings because Gilmer had decided against spending
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the night as originally planned. Defendant took some cocaine,
which he planned to sell at Huck's in a drug deal he had just
recently arranged. Talamantez dropped off defendant and Gilmore
at Huck's for the drug deal. Once at Huck's, Gilmer seemed as
though he still wanted revenge against the man at the Lounge and
began walking toward the Lounge. Defendant followed after him.
Defendant saw Gilmer pull a gun out of his waistband. At that
point, defendant threw his hands up in the air and said, "What
are you going to do, shoot somebody?" Defendant did not want to
be involved in a shooting, so he turned around and began walking
back to Huck's. As he was walking back to Huck's, he heard two
gunshots. Defendant then called Talamantez on her cell phone and
asked her to come and pick him up.
Defendant testified that he did not know Gilmer had a
gun until Gilmer pulled it out of his waistband on the way back
to the Lounge. During the investigation, defendant told police
he did not own a gun. Defendant testified that the gun Talamant-
ez told the police she had seen did not belong to him. Likewise,
defendant testified that the gun Jenkins had seen earlier in his
apartment did not belong to him.
In closing, the State argued:
"[In] the early morning hours of March
9, 2006[,] a firearm was used in a shooting
at Winner's Lounge here in Bloomington, McLe-
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an County. At the time that that weapon was
used there was an individual that fired that
weapon by the name of Erron Gilmer.
But how did that weapon get into Mr.
Gilmer's hands? I submit to you, ladies and
gentleman, when you look at the other evi-
dence that was presented in this case, and
that is the evidence of Jennifer Bains
[Talamantez] and also Heather Jenkins, we
know, we can now see how that weapon got into
the possession of Mr. Gilmer and it was given
to him by this individual, by the defendant,
Ron Thrasher.
Heather Jenkins had no connection with
this case around the incident that happened
on March 9th. She was called in here, ladies
and gentleman, because quite frankly she
corroborated some of the statements that were
given [to police investigators] by Jennifer
Bains [Talamantez]. Heather was a neighbor
of the defendant and had been over to his
residence in the past and seen, while at his
residence, *** a black handgun with a brown
handle. She saw it in his possession. She
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saw it on the couch stuck down in the cush-
ion. That evidence was brought to you ***
[as] corroboration of [the police] statement
by Jennifer Bains [Talamantez]."
During jury deliberations, the jury sent the trial
judge a note:
"The jury would like to clarify a point--is
it necessary for us to determine proof of
possession on the actual date March 8, 9--or
can we consider whether there is proof of
possession/ownership at any point in time?"
The State proposed that the trial court give Illinois
Pattern Jury Instruction, Criminal, No. 3.01 (4th ed. 2000)
(Hereinafter IPI Criminal 4th) to the jury, which states:
"3.01 Date of Offense Charged.
The [(indictment) (information) (com-
plaint)] states that the offense charged was
committed [(on or about)] [date]. If you
find the offense charged was committed, the
State is not required to prove that it was
committed on the particular date charged."
Over the objection of defense counsel, the trial court provided
the jury with the following instruction, in the form of IPI
Criminal 4th No. 3.01:
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"The indictment states that the offense
charged was committed on or about March 9,
2006. If you find the offense charged was
committed, the State is not required to prove
that it was committed on the particular date
charged."
The jury found defendant guilty of possession of a
firearm by a convicted felon, and the court sentenced defendant,
a Class X felon, as stated. This appeal followed.
II. ANALYSIS
A. The Trial Court Properly Gave
IPI Criminal 4th No. 3.01
Generally, the State is "not required to prove that a
crime was committed on a particular date, unless the allegation
of a particular time is an essential ingredient of the offense or
a statute[-]of[-]limitations question is involved." People v.
Suter, 292 Ill. App. 3d 358, 363, 685 N.E.2d 1023, 1027 (1997).
"Where the proof at trial [establishes or] suggests the offense
occurred on a date other than the one charged, IPI Criminal 3d
No. 3.01 serves to inform the jury that the difference in dates
is not material." Suter, 292 Ill. App. 3d at 363, 685 N.E.2d at
1027. Giving IPI Criminal 4th No. 3.01 prevents a defendant from
arguing that he should be acquitted simply because of a nonfatal
variance between the charging information and the proof at trial.
Suter, 292 Ill. App. 3d at 363, 685 N.E.2d at 1027. However,
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giving IPI Criminal 4th No. 3.01 may result in reversible error
where (1) "inconsistencies between the date charged in the
indictment and the evidence presented at trial are so great that
the defendant is misled in presenting his defense"; or (2) the
defendant "presents an alibi for the time alleged in the indict-
ment and is thereby prejudiced because he failed to gather
evidence and witnesses for the time actually proved by the
State." Suter, 292 Ill. App. 3d at 364, 685 N.E.2d at 1028.
Defendant argues that the trial court erred when it
responded to the jury's question by providing IPI Criminal 4th
No. 3.01. Defendant asserts that the inconsistency between the
March 9 date charged in the information and the evidence pre-
sented at trial through Heather Jenkins' testimony that defendant
possessed a gun at some point in February or March 2006 misled
defendant in presenting his defense. Defendant states that he
was charged with "a specific incident of possession of a weapon,
based on the incident that occurred at Winner's Lounge in the
early hours of March 9, 2006." Defendant essentially argues that
while the State did not need to prove that the possession inci-
dent at the Lounge happened on March 9, 2006, it did need to
prove that the possession incident at the Lounge happened,
because that was the possession incident that defendant had
prepared to defend against based on the information as charged.
Defendant contends that he was not prepared to defend against
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evidence that, at "some undisclosed time" in February or March
2006, Jenkins saw him in possession of a gun in his apartment.
We disagree. In the instant case, the State's evidence
did not prejudice defendant or mislead him in preparing his
defense. Both the information and superseding indictment al-
leged:
"[O]n or about [the] []9th day of March[]
2006[,] at Bloomington, *** [defendant] com-
mitted the offense of unlawful possession of
a firearm by a convicted felon in that he, or
one for whose conduct he was legally respon-
sible, knowingly and while on mandatory su-
pervised release, possessed a handgun on or
about his person after having previously
[been convicted of a felony]."
Defendant was charged with possession of a weapon by a felon on
or about March 9, 2006. He was not charged in the information or
later indictment with possession at any specific location.
Evidence was presented that he possessed a gun between January
and March 2006. Defendant's girlfriend, Jennifer Bains
Talamantez, testified she had seen defendant with either a 9-
millimeter or 22-caliber pistol automatic handgun between January
and March 2006 but that he did not possess a gun on March 9,
2006. Talamantez in an audiotaped and videotaped statement
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presented to the jury told police on March 9, 2006, that she saw
defendant with a gun when he got out of her car at the gas
station following the fight at the bar during the late-night and
early-morning hours of March 8 and 9, 2006. Talamantez's
audiotaped and videotaped statement on July 10, 2006, corrobo-
rated her March 9, 2006, statement that defendant had a black
handgun with a brown handle stuck in his waistband when he got
out of the car at Huck's on March 9, 2006. At trial, Talamantez
admitted making that statement but claimed police had pressured
her to do so. Talamantez also admitted defendant asked her to
lie to the police about seeing the gun and not to testify against
him at trial.
Heather Jenkins, defendant's neighbor, also testified
to seeing defendant in possession of a handgun during visits to
clean his apartment in February and March 2006. Jenkins was
unable to provide an exact date for these possessions.
Presented with Talamantez's denial about defendant's
possession of the gun, her explanation for some of those impli-
cating statements but not others and her explanation therefor,
the tapes, and Jenkins's testimony, the jury had to (1) determine
the witnesses' credibility, (2) determine the weight to be given
to their testimony, (3) resolve conflicts in the evidence, and
(4) draw reasonable inferences from the evidence. People v.
Billups, 318 Ill. App. 3d 948, 954, 742 N.E.2d 1261, 1266-67
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(2001).
Because of Talamantez's numerous and contradictory
statements about defendant's possession of the gun, a variance
existed between the date in the indictment and the evidence
presented at trial as to when the offense was committed. There-
fore, the giving of IPI Criminal 4th No. 3.01 was proper.
Moreover, the giving of this instruction did not
mislead defendant in preparing his defense. According to defen-
dant's testimony at trial, his defense was not that he did not
possess the gun on or about March 9, 2006; his defense was he did
not have a gun at all at any time. Throughout defendant's
testimony, he persisted that he did not own a gun. Defendant
testified he did not have a gun on March 8 or 9, 2006. When
asked about the gun Jenkins saw at his apartment in February or
March, he responded that he "didn't see the same gun that she
saw. *** I don't own a gun." When asked about the gun Talamantez
saw at his apartment between January to March, he responded it
was not his gun. Therefore, defendant was not misled into
preparing a defense only for March 8 and 9, 2006, because defen-
dant actually presented a defense to counter the State's evidence
of defendant's possession of a gun at any time in January,
February, or March 2006.
The trial court's giving of IPI Criminal 4th No. 3.01
was proper in light of the variance between the date in the
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indictment and the evidence presented at trial. Contrary to
defendant's assertion on appeal, this instruction did not preju-
dice or mislead him in preparing his defense, as he
defended against all the State's evidence of his possession of a
gun in January, February, and March 2006.
The State's theory of the case was that defendant had
possessed the 9 millimeter in question for some months before the
bar fight and provided it to the codefendant, who used it at the
bar fight. The State pursued its case on a direct-liability
theory as well as an accountability theory in the information,
the later indictment, and the jury instructions: "the defendant,
or one for whose conduct he is legally responsible, knowingly
possessed a firearm." At the jury-instruction conference, the
State argued accountability.
"[ASSISTANT STATE'S ATTORNEY]: It is a
possession, your Honor, with--under account-
ability. Don't have to go to the shooting
aspect of it. Mr. Gilmer possessed a gun at
Winner's, but he possessed it at Winner's
because this defendant gave it to him."
Sufficient evidence of defendant's aiding and abetting codefenda-
nt Gilmer was shown. That Talamantez, defendant's girlfriend,
drove them from the bar to the apartment and back again is
undisputed. That defendant went with Gilmer to the scene of the
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shooting is also undisputed.
But defendant's attorney objected to the accountability
instruction on the ground that no evidence supported accountabil-
ity, and the trial court erroneously sustained that objection, in
essence implying defendant had to have given codefendant Gilmer
the gun that night. "THE COURT: And if so then the defendant had
to have possessed it and it's direct." Defendant simply did not
have to possess the gun that night, because that is not how
defendant was charged. Regardless, the jury had some question on
this issue. The jury had the jury instructions, no doubt dis-
cussing the elements of the crime. The jury addressed
Talamantez's credibility and her explanation for her first
inculpation of defendant and asked the logical questions: does it
matter when defendant possessed the gun? The answer: no, it did
not matter. Clearly, codefendant possessed the gun on March 9,
2006. Direct evidence, Talamantez's tape, established defendant
provided it on that date. Talamantez explained her statement as
"pressured," but circumstantial evidence or testimony established
defendant gave it to codefendant Gilmer that night or shortly
before, merely by his prior possessions in recent days. The
evidence was sufficient here to convict defendant of possession
of a gun on either a direct or accountability possession. Simply
because defense counsel led the court and jury astray is not
reason to reverse. Defense counsel's theory was to confuse this
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issue.
"[Codefendant] Erron acted on his own
inside the first time; acted on his own on
the return. Grown man. He is responsible
for himself.
[Defendant] acted on his own. Grown
man. He is responsible for himself.
The People have not proven to you beyond
a reasonable doubt that [defendant] possessed
any firearm. They are asking you to guess or
to fit in these pieces of this puzzle and the
proposition that I believe, or the theory,
the supposition, the inference he is asking
you to draw from the testimony you heard,
don't believe it is supported by the infer-
ence, excuse me[,] by the evidence or by
reasonable inference from the evidence."
Finally, the burden-of-proof jury instruction contains
no date of the possession or location of the possession. Clearl-
y, the State did not have the burden of proving the exact date of
the offense, and the trial court correctly gave IPI Criminal 4th
No. 3.01.
B. The Trial Court's Sentence of 11 Years' Imprisonment
Was Not an Abuse of Discretion
Defendant argues his remorse, rehabilitative potential,
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and the lack of violence in his background support a finding the
trial court abused its discretion by sentencing defendant to 11
years' imprisonment.
A trial court is given great deference when making
sentencing decisions, and if a sentence falls within the statu-
tory limits, it will not be disturbed on review unless the trial
court abused its discretion and the sentence was manifestly
disproportionate to the nature of the case. People v. Grace, 365
Ill. App. 3d 508, 512, 849 N.E.2d 1090, 1093-94 (2006). "A
defendant's character, prior criminal history, mental capacity,
background, age, and future dangerousness are just a few of the
factors a trier of fact may consider in fixing the appropriate
punishment." People v. Thompson, 222 Ill. 2d 1, 35, 853 N.E.2d
378, 398 (2006).
Defendant was convicted of a Class 2 felony, but due to
his criminal history, he was sentenced as a Class X offender.
The sentencing range for Class X offenders is 6 to 30 years. 730
ILCS 5/5-8-1(a)(3) (West 2006).
According to the presentence investigation report, this
was defendant's ninth felony conviction. Previous convictions
were for burglary, residential burglary, possession of controlled
substance with intent to deliver, possession of a controlled
substance, obstructing justice, driving under the influence, and
retail theft. Further, as the State noted at sentencing, this
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was defendant's second conviction for illegal possession of a
weapon by a felon, and defendant was on mandatory supervised
release (MSR) when he committed the instant offense. Defendant's
presentence investigation report also chronicles defendant's
repeated failure to comply with probation and MSR terms and
conditions.
As defendant stated, he did express his remorse to the
trial court during sentencing. The court found his remarks to be
sincere but noted the test of his sincerity will be when he is
released from prison.
"The system has tried over and over
again to impress upon you that if you commit
crimes and do things that are dangerous or
against the law[,] that there will be harsh
consequences[,] and it hasn't seemed to get
through. And I can sit here today and believe
with all my heart everything that you have
written in this letter to me and still have
significant doubt based on your actions, not
your words, whether any of this is going to
mean anything when you get out [of prison]
again because it takes, it takes having a
firm conviction, a mission in life."
Despite defendant's remorse and possible rehabilita-
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tion, the trial court found defendant's criminal history war-
ranted an 11-year sentence. This sentence was on the low end of
the 6- to 30-year range defendant faced for a Class X sentence,
and it did not result in an abuse of discretion.
III. CONCLUSION
Therefore, we affirm the trial court. As a part of our
judgment, we award the State its $50 statutory assessment against
defendant as costs of this appeal.
Affirmed.
McCULLOUGH, J., concurs.
COOK, J., dissents.
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JUDGE COOK, dissenting:
I respectfully dissent and would reverse and remand.
The State's consistent theory in this case was that
defendant transferred the gun to Gilmer on the night of the
Lounge incident. The State's evidence at trial centered on that
incident. In fact, the State conceded during its closing argu-
ment that "Heather Jenkins had no connection with this case
around the incident that happened on March 9th." The jury, on
its own, came up with the theory that defendant could be con-
victed based on a prior, uneventful possession in the apartment.
The State's suggestion that the trial court answer the jury's
question in this case with IPI Criminal 4th No. 3.01 adopts a
completely different approach taken after the close of evidence.
It appears the jury convicted defendant based on the uneventful
possession in the apartment at some indefinite time before the
shooting, and then the court sentenced defendant based on the
violent circumstances surrounding providing Gilmer with a firearm
to be used in a bar fight.
The State is not required to prove that a crime was
committed on a particular date. In this case, it makes no
difference whether the crime was committed during the late
evening hours of March 8 or the early morning hours of March 9.
However, giving IPI Criminal 4th No. 3.01 may result in revers-
ible error "where [the] inconsistencies between the date charged
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in the indictment and the evidence presented at trial are so
great that the defendant is misled in presenting his defense."
Suter, 292 Ill. App. 3d at 364, 685 N.E.2d at 1028. If defendant
had known he would have to defend against something other than
the Lounge incident, perhaps he could have brought in witnesses
to establish that the firearm in the apartment in January or
February was not his. Other than his on-the-spot denial that the
gun was not his, defendant was unable to prepare a defense
against the accusation of possession of a gun in the weeks and
months prior to the Lounge incident.
"Due process requires that an indictment or information
apprise defendant of the precise offense charged with sufficient
specificity to enable him to prepare his defense and allow the
pleading of the judgment as a bar to future prosecution of the
same conduct." People v. Rhoden, 253 Ill. App. 3d 805, 810, 625
N.E.2d 940, 944 (1993). If defendant had been acquitted of
possession of a weapon at the Lounge on March 8 or 9, could he
have been later charged with possession at some other time and
place? It seems clear that he could have been. Defendant's
rights were violated in this case when the trial court allowed
the jury to ignore the charge which had been filed.
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