People v. Alvarez ( 2021 )

2021 IL App (1st) 190955-UNo. 1-19-0955
Order filed October 25, 2021
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 18 CR 9257
)
JONATHAN ALVAREZ, ) Honorable
) Thomas Joseph Hennelly,
Defendant-Appellant. ) Judge, presiding.
JUSTICE WALKER delivered the judgment of the court.
Presiding Justice Hyman and Justice Pucinski concurred in the judgment.
ORDER
¶1 Held: The State proved defendant’s guilt of aggravated unlawful use of a weapon beyond
a reasonable doubt where a rational trier of fact could accept the testimony of the
State’s witness.
¶2 Following a bench trial, defendant Jonathan Alvarez was found guilty of aggravated
unlawful use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West
2018)) and sentenced to one year’s imprisonment. Alvarez argues on appeal that the State failed
to prove beyond a reasonable doubt that he possessed a firearm because the State’s lone witness
No. 1-19-0955
was incredible and impeached, and the State did not present physical or forensic evidence
connecting him to the firearm. We affirm.
¶3 I. BACKGROUND
¶4 Alvarez was charged by indictment with six counts of AUUW. Count I charged Alvarez
with knowingly carrying on his person an uncased, loaded, immediately accessible firearm without
a valid concealed carry license (CCL) or Firearm Owners Identification (FOID) card. 720 ILCS
5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West 2018). The State nol-prossed counts II-VI.
¶5 At trial, Chicago police officer Johnathon Martinez testified that, at approximately 11:58
p.m. on June 5, 2018, he drove a marked vehicle with a partner, Officer Vincent Hernandez. On
the 2600 block of West 23rd Place, in Chicago, Martinez observed two individuals walking on the
sidewalk to his right: Alvarez, whom Martinez identified in court, and a shorter individual. It was
dark, but there were streetlights. Alvarez was near the street.
¶6 Another individual, wearing a yellow shirt, stood on the opposite side of the street. The
individual in yellow whistled twice and yelled “A O,” which Martinez recognized as a warning
about the police. Alvarez looked at Martinez, crouched towards a parked vehicle, threw a silver,
shiny object under the vehicle, then stood and continued walking.
¶7 Martinez and Hernandez detained all three individuals. Martinez then canvassed the area
where Alvarez threw the item and recovered a loaded, silver .357 magnum revolver under a parked
vehicle, near the left rear wheel. Martinez did not observe any other shiny objects. From the time
Alvarez was detained, no one else was present except for a woman walking her dogs, but she
arrived after the incident and Martinez did not see her throw anything.
-2-
No. 1-19-0955
¶8 Martinez and Hernandez wore body cameras, and Martinez stated that he reviewed the
footage before trial, and it was an accurate depiction. The State then sought to “publish” People
Exhibit No. 1, which the state described as “the body camera footage.” Defense counsel stated that
she had no objection to the exhibit and stipulated to its foundation. The exhibit, which is included
in the record on appeal, is a CD containing multiple video files from the body cameras of
Hernandez, Martinez, and other officers. The State played approximately 20 seconds of one video,
“from minute 705 to 726.” According to Martinez, the video was from Hernandez’s body camera
and showed Martinez at the scene. In the published portion, Martinez donned gloves near a black
SUV and tells other officers that he “knew it.” The SUV is parked with its driver’s side near the
curb, and a silver firearm is visible near the driver’s side rear wheel.
¶9 On cross-examination, Martinez testified that the body camera footage accurately depicted
the lighting conditions. Martinez drove the wrong way down 23rd, and vehicles were parked on
both sides of the street. Martinez activated his body camera while in the vehicle, but neither his
nor Hernandez’s body camera footage captured the individual in yellow issuing the warning or
Alvarez throwing anything. Martinez agreed that he approached the individual in the yellow shirt
because he said “mother f***” the officers. Martinez and Hernandez took the individual to the
ground and handcuffed him, which took a short amount of time. During that time, other officers
arrived, and Alvarez and the shorter individual stood near the police vehicle. Martinez then
returned to his vehicle and spoke with Alvarez and the shorter individual.
¶ 10 About six minutes after the officers activated their body cameras, Martinez, Hernandez,
and the other officers searched for the firearm. The officers looked around parked vehicles and in
the surrounding yards. Martinez found the firearm under a black SUV. Martinez did not recall how
-3-
No. 1-19-0955
much time passed before he recovered the firearm or how many vehicles were parked between the
police vehicle and the SUV.
¶ 11 Martinez agreed that a sergeant who responded to the scene asked him whether Alvarez
was the only person near the vehicle, and Martinez clarified in his testimony that “the juvenile”
was also present. Martinez told the sergeant that he saw Alvarez make a throwing gesture, which
he demonstrated for the sergeant, but Martinez did not mention a shiny, silver object to the sergeant
or anyone else. The State entered a stipulation that, on June 5, 2018, Alvarez had not been issued
a valid CCL or FOID card.
¶ 12 The court immediately announced its findings following closing arguments. The court
stated that it judged Martinez’s credibility and did not find it significant that he was slightly
impeached “regarding what he said.” The court believed that Alvarez possessed a firearm and
threw it under a vehicle when he was alerted to the officers’ presence and found Alvarez guilty.
¶ 13 Alvarez filed a motion to reconsider or for a new trial, arguing in relevant part that the State
failed to prove him guilty beyond a reasonable doubt. At a hearing thereon, defense counsel
requested the trial court “view People's Exhibit 1 which was admitted at trial,” namely, footage
from “the body-worn camera of Officer Vincent Hernandez.” Counsel noted that “[t]he State
published some portions of that, but I would ask that the Court review the first nine minutes.” The
trial court agreed to watch it and continued the proceedings.
¶ 14 The portion of Hernandez’s body camera footage identified by defense counsel depicts
Hernandez and Martinez arriving at the scene and detaining Alvarez, the shorter individual, and
the person in yellow. Hernandez and the other officers appear to start searching for the firearm
approximately six minutes into the footage, canvassing the sidewalk, yards, and parked vehicles
-4-
No. 1-19-0955
with flashlights. About one minute later, Hernandez and other officers approach Martinez, who is
standing beside the firearm and tells them that he “knew it,” and demonstrates a throwing motion
he saw one of the individuals make after the person in yellow issued the warning. After recovering
the firearm, Martinez tells the sergeant that Alvarez and the shorter individual were near the
firearm and that he saw the taller one make, a throwing gesture, which he demonstrates again.
¶ 15 On the next court date, defense counsel argued that the video bolstered the defense’s
arguments at trial that Martinez did not see Alvarez throw a shiny, silver object because the video
showed the scene was dark, the firearm was under a large SUV situated four or five vehicle lengths
from where the officers stopped their own vehicle, the SUV was between the officers and Alvarez,
the assisting officers were not directed to the SUV, and Martinez did not mention a shiny silver
object to anyone on the scene. The court review the video in its entirety, found Martinez credible
and denied the motion.
¶ 16 Following a hearing, the court sentenced Alvarez to one year’s imprisonment. Alvarez’s
motion to reconsider sentence was denied.
¶ 17 II. ANALYSIS
¶ 18 On appeal, Alvarez argues the State failed to prove beyond a reasonable doubt that he
possessed a firearm. Alvarez also argues the State’s evidence was insufficient because no physical
evidence linked him to the firearm, and Martinez’s testimony was incredible and impeached on
cross-examination and by the footage contained in People’s Exhibit No. 1.
¶ 19 When reviewing the sufficiency of the evidence, a reviewing court determines 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. Gray, 2017 IL
-5-
No. 1-19-0955
120958, ¶ 35. The trier of fact is charged with resolving conflicts in the testimony, weighing the
evidence, and drawing reasonable inferences from the facts. Id. A trier of fact’s credibility
determinations are entitled to great deference, and a reviewing court will not substitute its
judgment for that of the trier of fact on questions involving the credibility of witnesses or the
weight of the evidence. Id. A conviction will not be reversed unless the evidence is so
unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of the defendant’s guilt.
Id.¶ 20 The testimony of a single witness, if positive and credible, may sustain a conviction. Id at
¶ 36. Eyewitness testimony is insufficient only where the record evidence compels the conclusion
that no reasonable person could accept the testimony beyond a reasonable doubt. Id. The same
standard of review applies whether the evidence is direct or circumstantial, and circumstantial
evidence may be sufficient to sustain a criminal conviction. People v. Jackson, 2020 IL 124112,
¶ 64.
¶ 21 To convict Alvarez of AUUW, the State was required to prove that he possessed an
uncased, loaded, immediately accessible firearm on his person without a valid CCL or FOID card.
720 ILCS 5/24-1.6(a)(1), (a)(3) (A-5); (a)(1), (a)(3)(C) (West 2018). Alvarez does not contest that
he had not been issued a valid CCL or FOID card, only that the State did not prove that he
possessed a firearm.
¶ 22 “Possession may be actual or constructive.” People v. Balark, 2019 IL App (1st) 171626,
¶ 94. Actual possession is the exercise of present personal dominion over illicit material and exists
when a person exercises immediate and exclusive dominion or control over the material. Id. It does
-6-
No. 1-19-0955
not require present personal touching of the contraband. Id. Actual possession of a weapon may
be shown by testimony that the defendant tried to conceal it or throw it away. Id.¶ 23 At trial, Martinez testified that, as the officers drove down 23rd, the person in yellow
alerted Alvarez, who crouched and threw a silver, shiny object beneath a vehicle. Subsequently,
the officers detained Alvarez, the shorter individual he was with, and the person in yellow. Officers
canvassed the area, and Martinez recovered a loaded, silver firearm underneath a vehicle. He did
not observe other shiny objects or observe anyone else throw anything. Once Alvarez was
detained, no one else was near the firearm besides a woman walking her dogs, who did not arrive
until after the incident occurred. From that evidence, a rational trier of fact could find that Alvarez
had actual possession of the firearm. See Jackson, 2020 IL 124112, ¶ 70 (trier of fact need not be
satisfied beyond reasonable doubt as to each fact in chain of circumstances so long as all evidence,
taken together, satisfies trier of fact of defendant’s guilt beyond reasonable doubt); see also Balark,
2019 IL App (1st) 171626, ¶ 94 (actual possession may be proven by testimony defendant tried to
conceal or throw away weapon).
¶ 24 Alvarez argues that Martinez’s testimony that he saw Alvarez throw a shiny, silver object
under a vehicle was incredible because he did not tell anyone at the scene about the object,
including the sergeant to whom he demonstrated the throwing motion, and detained the individual
in yellow upon exiting his vehicle rather than immediately recover the object or direct another
officer to do so.
¶ 25 Viewing the evidence in the light most favorable to the State, we find a rational trier of fact
could accept Martinez’s testimony. While Martinez did not describe a shiny, silver object to
anyone on the scene, and stated that the search for the firearm began about six minutes after he
-7-
No. 1-19-0955
started his body camera, he also testified that he told the sergeant that he saw Alvarez throw
something, and Hernandez’s body camera footage depicts Martinez standing next to the firearm
and telling other officers that he “knew it.” The video also shows Martinez demonstrating the
throwing motion to the officers and again to the sergeant. It also shows Martinez clarifying to the
sergeant that Alvarez and the shorter individual were near the firearm, and it was the taller one
who made the throwing gesture.
¶ 26 Alvarez further argues that Martinez’s own body camera footage undermines his testimony
because it shows the scene was dark; he did not tell anyone about the shiny, silver object; he did
not immediately search the area he testified Alvarez threw the weapon or instruct another officer
to do so; and he asked questions of the detained individuals without inquiring about Alvarez
crouching or throwing a shiny object.
¶ 27 Although the footage from Martinez’s body camera is contained on the disk admitted as
People’s Exhibit No. 1, that footage was not shown at trial and neither party asked the court to
view it during the trial. The court announced its verdict immediately following closing arguments,
and the transcript does not reflect a recess where the court might have viewed Martinez’s body
camera footage. Defense counsel did not request the court view Martinez’s footage in connection
with Alvarez’s posttrial motion. Therefore, while both parties rely on Martinez’s video footage on
appeal, the record does not show that the court viewed that footage at any time.
¶ 28 The court heard Martinez testify to many of the same circumstances that Alvarez posits are
shown by Martinez’s body camera footage—namely, that he did not mention a shiny, silver object
on the scene. The officers began searching for the firearm approximately six minutes after
Martinez and Hernandez activated their body cameras, and they investigated yards and around
-8-
No. 1-19-0955
parked cars before the firearm was discovered. Ultimately, the court found Martinez credible, and
given that Martinez told the sergeant that he saw Alvarez throw something and Hernandez’s body
camera footage depicts him demonstrating the throwing motion and telling other officers that he
“knew it” while he stands near the firearm, the record evidence is not so insufficient that no rational
trier of fact could accept Martinez’s testimony beyond a reasonable doubt. See Gray, 2017 IL
120958, ¶¶ 35-36 (reviewing court will not substitute its judgment for that of the trier of fact on
questions involving witness’s credibility, and eyewitness testimony is insufficient only where no
reasonable person could accept it beyond reasonable doubt).
¶ 29 III. CONCLUSION
¶ 30 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 31 Affirmed.
-9-