People v. Dal Collo

No. 3--96--0728

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IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 1998

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court

OF ILLINOIS, ) of the 9th Judicial Circuit,

) Knox County, Illinois

Plaintiff-Appellee, )

)

v. ) No. 96--CF--32

)

ANGELO DAL COLLO,               ) Honorable

                               ) Stephen C. Mathers

Defendant-Appellant. ) Judge, Presiding

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PRESIDING JUSTICE McCUSKEY delivered the Opinion of the court:

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Following a jury trial, the defendant, Angelo Dal Collo, was con­vict­ed of unlaw­ful possession of contraband in a penal insti­tu­tion  (720 ILCS 5/31A--1.1 (West 1996)).  He was subse­quently sentenced to a seven-year term of imprison­ment, to be served consecutively to his current term.  On appeal, the defen­dant argues:  (1) the State failed to prove him guilty beyond a reasonable doubt; and (2) the trial court erred at sentencing when it consid­ered the threat of serious harm as an aggravating factor.  After a careful review of the record, we affirm.

FACTS

At trial, correctional officer Charles Garrison testified that on December 3, 1995, he was performing random pat-down searches of inmates returning from the gymnasium at Hill Correc­tional Center.  Garrison stopped the defendant as he came out of the gymnasium and proceeded to pat him down.  In the course of the search, he found a broken file clip in the defendant's front jeans pocket.  

Garrison further testified that the clip was made of metal and was approximately 2 to 2½ inches in length.  It had been sharpened on the outer edges.  In Garrison's opinion, the clip was sharp enough to shave a beard.  He said that he consid­ered the clip a shank because of its alterations.  Garrison believed the clip was sharp enough to cause bodily injury or death.  Garrison was told by the defendant that the clip belonged to him, but he could not explain why he had brought it to the gymnasium.

Correctional officer Tammy Connour testified that she questioned the defendant about the clip.  According to Connour, the defendant told her he obtained the clip from another inmate and that it had been sharpened to a razor's edge before he possessed it.  The defendant also said that the clip was not used as a weapon.  He said he used the clip as a cardboard cutter to make a shelving unit for his cell.  In Connour's opinion, the clip was a dangerous weapon because it had the potential to maim a person.

The defendant testified that he used the clip to cut holes out of cardboard and assemble them into shelving units.  Accord­ing to the defendant, he told Connour that the clip was not very sharp because a sharp blade is not required to cut cardboard.  He never told Connour that the clip was razor sharp.  In his opin­ion, it would not be sharp enough to shave a beard.

At the sentencing hearing, the trial judge said that he be­lieved the defendant only intended to use the clip to cut card­board.  He also believed that the defendant never intended to harm anyone.  However, the judge determined that a threat of harm existed because the clip could be used to harm someone if another inmate obtained it from the defendant.  

ANALYSIS

Reasonable Doubt

On appeal, the defendant first argues that he was not proven guilty beyond a reasonable doubt because the State failed to prove that the metal clip was contra­band.  Specifically, he contends that the clip was not a "weapon" as defined within the statute.  We disagree.

The statute prohibiting the possession of contraband in a penal institution states that a "weap­on" is an item of contra­band.  720 ILCS 5/31A--1.1(c)(2)(v) (West 1996).  The statute defines a weapon as, among other things, a "knife, dagger, dirk, billy, razor, stilet­to, bro­ken bottle, or other piece of glass which could be used as a dangerous weapon."  720 ILCS 5/31A--1.1(c)(2)(v) (West 1996).  

In assessing whether the defendant has been proven guilty beyond a reasonable doubt, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecu­tion, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.   People v. Collins , 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985).  Moreover, determinations regarding the credibility of witnesses, the weight to be given to their testimony and the reasonable inferences to be drawn from the evidence are the responsibility of the trier of fact.   People v. Steidl , 142 Ill. 2d 204, 226, 568 N.E.2d 837, 845 (1991).  

Here, in the instant case, officer Garrison testi­fied that the metal clip had been sharp­ened on both its outer edges.  According to Garri­son, the clip was sharp enough to shave a beard or cause bodily injury or death.  Moreover, officer Connour testi­fied the defendant told her that the clip had been "sharp­ened to a razor's edge" before he pos­sessed it.  Based on this testi­mony, the jury could have reasonably concluded that the sharpened metal clip was properly characterized as a razor, thereby falling within the definition of a weapon.  Thus, after viewing the evi­dence in the light most favor­able to the prosecu­tion, we find that a rational trier of fact could reasonably find the defen­dant possessed a weapon.  As a result, we conclude that the State proved the defen­dant guilty beyond a reason­able doubt of unlawful possession of contraband in a penal institu­tion.

Sentencing

Next, the defendant contends that we should reduce his sen­tence to the statutory minimum or remand for resentencing because the trial judge erroneously considered an inherent element of the offense in sentencing him.  Specifically, the defendant claims that it was improp­er for the judge to consider the inher­ent threat of serious harm as an aggravating factor.

As a general rule, a sentencing court should not consider  in aggravation any factor that is inherent in the offense. People v. Gray , 212 Ill. App. 3d 613, 616, 571 N.E.2d 489, 492 (1991).  However, it is proper for a judge to consider the nature and circumstances of the offense.   People v. King , 151 Ill. App. 3d 662, 663, 503 N.E.2d 365, 367 (1986).  In determin­ing whether a sentence was improp­erly imposed, a reviewing court should not focus on a few words or statements of the trial judge.  Instead, it should consider the record as a whole.   People v. Ward , 113 Ill. 2d 516, 526-27, 499 N.E.2d 422, 425-26 (1986).

In this case, a careful review of the record indicates that the judge's comment was made in response to the defendant's testi­mo­ny that he used the clip as a tool and not as a weapon.  The judge noted that although he believed the defendant's story, the possession of this type of weapon threatened the safety of prison officials and inmates if another inmate gained access to the clip.  Thus, when viewed in its proper context, the judge's comment was merely a re­sponse to the defendant's claim that he used the clip as a tool.  As such, we find the judge's comment was proper after reviewing the circum­stances of the crime.  In sum, we find the trial judge commit­ted no error and the defen­dant is not entitled to any relief.

Accordingly, the judgment of the circuit court of Knox County is affirmed.

Affirmed.

LYTTON and HOMER, JJ., concurring.