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 insti-
tution (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 Correc-
tional 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 2« 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. Accord-
ing 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 opin-
ion, it would not be sharp enough to shave a beard.
At the sentencing hearing, the trial judge said that he be-
lieved the defendant only intended to use the clip to cut card-
board. 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 contra-
band. 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 "sharp-
ened 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 prosecu-
tion, 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 sen-
tence 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.