People v. Martinez

                                             SIXTH DIVISION
                                             December 20, 1996













No. 1-95-4269

THE PEOPLE OF THE STATE OF ILLINOIS,   )  Appeal from the
                                       )  Circuit Court of
     Plaintiff-Appellee,               )  Cook County.
                                       )
          v.                           )  
                                       )
MATT MARTINEZ,                         )  Honorable
                                       )  Stanley Sacks,
     Defendant-Appellant.              )  Judge Presiding.

     JUSTICE GREIMAN delivered the opinion of the court:
     Matt Martinez (defendant) was convicted of unlawful use of a
weapon in a bench trial held on August 31, 1995. Defendant
appeals his conviction, arguing that his possession of an
inoperable stun gun or taser was not culpable conduct under
section 24-1(a)(4) of the Criminal Code of 1961. 720 ILCS 5/24-
1(a)(4) (West 1994). For the reasons that follow, we affirm.
     On January 12, 1995, defendant, a 28-year-old cab driver,
walked through a metal detector stationed inside Chicago police
headquarters at 1121 South State Street carrying a stun gun in
his fanny pack. Deputy sheriff Daniel Vittrio was operating the
metal detector and observed defendant trigger the machine's
alarm. Vittrio detained defendant and searched his fanny pack,
recovering what "he believed to be a stun gun." Vittrio summoned
the police, who placed defendant under arrest.
     When identifying the stun gun in court, Vittrio testified
that it was in the same condition as when he recovered it on
January 12, 1995. Vittrio confirmed that there was a crack on the
casing near the antennae, but he did not know if this rendered
the gun inoperable. Defense counsel tested the gun against his
own hand, and Vittrio acknowledged that the gun did not "shock"
defense counsel. 
     Defendant testified that he purchased the stun gun for
protection in August of 1994. Defendant accidentally dropped the
stun gun in November of 1994, causing a screw to fall out, which
rendered the gun incapable of producing electric current. Also,
one antenna was "different" from the other. Defendant continued
to carry the stun gun because he believed "the sight of it alone
might deter someone from attacking him."
     At the close of trial, the court found defendant guilty of
unlawful use of a weapon and sentenced him to one year's
probation with the provision that he perform 10 hours of
community service. Defendant appeals from this finding and
sentence.
     The relevant inquiry on appeal is whether, upon 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. Young, 128 Ill. 2d 1, 49 (1989). 
     "A person commits the offense of unlawful use of weapons
[UUW] when he knowingly *** [c]arries or possesses in any vehicle
or concealed on or about his person except when on his land or in
his own abode or fixed place of business any pistol, revolver,
stun gun or taser or other firearm." 720 ILCS 5/24-1(a)(4) (West
1992). By statutory definition, a "stun gun or taser" means:
               "(i) any device which is powered by electrical
          charging units, such as, batteries, and which fires one
          or several barbs attached to a length of wire and
          which, upon hitting a human, can send out a current
          capable of disrupting the person's nervous system in
          such a manner as to render him incapable of normal
          functioning or (ii) any device which is powered by
          electrical charging units, such as batteries, and
          which, upon contact with a human or clothing worn by a
          human, can send out current capable of disrupting the
          person's nervous system in such a manner as to render
          him incapable of normal functioning." 720 ILCS 5/24-
          1(a)(10) (West 1992).
     Defendant maintains that because his stun gun was inoperable
at the time of his arrest, it does not meet the definition of
"stun gun" found in section 24-1(a)(10). Therefore, he argues,
the State failed to prove him guilty of UUW beyond a reasonable
doubt. This argument is premised on defendant's interpretation of
the language "can send out a current capable of disrupting the
person's nervous system in such a manner as to render him
incapable of normal functioning." (Emphasis added.) 720 ILCS 24-
1(a)(10) (West 1992). Since a broken stun gun is not capable of
emitting such a charge, it does not, defendant argues, qualify as
a prohibited weapon under section 24-1(a)(4).
     Defendant's argument, though provocative, is misplaced.
Contrary to defendant's interpretation, we find the words "can
send" to be descriptive of a stun gun and its function rather
than requiring a present ability to send an incapacitating
charge. A stun gun, like any other tool or device, is not changed
in character merely because of its present inability to perform.
This finding is amply supported by precedent dealing with
firearms. See People v. Williams, 266 Ill. App. 3d 752, 755
(1994) (unloaded handgun); People v. Trask, 167 Ill. App. 3d 694,
708 (1988) (unloaded shotgun); People v. Delk, 96 Ill. App. 3d
891, 903 (1981) (rusty, unloaded and difficult-to-pump shotgun);
People v. Strompolis, 2 Ill. App. 3d 289, 292 (1971) (unloaded,
encased shotgun); People v. White, 33 Ill. App. 3d 523, 530
(1975) (unloaded, broken firing pin); People v. Halley, 131 Ill.
App. 2d 1070, 1072-73 (1971) (witnesses unable to testify whether
gun was real or toy); People v. Hughes, 123 Ill. App. 2d 115, 122
(1970) (inoperable "zip gun"). 
     The statute does not require that a stun gun be operational
in order to serve as the basis of a UUW charge under section 24-
1(a)(4), and we decline to impose such a requirement. See People
v. Bryant, 128 Ill. 2d 448, 455 (1989) (court's function in
construing statute is to ascertain and effectuate the intent of
the legislature). Accordingly, we affirm the trial court's
finding that defendant's device met the statutory definition of a
stun gun. 
     Alternatively, defendant argues that a stun gun made
inoperable because of a missing piece falls within the statutory
exemption for "broken down" or "not immediately accessible"
weapons. Exemptions from criminal liability for the offense of
UUW exist for "weapons that are broken down in a non-functioning
state or are not immediately accessible." 720 ILCS 5/24-2(b)(4)
(West 1992). The defendant bears the burden of proving his
entitlement to the exemption by a preponderance of the evidence. 
720 ILCS 5/24-2(h) (West 1992); People v. Smith, 71 Ill. 2d 95,
105 (1978).
     For purposes of the statutory exemptions, accessibility
refers to the proximity of the weapon to the defendant and the
capability of the defendant to reach the weapon. Williams, 266
Ill. App. 3d at 756; Smith, 71 Ill. 2d  at 102 ("[s]o long as the
weapon in question is in such proximity to the accused as to lie
within easy reach so that the weapon is readily available for
use, it is 'immediately accessible'"); see also People v.
Bolling, 181 Ill. App. 3d 845 (1989) (handgun in a zippered
athletic bag in the back seat of a car was accessible to the
driver). In the present case, the stun gun's location in
defendant's fanny pack, worn around his waist, was clearly and
immediately accessible.
     Alternatively, defendant argues that his stun gun, which was
missing a screw, had a crack in its casing and was unable to emit
an electric current, was "broken down in a non-functioning
state." 720 ILCS 5/24-2(b)(4) (West 1992). This exemption
requires that the gun must be not only non-functioning but also
broken down, meaning disassembled. Williams, 266 Ill. App. 3d at
756; Delk, 96 Ill. App. 3d at 902-03 (testimony that the shotgun
was unloaded, rusty and difficult to pump did not render the
weapon broken down in a non-functioning state) (and cases cited
therein). Even if the weapon was inoperable at the time of
defendant's arrest, that alone would not prove the statutory
exemption. Williams, 266 Ill. App. 3d at 757; Delk, 96 Ill. App.
3d at 902. 
     In People v. Worlds, 80 Ill. App. 3d 628, 632 (1980), the
court found that the "so-called gun," which was rusty, missing a
handle and unable to be cocked, was in such a decrepit state that
it could not properly be classified as a gun or deadly weapon. In
the present case, defendant's stun gun had a crack in the casing,
a missing screw and one "different" antenna. The trial court had
the opportunity to examine the gun at trial (no photograph of the
weapon is in the record before this court) and concluded that it
was not "broken down" for purposes of the exemption. We will
defer to the trial court's finding.
     In People v. Freeman, 196 Ill. App. 3d 370, 371-72 (1990),
the court found that defendant's act of removing the gun's
cylinder prior to transporting it was sufficient to fall within
the "broken down in a non-functioning state" exemption. Here,
defendant dropped the stun gun in November and testified that it
did not work thereafter. This was not an affirmative act to make
the weapon safe for purposes of transport but, rather, an
accident that seemingly rendered the gun inoperable. For all
practical purposes, the stun gun was intact and gave the
impression, as testified to by deputy sheriff Vittrio, that it
was a functional device. That a screw may have come off when
defendant dropped the gun is not analogous to the consciously
disassembled weapon in Freeman. As the State observes, the
exemption applies to weapons that are "broken down," not simply
broken.
     Lastly, defendant contends that stun guns or tasers "have a
unique definition which set[s] them wholly apart from firearms."
Consequently, defense counsel urges this court to avoid analogy
to firearm precedent in this area. We reject this contention, and
advice, because the legislature has expressly included firearms
and stun guns within the category of "unlawful weapons." The fact
that "stun gun" has its own definition is due to the somewhat
technical and uncommon nature of the device, and not the result
of the legislature's intention that such devices receive
treatment separate and apart from other unlawful weapons.
     For the reasons set forth above, we affirm the trial court's
verdict and judgment.
     Affirmed. 
     CERDA, J., and GALLAGHER, J., concur.