Background
After Aurora police tried to stop a Chevrolet Impala for an equipment violation, the driver fled and the front-seat passenger ran from the vehicle. Officers identified Thomas as that passenger. During the ensuing foot chase, officers saw him holding his waistband, and he ran through a neighborhood while wearing a red jacket and black pants.
Police later found a loaded Glock 19 in a fenced backyard along Thomas’s flight path. The homeowner testified that no one at the home owned a gun and that it was not in the yard earlier that evening. A jury convicted Thomas of armed habitual criminal, unlawful use or possession of a weapon by a felon, and unlawful possession of a firearm without a FOID card. The trial court merged the latter two counts into the armed-habitual-criminal conviction and imposed a 10-year prison term.
The Court’s Holding
The appellate court affirmed. It held that the circumstantial evidence was sufficient to establish Thomas’s constructive possession of the firearm. Although no officer saw him holding or discarding the gun and forensic testing did not tie him to it, the jury could reasonably infer that he threw it into the fenced yard while fleeing: officers saw him clutching his waistband, the gun was dry and on top of leaves, and the homeowner’s testimony supported that it had recently appeared there.
The court also rejected Thomas’s claim that the State improperly used his refusal to provide a buccal DNA swab as evidence of guilt. It recognized that the State ordinarily may not introduce evidence of a defendant’s exercise of the right to refuse a warrantless search. But Thomas invited the issue by making the absence of DNA testing a central theme of his opening statement. The State could therefore explain why the collected DNA was not tested, and counsel’s handling of the issue could reasonably have been trial strategy rather than ineffective assistance.
Finally, the court held that Thomas forfeited his specific challenge to the trial court’s use of gang activity as an aggravating factor by failing to raise it in his motion to reconsider sentence. In any event, the record supported the finding, and the 10-year sentence was within the 6-to-30-year range and not an abuse of discretion.
Key Takeaways
- Constructive possession may be proved by circumstantial evidence; forensic evidence is not required.
- A defendant who makes untested DNA evidence a central defense theme can open the door to the State’s explanation for the lack of testing.
- A specific sentencing claim generally must be raised in a postsentencing motion to preserve it for appeal.
Why It Matters
The decision illustrates how flight-path evidence, observed conduct, and the condition and location of a recovered weapon can support a firearm-possession conviction without direct observation or usable DNA or fingerprint evidence.
It also underscores the strategic risk of emphasizing missing forensic testing: doing so may permit the prosecution to introduce otherwise improper evidence explaining why testing did not occur.