People v. Bronson

2021 IL App (4th) 190164-U

• Court: Appellate Court of Illinois
• Decided: February 8, 2021
• Docket: 4-19-0164
• Status: Unpublished

Opinion

2021 IL App (4th) 190164-U NOTICE FILED This Order was filed under February 8, 2021 Supreme Court Rule 23 and is NO. 4-19-0164 Carla Bender not precedent except in the limited circumstances allowed 4th District Appellate IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Livingston County DAVID L. BRONSON, ) No. 18CF35 Defendant-Appellant. ) ) Honorable ) Jennifer H. Bauknecht, ) Judge Presiding. ______________________________________________________________________________

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Knecht concurred in the judgment. Justice DeArmond specially concurred.

ORDER

¶1 Held: The evidence was sufficient to convict defendant for unlawful possession of a hypodermic syringe. The evidence was insufficient to convict defendant for obstructing justice.

¶2 In December 2018, following a bench trial, defendant, David L. Bronson, was

found guilty of obstructing justice (720 ILCS 5/31-4(a)(1) (West 2016)), unlawful possession of a

hypodermic syringe (720 ILCS 635/1 (West 2018)), and possession of a controlled substance (720

ILCS 570/402(c) (West 2018)). On appeal, defendant argues his convictions for unlawful

possession of a hypodermic syringe and obstructing justice should be reversed because the

evidence presented by the State was insufficient to sustain his conviction. We affirm defendant’s

conviction for unlawful possession of a hypodermic syringe, reverse his conviction for obstructing justice, and remand his case for resentencing on his remaining convictions.

¶3 I. BACKGROUND

¶4 On February 2, 2018, the State charged defendant with one count of obstructing

justice (720 ILCS 5/31-4(a) (West 2016)) and one count of unlawful possession of a hypodermic

syringe (720 ILCS 635/1 (West 2018)). The State subsequently charged defendant with one count

of possession of a controlled substance (720 ILCS 570/402(c) (West 2018)). Defendant’s case

proceeded to a bench trial in October 2018.

¶5 At defendant’s trial, the State first presented testimony from Corporal Derek

Schumm of the Pontiac Police Department. Corporal Schumm testified that, on January 31, 2018,

he responded to a report of a possible drug overdose. Less than a minute after Corporal Schumm

received the call, he arrived at the scene of the reported overdose. It had apparently occurred inside

a parked van one block away from the police department’s headquarters. Another officer arrived

shortly thereafter. While the other officer tended to the overdose victim, Corporal Schumm spoke

with a witness. According to Corporal Schumm, the witness told him of two other “persons of

interest,” a man and a woman who had “left the scene” prior to the officers’ arrival. Officers then

began looking for the two individuals.

¶6 Corporal Schumm testified that, minutes after the police began their search, Major

Dan Davis, another Pontiac police officer, located defendant and a woman one block from the

scene. Corporal Schumm joined Major Davis and the two questioned defendant “about the van and

what had happened.” According to Corporal Schumm, defendant “[i]nitially *** denied even being

in the van.” However, after Corporal Schumm confronted defendant with “what [he] had seen with

the overdosing subject” and with the statement of the witness with whom he had spoken, defendant

-2- admitted he had been in the van and had left when the person started to overdose. After a search

of defendant’s person failed to reveal any evidence, Corporal Schumm asked defendant “about

any disposal of possible evidence.” According to Corporal Schumm, defendant at first “denied

getting rid of anything after he left the van” but later admitted to disposing of “a couple of syringes

and a spoon” along the north side of the church that was adjacent to the location where Corporal

Schumm and Major Davis were questioning defendant. Defendant then led the officers to the place

where he had dropped the items. The officers collected the hypodermic syringes and spoon and

arrested defendant.

¶7 The State also called Major Dan Davis who testified consistently with Corporal

Schumm. However, Major Davis added that defendant admitted to hiding the hypodermic syringes

and spoon along the side of the church after he first saw Major Davis approach him in his squad

car.

¶8 After Major Davis testified, defendant’s bench trial was continued on the State’s

motion. When the trial resumed, the State presented a laboratory report from the Illinois State

Police Division of Forensic Services, the contents of which had been stipulated to by defendant.

According to the report, residue on the spoon collected by officers tested positive for fentanyl. The

State then rested.

¶9 Defendant testified on his own behalf. According to defendant, on January 31,

2018, he was walking near a church when he noticed “police everywhere and a drug dog and an

ambulance.” Defendant testified officers then approached him, told him they had discovered “the

needles and the spoon,” and began questioning him. Defendant denied that he had ever possessed

the spoon or the hypodermic needles and denied that he had placed the items near the church. The

-3- defense then rested.

¶ 10 After closing arguments, the trial court found defendant guilty of all charges. Later,

the court conducted a sentencing hearing at which it rendered an aggregate sentence for all three

convictions of 24 months’ probation, 40 hours’ community service, and 180 days’ imprisonment,

which the court held in abeyance pending completion of his term of probation. The court

subsequently denied defendant’s motion for a new trial.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, defendant argues his convictions for unlawful possession of a

hypodermic syringe and obstructing justice should be reversed because the evidence presented by

the State was insufficient to sustain his convictions.

¶ 14 “The State has the burden of proving beyond a reasonable doubt each element of

an offense.” People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876. When reviewing a claim that

the State’s evidence was insufficient to sustain a conviction, we must determine whether, “viewing

the evidence in the light most favorable to the State, a rational trier of fact could have found the

required elements of the crime beyond a reasonable doubt.” People v. Bradford, 2016 IL 118674,

¶ 12, 50 N.E.3d 1112. Under this standard of review, we will only reverse a conviction where the

evidence is “so improbable and unsatisfactory it creates a reasonable doubt as to defendant’s guilt.”

People v. Lewis, 2019 IL App (4th) 150637-B, ¶ 79, 123 N.E.3d 1153.

¶ 15 A. The Evidence Was Sufficient to Convict Defendant

for Possession of a Hypodermic Syringe

¶ 16 Defendant argues his conviction for unlawful possession of a hypodermic syringe

-4- should be reversed because the State failed to establish a necessary element of the offense.

Defendant was charged with, and convicted of, violating section 635/1 of the Hypodermic Syringes

and Needles Act. That section provides, in relevant part:

“(a) Except as provided in subsection (b), no person *** shall have in his or

her possession a hypodermic syringe, hypodermic needle, or any instrument

adapted for the use of controlled substances or cannabis by subcutaneous injection.

(b) A person who is at least 18 years of age may purchase from a pharmacy

and have in his or her possession up to 100 hypodermic syringes or needles.” 720

ILCS 635/1 (West 2018).

¶ 17 Defendant’s argument that the State failed to prove him guilty of violating the

Hypodermic Syringes and Needles Act is predicated on his interpretation of subsection 635/1(a).

Defendant contends the clause “adapted for the use of controlled substances or cannabis by

subcutaneous injection” not only modifies the word “instrument,” but also modifies “hypodermic

syringe” and “hypodermic needle.” Accordingly, defendant argues, to sustain his conviction, the

State was required to present evidence that he possessed a hypodermic syringe or needle adapted

for the subcutaneous injection of a controlled substance or cannabis. The State disagrees with

defendant’s interpretation. Because the parties disagree whether possession of a hypodermic

syringe, in the absence of evidence it has been adapted for the use of controlled substances or

cannabis by subcutaneous injection, violates the Hypodermic Syringes and Needles Act, we must

first construe the statutory language before addressing defendant’s sufficiency of the evidence

claim. See, e.g., Bradford, 2016 IL 118674, ¶ 14.

¶ 18 The rules governing statutory construction are well-established. “The primary

-5- objective of statutory construction is to ascertain and give effect to the true intent of the

legislature.” People v. Clark, 2019 IL 122891, ¶ 18, 135 N.E.3d 21. “The best indication of this

intent is the statutory language, given its plain and ordinary meaning. [Citation.] The words and

phrases in a statute should be construed in light of other relevant provisions and not in isolation.

[Citation.]” Bradford, 2016 IL 118674, ¶ 15. “We construe statutes as a whole, so that no part is

rendered meaningless or superfluous.” (Internal quotation marks omitted.) People v. Diggins, 235

Ill. 2d 48, 54, 919 N.E.2d 327, 331 (2009). In construing statutory language, we may consider “the

reason for the law, the problems sought to be remedied, the purposes to be achieved, and the

consequences of construing the statute one way or another.” People v. Gutman, 2011 IL 110338,

¶ 12, 959 N.E.2d 621. “Where the language is plain and unambiguous, it must be applied without

resort to further aids of statutory construction. [Citation.] Where the language is ambiguous,

however, we may consider external sources, such as legislative history, in order to discern the

intent of the legislature. [Citation.]” Bradford, 2016 IL 118674, ¶ 15. “The language of a statute is

ambiguous if it is susceptible to more than one reasonable interpretation.” People v. Boyce, 2015

IL 117108, ¶ 22, 27 N.E.3d 77.

¶ 19 Here, we find section 635/1 is not ambiguous. Considering the statute in its entirety,

defendant’s interpretation is unreasonable because it would render superfluous subsection

635/1(b), which provides an exception to the crime specified in subsection 635/1(a). See People

v. Fiumetto, 2018 IL App (2d) 170230, ¶ 16, 109 N.E.3d 756. If, as defendant suggests, subsection

635/1(a) were only meant to prohibit possession of hypodermic syringes and needles that are

adapted for the subcutaneous injection of controlled substances or cannabis, there would be no

need for the exception contained in subsection 635/1(b), which authorizes possession of unaltered

-6- and unmodified hypodermic syringes and needles. Defendant’s interpretation of subsection

635/1(a) would render the rest of the statute unnecessary. Instead, we interpret the statute to mean

that, unless an exception exists, possession of hypodermic syringes and hypodermic needles is

prohibited. We note this interpretation comports with case law and with the jury instruction

applicable to section 635/1. See, e.g., People v. Johnson, 174 Ill. App. 3d 726, 731, 528 N.E.2d

1356, 1360 (1988) (“In order to sustain a conviction for unlawful possession of a hypodermic

syringe ***, the State must prove beyond a reasonable doubt that the defendant had knowledge of

the presence of the syringe and was in immediate and exclusive control of it.”); People v. Hairston,

86 Ill. App. 3d 295, 300, 408 N.E.2d 382, 386 (1980) (“[The defendant’s] possession of the syringe

alone presented a prima facie case of a violation of the statute making unlawful possession of a

hypodermic syringe a crime.”); Illinois Pattern Jury Instruction, Criminal, No. 17.37 (approved

December 8, 2011) (stating a person commits the offense where he “knowingly has in his

possession [ (a hypodermic syringe) (a hypodermic needle) (any instrument adapted for the use of

a controlled substance or cannabis by subcutaneous injection) ]”).

¶ 20 Even assuming, arguendo, that subsection 635/1(a) is ambiguous, as defendant

suggests, we would still reject his interpretation. Defendant’s construal of subsection 635/1(a) is

based on a canon of construction utilized by the United States Supreme Court in Paroline v. U.S.,

572 U.S. 434 (2014). In that case, the Supreme Court, construing a different statute, wrote: “[w]hen

several words are followed by a clause which is applicable as much to the first and other words as

to the last, the natural construction of the language demands that the clause be read as applicable

to all.” (Internal quotation marks omitted.) Id. at 447. We do not believe this canon of construction

is applicable to subsection 635/1(a) because the clause “adapted for the use of controlled

-7- substances or cannabis by subcutaneous injection” is not as applicable to the terms “hypodermic

syringe” and “hypodermic needle” as it is to the word “instrument.” As the State notes, hypodermic

syringes and hypodermic needles are inherently adapted for the purpose of subcutaneously

injecting substances into the body. A “hypodermic syringe” is defined as “a small syringe used

with a hollow needle for injection of material into or beneath the skin” (Merriam-Webster Online

Dictionary, https://www.merriam-webster.com/dictionary/hypodermic%20syringe (last visited

Dec. 23, 2020)) and a “hypodermic needle” is defined as “a hypodermic syringe complete with

needle” (Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/hypodermic%20needle (last visited Dec. 23, 2020)). Thus, unlike the

nondescript “instrument,” the terms hypodermic syringe and hypodermic needle do not require the

same descriptive qualifier to identify them as objects that are adapted to subcutaneously inject

substances into the body. Applying the description “adapted for the use of controlled substances

or cannabis by subcutaneous injection” to “hypodermic syringe” and “hypodermic needle” would

therefore be redundant.

¶ 21 We agree with the State that, even if section 635/1 is ambiguous, applying the last

antecedent rule provides the most reasonable interpretation of the statute. The last antecedent

doctrine “provides that relative or qualifying words or phrases in a statute serve only to modify

words or phrases which are immediately preceding. They do not modify those which are more

remote.” People v. Davis, 199 Ill. 2d 130, 138, 766 N.E.2d 641, 645 (2002). Applying the last

antecedent rule here, the clause “adapted for the use of controlled substances or cannabis by

subcutaneous injection” modifies only the word “instrument.” As noted above, this interpretation

resolves the conflict between subsections 635/1(a) and 635/1(b) that would result if, as defendant

-8- suggests, the clause modified “hypodermic syringe,” “hypodermic needle,” and “instrument.”

¶ 22 We now turn to defendant’s argument that the evidence was insufficient to establish

the essential elements of unlawful possession of a hypodermic syringe. As stated above, section

635/1 requires that, to sustain a conviction, the State was only required to prove defendant

possessed a hypodermic syringe. Under our case law, the State was also required to prove

defendant possessed the hypodermic syringe knowingly. See Johnson, 174 Ill. App. 3d at 731. The

State’s evidence was sufficient to meet its burden. Viewed in the light most favorable to the

prosecution, the evidence presented at trial showed defendant knowingly possessed the

hypodermic syringes until he saw Major Davis approaching him at which time he disposed of the

syringes next to a church. Thus, the evidence was sufficient to sustain defendant’s conviction.

¶ 23 B. The Evidence Was Insufficient to Convict Defendant for Obstructing Justice

¶ 24 Defendant also argues his conviction for obstructing justice should be reversed

because the State failed to establish a necessary element of the offense. Specifically, defendant

claims his conviction should be reversed because “the State failed to present any evidence that [he]

concealed evidence in a manner that materially impeded his prosecution.” In support of his claim,

defendant relies on People v. Comage, 241 Ill. 2d 139, 946 N.E.2d 313 (2011).

¶ 25 The offense of obstructing justice through concealment is set forth in section

31-4(a)(1) of the Criminal Code of 2012 (720 ILCS 5/31-4(a)(1) (West 2016)), which states as

follows:

“A person obstructs justice when, with intent to prevent the apprehension

or obstruct the prosecution or defense of any person, he or she knowingly commits

any of the following acts:

-9- (1) Destroys, alters, conceals or disguises physical evidence, plants false

evidence, [or] furnishes false information ***.”

¶ 26 In Comage, our supreme court considered “whether certain physical evidence was

‘concealed’ within the meaning of Illinois’ obstructing justice statute.” Comage, 241 Ill. 2d at 140.

In that case, police officers investigating a theft at a gas station encountered the defendant, who

matched the description they had been given of the suspect. Id. at 142. Before the officers could

question the defendant, he ran away from them and into a nearby parking lot. Id. When the officers

ordered the defendant to stop, he did so and identified himself. Id. After initially cooperating with

the police, the defendant again ran from the officers, who pursued him. Id. During the chase, the

officers observed the defendant “reach into his pocket, pull out two rod-like objects that were five

to six inches in length, and throw them over a six-foot-tall, wooden privacy fence” that abutted the

parking lot. Id. The officers had a clear view of the defendant throwing the objects because the

area was “well-lit with artificial lighting.” (Internal quotation marks omitted.) Id. After the police

secured the defendant, one of the officers walked around the other side of the fence and, within 20

seconds of searching, recovered a crack cocaine pipe and a push rod which were within 10 feet of

where the defendant was apprehended. Id. at 142-43.

¶ 27 The defendant in Comage argued “the State failed to prove him guilty beyond a

reasonable doubt of obstructing justice because he never concealed the crack pipe and push rod.”

Id. at 143. In its review of the obstructing justice statute, our supreme court noted, “in enacting

section 31-4, the legislature intended to criminalize behavior that actually interferes with the

administration of justice, i.e., conduct that obstructs prosecution or defense of any person.”

(Emphasis in original and internal quotation marks omitted.) Id. at 149. The court then reasoned,

- 10 - “a defendant who places evidence out of sight during an arrest or pursuit has ‘concealed’ the

evidence for purposes of the obstructing justice statute if, in doing so, the defendant actually

interferes with the administration of justice, i.e., materially impedes the police officers’

investigation.” Id. at 150. Ultimately, the court found, although the items defendant had thrown

over the fence were “briefly out of the officers’ sight,” he did not materially impede the officers’

investigation and, accordingly, did not conceal the items within the meaning of the statute. Id.

¶ 28 The supreme court recently reaffirmed its decision in Comage. In People v. Casler,

2020 IL 125117, ¶ 41, the supreme court extended the reasoning employed in Comage and held,

regardless of whether a defendant is charged with obstruction of justice by concealing evidence or

by providing false information, “a defendant’s acts must be a material impediment and must be

proved in a prosecution for obstructing justice.” In Casler, the court cited with approval People v.

Taylor, 2012 IL App (2d) 110222, 972 N.E.2d 753, which, although somewhat different from the

present case, we find instructive.

¶ 29 In Taylor, a police officer testified he was on patrol when he observed the

defendant, whom he recognized from previous interactions. Id. ¶ 3. The officer knew the defendant

was wanted on a warrant. Id. After confirming the defendant’s warrant was still active, the officer

approached the defendant and asked him for identification because, although the officer was

“pretty sure” of the defendant’s identity, he was not positive. (Internal quotation marks omitted.)

Id. ¶¶ 3-4. The defendant identified himself as “Keenan T. Smith.” Id. ¶ 4. The officer ran this

name through his computer system, which did not show that any such person existed. Id. The

officer returned to the defendant who finally divulged his real name. Id. The officer arrested the

defendant and then confirmed the defendant’s identity by looking at the identification card he was

- 11 - carrying. Id.

¶ 30 On appeal, the defendant in Taylor argued “the evidence was insufficient to support

his conviction for obstruction of justice, because the evidence showed that his conduct of initially

giving [the officer] a false name did not materially impede the investigation.” Id. ¶ 8. The

reviewing court noted “the relevant issue in weighing a sufficiency-of-the-evidence challenge to a

conviction for obstruction of justice is whether the defendant’s conduct actually posed a material

impediment to the administration of justice.” Id. ¶ 17. The court found the defendant did not

materially impede the officer’s investigation by providing a false name because the entire

encounter lasted only a few minutes and the defendant’s actions did not significantly delay his

arrest or pose a substantial risk that the officer would “mistakenly allow” the defendant to go free.

Id. ¶¶ 17-18. The court ultimately reversed the defendant’s conviction. Id. ¶ 19.

¶ 31 Based on the above authority, we find the State did not prove defendant here guilty

of obstructing justice because it failed to establish his conduct materially impeded the police

officers’ investigation. Viewed in the light most favorable to the prosecution, the State’s evidence

established that, after defendant observed Major Davis approaching in his squad car, he hid two

hypodermic syringes and a spoon outside of a church. Once police officers stopped defendant and

began questioning him, he initially denied knowledge of the overdose incident and denied that he

disposed of any contraband. The police searched defendant’s person and did not discover any

incriminating evidence. At trial, neither party asked the officers how long they questioned

defendant before he confessed that he hid the items and revealed their location. However, even

considering the evidence in the light most favorable to the State, it is doubtful it was more than a

few minutes. We note that, as in Taylor, the entire exchange between defendant and the officers

- 12 - lasted only a short time and his actions did not significantly delay or otherwise hinder the police

officers’ investigation.

¶ 32 Accordingly, because no evidence was introduced that defendant’s actions

materially impeded the police officers’ investigation, the State failed to establish an essential

element of the offense of obstructing justice beyond a reasonable doubt and defendant’s conviction

must therefore be reversed.

¶ 33 Because the State’s evidence was insufficient to sustain defendant’s conviction for

obstructing justice, we find defendant would be subject to double jeopardy if he were retried. For

this reason, retrial of defendant is barred. See People v. Williams, 239 Ill. 2d 119, 133, 940 N.E.2d

50, 59 (2010) (“When a conviction is reversed based on evidentiary insufficiency, the double

jeopardy clause precludes the State from retrying the defendant, and the only proper remedy is a

judgment of acquittal.”). Further, because the trial court issued an aggregate sentence for all three

convictions, and we now reverse defendant’s conviction for obstructing justice, remand for

resentencing on the remaining two convictions is necessary. See, e.g., People v. Allen, 288 Ill.

App. 3d 502, 509, 680 N.E.2d 795, 801 (1997).

¶ 34 III. CONCLUSION

¶ 35 For the reasons stated, we affirm defendant’s conviction for unlawful possession of

a hypodermic syringe, reverse his conviction for obstructing justice, and remand his case for

resentencing on his remaining convictions.

¶ 36 Affirmed in part, reversed in part, and remanded with directions.

¶ 37 JUSTICE DeARMOND, specially concurring:

- 13 - ¶ 38 I reluctantly agree with both the disposition and the reasoning of the majority,

considering our supreme court’s holding in Comage and subsequent cases. As a matter of

stare decisis, I accept the majority’s application of Comage and Taylor, endorsed by the supreme

court in Casler, because the majority is merely applying the law. Indeed, the majority correctly

notes the Comage decision controls the issue of whether defendant can be found guilty of

obstructing justice.

¶ 39 Like Comage, this case turns on whether the defendant “concealed” contraband.

But the Comage decision’s conclusion that a defendant’s acts must be a material impediment to

the administration of justice added an element absent from the statute. In Comage, finding the

word “conceal” ambiguous and in need of judicial construction, the supreme court turned to

dictionary definitions and case law (mostly from other jurisdictions) for a definition. Comage, 241

Ill. 2d at 144-48.

¶ 40 The fact patterns of almost all the cases upon which Comage relied are similar:

police officers observing a defendant tossing drugs and finding the drugs in the location where a

defendant was observed tossing them. As an example, in seeking to define “conceal,” the court in

Comage closely examined the Second District case, In re M.F., 315 Ill. App. 3d 641, 647-50, 734

N.E.2d 171, 176-78 (2000), which, in turn, relied on out-of-state cases (Vigue v. State, 987 P.2d

204 (Alaska App. 1999); Commonwealth v. Delgado, 544 Pa. 591, 679 A.2d 223 (1996); State v.

Patton, 898 S.W.2d 732 (Tenn. Crim. App. 1994); Hollingsworth v. State, 15 S.W.3d 586 (Tex.

Ct. App. 2000); Boice v. State, 560 So.2d 1383 (Fla. App. 1990)). After analyzing these out-of-

state cases and others, the M.F. court found the following common denominator:

- 14 - “It appears that, under the scenarios presented, the clear weight of authority

from other states concludes that where a defendant merely drops, throws down, or

abandons drugs in the vicinity of the defendant and in the presence and view of the

police, this conduct does not constitute concealment that will support an evidence-

tampering or obstruction charge, or a conviction that is additional to and separate

from the ongoing possessory offense.” (Emphasis added) M.F., 315 Ill. App. 3d at

650.

¶ 41 Besides refusing to find “concealment” when drugs are abandoned in the vicinity

of defendant and in view of the police, the Second District cautioned against applying

“concealment” to possessory offenses where the concealed items are hidden on defendant’s person

(see State v. Fuqua, 303 N.J. Super. 40, 46, 696 A.2d 44, 47 (1997) (cocaine hidden in defendant’s

sock was not concealment)), reasoning that all illegal substances would be required to be carried

in plain sight to avoid a sometimes more severe crime similar to obstructing justice. M.F., 315 Ill.

App. 3d at 649. The Second District’s conclusion seems to ignore the fact that obstructing justice

has a mens rea requirement, separate and distinct from merely having contraband in your pocket.

Carrying an object is not necessarily concealing it to avoid apprehension or to thwart law

enforcement.

¶ 42 Despite flaws in M.F.’s reasoning and its self-imposed limitation to its particular

facts, the Comage court relied upon M.F. in concluding section 31-4, the obstructing justice statute

(720 ILCS 5/31-4(a) (West 2006)), requires proof the defendant’s actions of separating himself

from the contraband “actually interferes with the administration of justice.” (Emphasis in original.)

Comage, 241 Ill. 2d at 149. In broadening this conclusion, Comage also looked at People v. Brake,

- 15 - 336 Ill. App. 3d 464, 783 N.E.2d 1084 (2003) (where obstructing justice was found when the

defendant swallowed a bag of drugs despite the officer’s attempt to stop him) and surmised that

what compelled the decision in Brake and in similar “concealment” cases was not that the drugs

were out of sight of the police officer, but that the “defendant had, in fact, materially impeded the

officer’s investigation.” Comage, 241 Ill. 2d at 149. The Comage court ultimately held:

“we have no disagreement with the proposition that a defendant who places

evidence out of sight during an arrest or pursuit has ‘concealed’ the evidence for

purposes of the obstructing justice statute if, in doing so, the defendant actually

interferes with the administration of justice, i.e., materially impedes the police

officers’ investigation.” Comage, 241 Ill. 2d at 150.

¶ 43 The problem with Comage, though, is the new material-impediment element

depends less on the defendant’s conduct or intent and more on law enforcement’s vision. In other

words, whether a defendant’s actions “materially impede” an arrest or investigation is based less

on the actions or intent of a defendant, than on the experience, inexperience, or fortuitous

circumstances of the investigating officer. As Justice Thomas aptly noted in his dissent in Comage:

“Looking at whether the evidence was actually recovered—or at how easily it was

recovered—improperly shifts the statutory inquiry away from its rightful focus on

defendant’s actions at the time of the crime onto how quickly and competently

police reacted to defendant’s actions after the concealment had been completed.”

Comage, 241 Ill. 2d at 158-159 (Thomas, J., dissenting).

¶ 44 Before moving on, I must point out here that at least the Comage court continued

to connect the act of concealment with “an arrest or pursuit”—something we do not have here. In

- 16 - our case, defendant was not confronted by police until after he left the scene and after he

concealed, unobserved by police, the drugs. Had he not admitted hiding them and where they were

located, they may have never been discovered. From all appearances, that constitutes an act of

concealment with a clear intent to materially impede his prosecution.

¶ 45 Given the legislature’s failure to address the judicial changes to the obstructing

justice statute, our supreme court eventually doubled down on their interpretation in Casler, 2020

IL 125117, ¶ 41 (“Construed together, Comage and Baskerville firmly establish that a defendant’s

acts must be a material impediment and must be proved in a prosecution for obstructing justice.”).

In Casler, and earlier in People v. Baskerville, 2012 IL 111056, ¶ 39, 963 N.E.2d 898, the supreme

court again found “material impediment” to be intended within the definition of not only

obstructing justice but also obstructing a peace officer (720 ILCS 5/31-1(a) (West 2006)), as it

applied to the furnishing of false information. The court explained its holding in the earlier cases

was not intended to be limited to the concealment clause found in section 31-4(a)(1). Justice

Karmeier’s dissent in Casler accurately noted the distinction I believe exists in this present case

when he identified what he considered the narrow holding of Comage. He discussed how the

majority adopted the defendant’s view that “ ‘because both the existence and location of the

evidence were fully known to the officers[,] the evidence was not concealed’ ” when it concluded

the defendant had not “concealed” the contraband in question. Casler, 2020 IL 125117, ¶ 93

(Karmeier, J., dissenting) (quoting Comage, 241 Ill. 2d at 144-45). As a result, the court’s

additional language adding the element of “material impediment” was, in his view, “merely dicta,

entirely unnecessary after the determination that there was no concealment.” Casler, 2020 IL

- 17 - 125117, ¶ 93 (Karmeier, J., dissenting). Though I agree completely with Justice Karmeier, I can

acknowledge this view is entrenched as the minority viewpoint going forward.

¶ 46 The cases relied on by Comage and by M.F., where the State could not prove the

element of concealment, consist of police observing the defendant tossing an item and then

retrieving it shortly thereafter. This amounts to mere abandonment, not concealment. That is not

what happened here.

¶ 47 Here, defendant successfully completed the act of concealment before being

confronted by the police. It was only after his admission that they were drawn to the location of

the contraband. Surely, we are not to the point where, as long as a defendant readily admits his

commission of the offense, he can no longer be prosecuted for it, since his admission resulted in

his speedy apprehension and no “material impediment” to the investigation. What happened to the

mens rea for obstruction by concealment, and was not the actus reus complete when he hid the

drugs before being confronted by the police?

¶ 48 Though these facts differ from the Comage cases, the broad rule still applies.

Indeed, what began as an effort to define “conceal” under the plain meaning of the statute has

morphed into the “judicial grafting” Justice Karmeier referenced in his Casler dissent—adding an

extra element of “materially impeding” to the offense of obstruction of justice which the state must

now prove, although it exists nowhere in the statute. Casler, 2020 IL 125117, ¶ 91 (Karmeier, J.,

dissenting).

¶ 49 Because the legislature has not seen fit to address this issue since Comage, under

the principle of legislative acquiescence, we must follow the law as it now stands. For these

reasons, I specially concur.

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