2015 IL App (1st) 130991
FIRST DIVISION June 8, 2015
No. 1-13-0991
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 3038 ) JAMES EVANS, ) Honorable ) Lawrence Edward Flood, Defendant-Appellant. ) Judge Presiding.
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Delort and Justice Cunningham concurred in the judgment and opinion.
OPINION
¶1 The circuit court found defendant, James Evans, guilty after a bench trial of possession of
cannabis and sentenced him to 12 months' probation. 720 ILCS 550/4(d) (West 2010).
Defendant raises three issues for our review: (1) whether the State presented sufficient evidence
to sustain his conviction for possession of cannabis; (2) whether defendant received the effective
assistance of trial counsel where his counsel did not file a motion to suppress the cannabis
recovered during his arrest; and (3) whether the circuit court failed to apply a credit for the time
he served in presentence custody against the various fines imposed on him.
¶2 We hold the State presented sufficient evidence to sustain his conviction for possession
of cannabis. We decline to review defendant's claim of ineffective assistance of counsel based
on the record before us, but note that defendant may still pursue his claim under the
Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2010)). The State concedes, No. 1-13-0991
and we agree, that defendant is entitled to a $5 credit per day for the time he spent in presentence
custody. 725 ILCS 5/110-14 (West 2010). Accordingly, we reduce the total monetary
judgment against defendant by $10 based on the two days defendant spent in presentence
custody.
¶3 JURISDICTION
¶4 The circuit court sentenced defendant on February 11, 2013. Defendant timely filed his
notice of appeal on March 6, 2013. Accordingly, this court has jurisdiction pursuant to article VI,
section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing
appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970,
art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).
¶5 BACKGROUND
¶6 The State charged defendant by information with one count of possession of cannabis
between 30 and 500 grams in connection with the events that led to defendant's arrest on
February 4, 2011. 720 ILCS 550/4(d) (West 2010). On that date, the Chicago police
department executed a search warrant at 12534 South Bishop Street, in Chicago, Illinois.
¶7 Officer David Guzman of the Chicago police department testified he was part of a team
of approximately eight other officers executing a search warrant at 12534 South Bishop Street.
He described the dwelling as a "ranch *** single family residence on a slab." He could not,
however, recall the name of the person who was the target of the search warrant. Officer
Guzman and the team of officers gained entry into the house through the front door, which was
unlocked. Upon entering the home, the officers found themselves in the living room. Officer
Guzman announced both his office and their search warrant. He wore civilian clothes
underneath a police department raid vest. His star vestibule was visible on his belt. The other
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officers present were dressed in a similar manner. He instructed the occupants of the home to
stay where they were so he could see their hands and to not make any movements. He
estimated that approximately two adult males, two adult females, and two young children were
present at the house.
¶8 Officer Guzman explained how he first encountered defendant, and defendant's actions,
in the following exchange:
"Q. What did defendant do?
A. The defendant was observed in the rear bedroom of the
location. He was instructed to show his hands and to step
towards myself.
Q. Did he do that?
A. Yes. He did that after throwing an item and closing the
door to the location.
Q. Did you see what the item was?
A. Yes. The item was a tan plastic bag, such as a Jewel[]
bag.
Q. So is it fair to say that the defendant did not remain where
he was as you ordered?
A. Yes.
Q. So what did you do? Where did you go?
A. I immediately detained [defendant].
***
Q. And what did you do then?
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A. I turned the defendant over to the affiant of the warrant,
Officer Matthew[s].
Q. And then, what did you do?
A. I went into the same bedroom that the defendant was
located. I secured that bedroom and I recovered the - -
Q. Let me stop you. When you saw the defendant throw
the plastic bag, where did he throw it?
A. He threw it to the ground.
Q. Where was he standing?
A. In the bedroom.
Q. And did you then retrieve the defendant from that room?
Q. Is it at that point that you handed him over to Officer
Matthews?
Q. Did you return to that same bedroom?
Q. What did you do there?
A. I recovered the same tan bag.
Q. Were there other tan plastic bags in that room?
A. No. "
¶9 Officer Guzman later testified that the tan bag was in defendant's hand, and he saw him
throw it while defendant was in the bedroom. Officer Guzman had directed defendant to come
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out of the bedroom. As defendant exited the bedroom, defendant threw the tan plastic bag to
the ground, and then closed the door behind him. Upon checking the contents of the plastic
bag, Officer Guzman found six smaller bags containing what he suspected to be cannabis.
Officer Guzman initially described the six smaller bags as "narcotic bags," but later testified he
could not recall the type of bags he found inside the tan plastic bag. After showing Office
Matthews the contents of the bag, Officer Guzman continued to search the bedroom and found a
scale.
¶ 10 On cross-examination, Officer Guzman testified that the subject of the search warrant
was Cokey Terrell Sweet, not defendant, and they were looking for ecstasy and "DMA." 1 The
residence had approximately four bedrooms. When Officer Guzman first entered the house,
four individuals were in the living room, including a senior citizen and a woman he believed was
named Jamie Granberry. A woman named Jarah Granberry was also present. Officer Guzman
could not recall if he was the first officer through the front door of the house, but he did
remember that he was "one of the first" officers to enter the residence. Officer Guzman did not
see defendant right away when he entered the apartment. He explained that he entered through
the front door, passed through the living room, the kitchen, and a utility area before arriving in
the rear bedroom. Defendant did not try to flee from him. The plastic bag he recovered was
not submitted for fingerprint analysis. He could not recall if defendant made any statements to
him indicating that the bag contained cannabis.
¶ 11 On redirect examination, Officer Guzman testified he had seen similar bags prior to this
occasion. He clarified that he saw "six bundles of clear plastic bags. I don’t recall exactly if
the packaging that contained the cannabis were Ziploc or sandwich bags or freezer bags. ***
1 Officer Guzman did not define DMA.
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[B]ecause they were clear plastic, I could see what the contents were in the bag." He did not
remove the bags individually to examine them. He estimated the time frame from his entry into
the house until he first saw defendant as "[a]pproximately less than a minute."
¶ 12 Chicago police officer Tamara Matthews testified she was part of the team executing the
search warrant at 12534 South Bishop Street. When she entered the residence, she proceeded to
an open area near the bedroom where she saw Officer Guzman. Officer Guzman instructed her
to detain defendant while Officer Guzman walked into the bedroom. The door to the bedroom
was closed, so Officer Guzman opened the door. She saw Officer Guzman retrieve a tan plastic
bag from the floor. He looked inside the bag and walked toward Officer Matthews with a bag
in his hand which contained cannabis. Officer Guzman then retrieved small square bags, which
Officer Matthews knew from experience is used to package narcotics for distribution. Officer
Guzman also recovered a scale from the floor of the bedroom. Officer Matthews searched the
bedroom and found evidence which listed defendant's name and his address as 12534 South
Bishop Street, including: an Illinois State Police citation; an Illinois identification card; a firearm
owner's identification card; and an Illinois driver's license. On cross-examination, Officer
Matthews denied that she recovered "the ID['s]" out of defendant's wallet.
¶ 13 The parties stipulated that the police maintained a proper chain of custody over the six
bags the police recovered from the scene. The parties further stipulated that the police tested
two of the six bags, which contained 51.9 grams of cannabis. The total weight of all of the
substance in the bags was 155.7 grams.
¶ 14 The circuit court denied defendant's motion for a directed verdict.
¶ 15 Jamie Granberry, defendant's sister, testified she lives with her father, her sister, her
sister's children, and her own children, at 12534 South Bishop Street. Defendant, however,
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lived with his fiancée in Blue Island, Illinois. On the day of the incident, defendant went to her
house to help shovel snow. When he arrived at 8 a.m., he came inside to say hello before going
outside to shovel snow. At 10 a.m., defendant came inside and "stretched out on the couch"
because he was tired from shoveling snow. Defendant, Granberry, and her father then sat
around talking in the living room. At noon, the police "kicked right through the door."
Defendant remained sitting on the couch. She did not see him holding a tan bag of cannabis.
Her sister, Jarah, lives in the back bedroom. She testified that defendant moved out of the
house "six or seven" years earlier, but explained that the home at 12534 South Bishop Street is
the family house and the house where defendant grew up. When defendant moved out, he took
all of his belongings and he did not pay bills from there.
¶ 16 Defendant testified that on February 4, 2011, he lived in Blue Island, Illinois, with his
fiancée and three kids. He did not change his address on his driver's license because he "was
still going to school and a lot of important information was still being retrieved at my address
that I had used for years." On the day of the incident, he went to the family home on South
Bishop Street around 8 a.m. to help shovel snow after a blizzard. After shoveling snow, he
came back inside and sat on the couch in the living room. At noon, the police kicked the door
of the house down. Defendant, his sister Jamie, Jamie's kids, and his father were sitting in the
front of the house. Antoine Sweet, his sister's boyfriend, was in the back of the house.
Defendant testified he "cooperated" with the police but then became upset and "began lashing
out" at the police. The police responded by putting defendant in handcuffs. Defendant
testified that the police first secured the front of the house before heading toward the back of the
house. He estimated it took the police "between thirty and forty-five minutes" to find the
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cannabis. Defendant testified that he had never seen the cannabis before and that the police
retrieved his identification from his wallet out of his pocket.
¶ 17 On cross-examination, defendant testified that he had been out of the family house "a
little over six years." He clarified that when the police returned from the back of the house,
they were "dangling the bag" of cannabis. He did not know where they got the bag because he
was in the front of the house. When asked why his Illinois State identification card, which was
issued on April 23, 2010, still listed the South Bishop Street address as his residence, he
answered he "never changed it. It’s the same one that I got issued prior. It was actually a
renewal that was expired." He kept the South Bishop Street address as his mailing address.
He agreed that he was issued a new driver's license on November 10, 2010, with South Bishop
Street as his address despite not living there. He also admitted that he received a traffic citation
on January 1, 2010, which listed his address as South Bishop Street. He also admitted his
firearm owner's identification card lists the home on South Bishop Street as his address.
¶ 18 After closing arguments, the circuit court found defendant guilty of possession of
cannabis. The court noted that both police officers testified consistently. The court described
the State's account of the possession and recovery of the cannabis as "clear," but found defendant
and his sister incredible.
¶ 19 Defendant filed a motion for a new trial, which the circuit court denied. On February
11, 2013, the circuit court sentenced defendant to 12 months' probation. The circuit court
awarded defendant two days' credit for time served in presentence custody and assessed
defendant $1,189 for various fines and costs. On March 6, 2013, defendant appealed.
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¶ 20 ANALYSIS
¶ 21 Before this court, defendant challenges the sufficiency of the evidence used against him,
argues that he received the ineffective assistance of trial counsel, and contends that he is entitled
to reduce the fines imposed against him by the credit he received for the time he served in
presentence custody.
¶ 22 Sufficiency of the Evidence
¶ 23 Defendant first argues that the State failed to prove beyond a reasonable doubt that he
possessed the cannabis at issue because his finding of guilt was based on the uncorroborated
testimony of a single police officer, Officer Guzman. According to defendant, Officer
Guzman's testimony was highly improbable, incredible, and contrary to human experience.
Defendant questions Officer Guzman's ability to enter through the front door of the residence,
announce his office, and make his way to the back of the house to see defendant drop the plastic
bag. Defendant also points out that he did not live at the address where the cannabis was found
and the search warrant named another individual. Defendant argues throughout his brief that
Officer Guzman saw defendant "drop" the bag that contained the cannabis later found by Officer
Guzman. The State responds that the evidence it presented proved beyond a reasonable doubt
that defendant possessed the cannabis found by the police.
¶ 24 The due process clause of the fourteenth amendment to the United States Constitution
ensures that an accused defendant is not convicted of a crime "except upon proof beyond a
reasonable doubt of every fact necessary to constitute the crime with which he is charged." In
re Winship, 397 U.S. 358, 364 (1970); People v. Carpenter, 228 Ill. 2d 250, 264 (2008). It is
not, however, the function of this court to retry a defendant when reviewing whether the
evidence at trial was sufficient to sustain a conviction. People v. Hall, 194 Ill. 2d 305, 329-30
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(2000). Rather, our review is focused on "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 offense beyond a reasonable doubt." People v. Baskerville, 2012 IL 111056, ¶ 31. "The
requirement that a defendant's guilt be proved beyond a reasonable doubt does not mean that
inferences flowing from the evidence should be disregarded." People v. Schmalz, 194 Ill. 2d
75, 81 (2000).
¶ 25 The trier of fact is responsible for determining a witness's credibility and the weight to be
given to a witness's testimony, as well as drawing any reasonable inferences from the evidence.
People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Therefore, we will not substitute our judgment
for that of the trier of fact when considering such matters. People v. Brown, 2013 IL 114196,
¶ 48. The findings of the trier of fact are given great weight because it saw and heard the
witnesses. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007). Although the trier of fact is
accorded great deference, its decision is not binding or conclusive. Id. at 115. Reversal of a
conviction is necessary "where the evidence is so unreasonable, improbable, or unsatisfactory as
to justify a reasonable doubt of defendant's guilt." People v. Ortiz, 196 Ill. 2d 236, 259 (2001).
¶ 26 In order to find defendant guilty of possession of cannabis, the State had to prove beyond
a reasonable doubt that defendant knowingly possessed the cannabis found by the police. 720
ILCS 550/4 (West 2010). Where, as in this case, a defendant is found to possess more than 30
grams of any substance containing cannabis, but less than 500 grams, and it is the defendant's
first offense, it is a Class 4 felony. 720 ILCS 550/4(d) (West 2010). The element of
possession may be shown by actual possession or constructive possession. People v. Givens,
237 Ill. 2d 311, 335 (2010). Actual possession, however, is not shown by mere proximity to the
illicit material. Schmalz, 194 Ill. 2d at 81. "Actual possession is the exercise by the defendant
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of present personal dominion over the illicit material and exists when a person exercises
immediate and exclusive dominion or control over the illicit material, but does not require
present personal touching of the illicit material." Givens, 237 Ill. 2d at 335. "Where
possession has been shown, an inference of guilty knowledge can be drawn from the surrounding
facts and circumstances." Schmalz, 194 Ill. 2d at 82. This court has held that "[t]he act of
dominion may be that defendant had the contraband on his person, that he tried to conceal it, or
that he was seen throwing it away." People v. Ray, 232 Ill. App. 3d 459, 461 (1992). It is the
role of the trier of fact to determine the factual question of knowledge and possession or control.
Schmalz, 194 Ill. 2d at 81. Circumstantial evidence may be used to satisfy the elements of
possession. People v. Eghan, 344 Ill. App. 3d 301, 307 (2003).
¶ 27 After viewing the evidence in the light most favorable to the State, we hold that a rational
trier of fact could have found that defendant possessed the cannabis recovered by the police in
this case. Specifically, Officer Guzman testified that he instructed defendant to show his hands
and to come forward. Officer Guzman testified that defendant complied, but only "after
throwing an item and closing the door" to the bedroom. That item was the plastic bag, which
Officer Guzman subsequently recovered and found the cannabis at issue here. The plastic bag
was the only one in the room where Officer Guzman found it. He later testified that he saw the
bag in defendant's hand. Officer Guzman estimated that it took "[a]pproximately less than a
minute" for him to enter the house before he encountered defendant. The act of possession is
shown when a person exercises dominion over illicit material. Givens, 237 Ill. 2d at 335. This
court has held that "[t]he act of dominion may be that defendant had the contraband on his
person, that he tried to conceal it, or that he was seen throwing it away." Ray, 232 Ill. App. 3d
at 461. Accordingly, the State in this case showed that defendant had possession of the
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cannabis through Officer Guzman's testimony that he witnessed defendant throwing a bag
containing cannabis from his hand.
¶ 28 Furthermore, "[w]here possession has been shown, an inference of guilty knowledge can
be drawn from the surrounding facts and circumstances." Schmalz, 194 Ill. 2d at 82. The facts
and circumstances of this case are that defendant threw the bag and shut the door before
complying with Officer Guzman's instructions to show his hands and to step toward him. The
reasonable inference flowing from these facts and circumstances is that defendant disposed of
the bag containing the cannabis, by throwing it, when he saw Officer Guzman and heard his
instructions.
¶ 29 We note that throughout defendant's brief, he refers to the State's evidence as showing
that he dropped the plastic bag. We disagree with defendant's characterization of the facts of
this case because Officer Guzman clearly testified that defendant threw the bag, as opposed to
dropping it, and that defendant only complied with his orders after throwing the bag and shutting
the door. Officer Guzman testified, during the State's direct examination, as follows:
door to the location." (Emphasis added.)
¶ 30 We find this distinction important because dropping a bag in response to a police
instruction is much different than what defendant did here, which was to wait to comply with a
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police instruction until after he threw a bag into a room and shut the door. The act of dropping
is more of a passive action while the act of throwing is an affirmative move to distance an object
from oneself. Applied to the facts here, it gives rise to the inference that defendant attempted to
distance himself from the bag containing the cannabis by throwing it into a room and shutting the
door to that room. Accordingly, we hold that State presented sufficient evidence to sustain
defendant's conviction for possession of cannabis.
¶ 31 Ineffective Assistance of Counsel
¶ 32 Defendant next argues he was deprived of the effective assistance of counsel because his
counsel failed to file a motion to suppress the cannabis the police seized because the police did
not have probable cause to search the plastic bag containing the cannabis, he did not abandon the
bag because he acted in response to a directive from Officer Guzman, and because the cannabis
was not in plain view. In response, the State argues that a motion to suppress would have been
futile because the police had probable cause to search the bag containing cannabis and because
defendant abandoned the bag.
¶ 33 A criminal defendant's right to the effective assistance of counsel is a constitutional right
reviewed pursuant to the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), as
adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). People v.
Domagala, 2013 IL 113688, ¶ 36. To demonstrate ineffective assistance of counsel, a
defendant must show that his counsel's performance was deficient and that he was prejudiced by
the deficient performance of his counsel. Id. Failed strategic decisions do not establish the
ineffectiveness of counsel. People v. Fuller, 205 Ill. 2d 308, 331 (2002). "In order to
establish prejudice resulting from failure to file a motion to suppress, a defendant must show a
reasonable probability that: (1) the motion would have been granted, and (2) the outcome of the
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trial would have been different had the evidence been suppressed." People v. Patterson, 217 Ill.
2d 407, 438 (2005). This court, however, has held that where a defendant's claim of ineffective
assistance of counsel requires consideration of matters outside of the record, such a claim is more
appropriately addressed on collateral review. People v. Kunze, 193 Ill. App. 3d 708, 725-26
(1990). This allows a better record to be developed and the attorney-client privilege does not
apply. Id. at 726.
¶ 34 After reviewing the record here, we decline to consider defendant's claim of ineffective
assistance of trial counsel because the record is devoid of evidence that would allow this court to
adjudicate whether trial counsel's decision to not file a motion to suppress was strategic, whether
the motion would have been granted, or whether Officer Guzman acted lawfully under the
circumstances. In People v. Durgan, the Fourth District of this court declined to review a
defendant's claim of ineffective assistance of counsel based on similar circumstances, i.e., trial
counsel's failure to file a motion to suppress evidence from the defendant's arrest. People v.
Durgan, 346 Ill. App. 3d 1121, 1141-43 (2004). The Durgan court made note of an important
distinction between the State's actions attacking a motion to suppress and its actions at trial. Id.
at 1142-43. Specifically, the court reasoned:
"[W]hether defendant suffered prejudice for his trial counsel's
failure to move to suppress evidence arising from defendant's
arrest depends on the likelihood of the motion's success.
However, the record is devoid of factual findings on the issues
pertinent to defendant's claim. Because the record contains
nothing to review with respect to the appropriateness of the police
officers' actions surrounding defendant's arrest, we decline to
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consider defendant's argument. In so doing, we note that the
argument defendant makes is almost never appropriate on direct
appeal because absent a motion to suppress, it is highly unlikely
that the State would garner its resources to prove the propriety of
the officers' actions. Thus, in such cases, we cannot be certain
that the record contains all of the evidence that could have been
presented on the issue." Id.
We agree with the above reasoning and decline to review defendant's claim of ineffective
assistance of counsel. Although we decline to review defendant's claim here, we note that
defendant may, if he so chooses, raise his claim of ineffective assistance of counsel based on his
trial counsel's failure to file a motion to suppress the cannabis at issue here in a proceeding under
the Post-Conviction Hearing Act. See 725 ILCS 5/122-1 to 122-7 (West 2010).
¶ 35 Credit For Time Served
¶ 36 Defendant's final claim of error is that the circuit court failed to apply a credit for the
amount of time he served in presentence custody against the fines the court imposed on him.
Defendant argues that his two days in presentence custody entitle him to $10 of credit to be
applied against his fines totaling $1,189. 725 ILCS 5/110-14 (West 2012). He asks that this
court modify the monetary judgment against him to reduce his fines and fees to a total of $1,179.
The State agrees with defendant. We agree with the parties and modify the monetary judgment
to reflect fines totaling $1,179.
¶ 37 CONCLUSION
¶ 38 The judgment of the circuit court of Cook County is affirmed as modified.
¶ 39 Affirmed as modified.
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