People v. Farley

2021 IL App (3d) 190735-U

• Court: Appellate Court of Illinois
• Decided: September 7, 2021
• Docket: 3-19-0735
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2021 IL App (3d) 190735-U

Order filed September 7, 2021 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois. Plaintiff-Appellee, ) ) Appeal No. 3-19-0735 v. ) Circuit No. 18-CF-63 ) AARON E. FARLEY, ) ) Honorable Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court. Justices Daugherity and Wright concurred in the judgment.

ORDER

¶1 Held: (1) Evidence at trial was sufficient to allow a reasonable trier of fact to find defendant guilty beyond a reasonable doubt; (2) the State did not commit reversible plain error in its opening statement or closing arguments; and (3) defendant is precluded from raising an argument relating to the amendment of the indictment.

¶2 Defendant, Aaron E. Farley, appeals following his conviction for unlawful delivery of a

controlled substance. He argues that the evidence introduced by the State at his trial was

insufficient to demonstrate beyond a reasonable doubt his commission of that offense on an

accountability theory. Defendant also argues that the State committed reversible plain error in its opening and closing comments. Finally, defendant asserts that the State made a material

amendment to the indictment, such that its failure to return the indictment to the grand jury

constitutes reversible plain error. We affirm.

¶3 I. BACKGROUND

¶4 The State charged defendant with a single count of unlawful delivery of a controlled

substance (720 ILCS 570/401(d) (West 2016)). The indictment alleged that defendant delivered

“less than 50 grams of a substance containing Psilocybin, commonly known as mushrooms, a

controlled substance, other than as authorized in the Controlled Substances Act.” The matter

proceeded to a jury trial.

¶5 Prior to jury selection, the State requested an amendment to the face of the indictment,

changing “psilocybin” to “psilocyn.” Defense counsel explicitly declined to object, and the court

allowed the amendment.

¶6 In its opening statement at trial, the prosecutor explained the function of the Kankakee

Area Metropolitan Enforcement Group (KAMEG). He asserted: “It is their responsibility to get

gangs, guns and drugs off the street and they do it very well.”

¶7 Clayt Wolfe of KAMEG testified he frequently worked with confidential sources. In May

2017, the drug task force in Livingston County contacted KAMEG, advising that one of its sources,

Zack, could provide information and an introduction to purchase narcotics in Kankakee County.

Zack was working for consideration, relaying information in exchange for either sentencing

leniency or dropped charges.

¶8 Wolfe met with Zack. The target of the investigation would be defendant. As Wolfe looked

on, Zack arranged a meeting with defendant via text message. In the text messages, introduced

into evidence, Zack requests that the other person meet him in Herscher. The other person agrees,

2 and the parties decide to meet at a gas station. In the final text message, the other person invites

Zack to “jump in the back” of the orange car. The messages contain no reference to narcotics.

¶9 Wolfe and Zack drove together to Herscher. Upon arriving at the gas station, Wolfe

identified the orange car and approached it on foot with Zack alongside. Wolfe observed that

defendant was sitting in the front passenger seat, Daniel Hines was sitting in the driver’s seat, and

Samantha Schmelor was sitting in the back middle seat. Wolfe entered the car, sitting in the

backseat directly behind defendant.

¶ 10 Wolfe noticed a bag in Schmelor’s lap, which he suspected contained the mushrooms that

he was attempting to purchase. Wolfe grabbed the bag from Schmelor’s lap, then handed her $70.

Wolfe testified that Schmelor “directly said here, Aaron and handed—she handed the money to

him in the front passenger’s seat.”

¶ 11 The prosecutor then asked Wolfe what happened after the transaction was completed.

Wolfe responded: “We just had a general conversation. I asked—I inquired about their sales of the

Psilocybin mushrooms. If this was the usual amount they sold, if they could get more, if they sold

any other type of narcotics, which they said they could get basically whatever I wanted ***.” When

asked who, specifically, said they could get Wolfe whatever narcotics he wanted, Wolfe responded

that it was “[defendant] in the front passenger seat and also [Hines] in the front driver’s seat.”

¶ 12 Wolfe then exited the car. He testified: “I approached the front passenger seat and spoke

to [defendant] *** and I said, hey, are you the one that I was talking to basically—who we were

talking to through the text messages. I shook his hand and we said our goodbyes.”

¶ 13 Wolfe was equipped with recording equipment throughout the transaction. The resulting

video was played in open court. The video corroborated Wolfe’s account of the events in question.

The video shows defendant talking to Wolfe regarding the amounts of mushrooms sold. Defendant

3 tells Wolfe that they can get him “just about anything you need.” After Wolfe exits the car, he

approaches defendant at the passenger’s window and asks, “You’re Aaron, the one I was talking

to?” Defendant repeatedly responds in the affirmative.

¶ 14 On cross-examination, Wolfe agreed that the text messages did not contain defendant’s

name. He further agreed that no one involved in the investigation “had any way of knowing”

whether it was defendant who sent the messages, as opposed to Hines or Schmelor.

¶ 15 Allen Greep of the Illinois State Police Division of Forensic Sciences testified that his

testing determined that the 10.1 grams of mushroom material procured by Wolfe contained

psilocyn.

¶ 16 In closing argument, the prosecutor emphasized that defendant was “in charge” of the

transaction, rather than Schmelor. He urged that Schmelor gave the money to defendant

immediately because the money belonged to defendant. The prosecutor further pointed out that

defendant and Hines told defendant they could obtain more narcotics. He argued that defendant

was “pulling the strings” and that Schmelor was acting at his behest. He added that the mushrooms

“came from the defendant.” Finally, the prosecutor noted that “[Wolfe] testified credibly. He was

not impeached in any way.”

¶ 17 The jury found defendant guilty, and the court sentenced him to a term of eight years’

imprisonment. This appeal follows.

¶ 18 II. ANALYSIS

¶ 19 Defendant raises three arguments on appeal. First, he contends that the evidence introduced

by the State was insufficient to sustain a conviction for unlawful delivery of a controlled substance.

Second, he argues that the State committed prosecutorial misconduct in improperly vouching for

the credibility of a witness and misstating the evidence. Finally, defendant contends that the State’s

4 amendment to the indictment materially altered the charge, such that a return of that instrument to

the grand jury was required. We address each argument in turn.

¶ 20 A. Sufficiency of the Evidence

¶ 21 When a challenge is made to the sufficiency of the evidence at trial, we review to determine

whether 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 (1985). In making this determination, we

review the evidence in the light most favorable to the prosecution. People v. Baskerville, 2012 IL

111056, ¶ 31. It is not the purpose of a reviewing court to retry a defendant. People v. Milka, 211

Ill. 2d 150, 178 (2004). Instead, great deference is given to the trier of fact. See, e.g., People v.

Saxon, 374 Ill. App. 3d 409, 416-17 (2007). All reasonable inferences from the record in favor of

the prosecution will be allowed. People v. Bush, 214 Ill. 2d 318, 326 (2005).

¶ 22 As charged in this case, a person commits unlawful delivery of a controlled substance

where he knowingly delivers a schedule I or II controlled substance. 720 ILCS 570/401(d) (West

2016). Defendant tacitly concedes that the State proved beyond a reasonable doubt that unlawful

delivery of a controlled substance was committed. He argues that the State’s evidence merely

demonstrated that Schmelor committed that offense, and that the evidence was insufficient to

prove that defendant was legally accountable for Schmelor’s act.

¶ 23 A person is legally accountable for the criminal acts of another when, “either before or

during the commission of an offense, and with the intent to promote or facilitate that commission,

he or she solicits, aids, abets, agrees, or attempts to aid that other person in the planning or

commission of the offense.” 720 ILCS 5/5-2(c) (West 2016). The accountability statute also

provides that “[m]ere presence at the scene of a crime does not render a person accountable for an

5 offense; a person’s presence at the scene of a crime, however, may be considered with other

circumstances by the trier of fact when determining accountability.” Id.

¶ 24 In the present case, a rational trier of fact could have reasonably concluded beyond a

reasonable doubt that defendant aided and abetted Schmelor’s delivery of the mushrooms with the

intent of facilitating that offense. Contrary to his argument on appeal, defendant was not “merely

an innocent bystander” at the drug transaction. Defendant confirmed to Wolfe that he had been the

person sending the text messages to Zack to arrange the transaction. To be sure, the text messages

between Zack and defendant did not make explicit reference to drugs or a drug transaction.

Nevertheless, the evidence showed that defendant arranged a meeting at which a drug transaction

commenced. As Wolfe did not overtly request drugs when he was in the car, the inescapable

inference is that the drug transaction was implicit in the text message conversation. Additionally,

defendant’s comment that Wolfe could be provided with “just about anything [he] need[s]” tends

to undermine defendant’s “innocent bystander” theory.

¶ 25 Defendant argues that the text messages are “immaterial in the accountability analysis”

because Wolfe testified that no one involved in the investigation “had any way of knowing”

whether it was defendant who sent the messages, as opposed to Hines or Schmelor. However, the

record makes clear that this line of testimony from Wolfe was referring to investigators’

knowledge at the time the text messages were being sent. Wolfe testified that he explicitly asked

defendant if he had been the person sending the text messages. Wolfe testified, and the video

evidence confirmed, that defendant said “Yes.” It was thus irrefutably established that defendant

sent the text messages.

¶ 26 Furthermore, a rational trier of fact could infer defendant’s role in the transaction from the

fact that Schmelor immediately gave him Wolfe’s money. As the acquisition of money is, at least

6 from the seller’s perspective, the very purpose of a drug transaction, it may be reasonably be

inferred that the person who ultimately receives the money is a participant in the transaction. To

this point, defendant argues that it was equally possible that Schmelor simply gave defendant the

money because she owed him money for reasons unrelated to the drug transaction. The trier of fact

is not obligated to seek out and accept any possible explanation of the evidence compatible with a

defendant’s innocence; nor are they required to disregard reasonable inferences that do flow from

the evidence. Saxon, 374 Ill. App. 3d at 416-17. Especially in light of the evidence that defendant

arranged the drug transaction, it is reasonable to infer that Schmelor delivered the money to

defendant as a part of that transaction.

¶ 27 In short, a rational trier of fact could conclude beyond a reasonable doubt that defendant

aided Schmelor’s delivery of the narcotics with the intent to facilitate the commission of the

offense. Accordingly, we find that the evidence presented by the State was sufficient to sustain a

conviction for unlawful delivery of a controlled substance.

¶ 28 B. Prosecutorial Misconduct

¶ 29 Defendant argues that the State committed prosecutorial misconduct in both its opening

statement and its closing argument. First, he contends that the prosecutor improperly vouched for

the credibility of witnesses when he commented in his opening statement that “[i]t is [KAMEG’s]

responsibility to get gangs, guns and drugs off the street and they do it very well.” Defendant

contends that the prosecutor engaged in improper vouching again in closing when he asserted that

Wolfe “testified credibly.” Finally, defendant argues that the prosecutor’s summation of the

evidence, which presented a theory that defendant was in charge or in control of the transaction

(see supra ¶ 16) amounted to a misrepresentation of the evidence.

7 ¶ 30 Defendant concedes that he has failed to preserve each of the above claims for review.

Accordingly, he requests that this court review those matters under the plain-error doctrine. A

defendant seeking relief under the plain-error doctrine has the burden of demonstrating that a clear,

obvious, or plain error occurred at trial, as well as the burden of showing that the error was

prejudicial, such that he is entitled to relief. People v. Hillier, 237 Ill. 2d 539, 545 (2010). We

begin by determining which, if any, of defendant’s claims rise to the level of clear or obvious error.

¶ 31 1. Vouching

¶ 32 It is well-settled that “prosecutors are not permitted to vouch for the credibility of a

government witness.” People v. Williams, 2015 IL App (1st) 122745, ¶ 12. The United States

Supreme Court has explained the rationale for the prohibition on vouching as follows:

“The prosecutor’s vouching for the credibility of witnesses and expressing

his personal opinion concerning the guilt of the accused pose two dangers:

such comments can convey the impression that evidence not presented to

the jury, but known to the prosecutor, supports the charges against the

defendant and can thus jeopardize the defendant’s right to be tried solely on

the basis of the evidence presented to the jury; and the prosecutor’s opinion

carries with it the imprimatur of the Government and may induce the jury

to trust the Government’s judgment rather than its own view of the

evidence.” United States v. Young, 470 U.S. 1, 18-19 (1985).

¶ 33 Initially, the prosecutor’s comment that “[i]t is [KAMEG’s] responsibility to get gangs,

guns and drugs off the street and they do it very well,” was not a vouch for the credibility of any

testifying KAMEG agent. KAMEG’s effectiveness at getting gangs, guns, and drugs off the street

8 has no bearing, either explicitly or implicitly, on the agents’ credibility as witnesses or their

tendency to testify truthfully. Thus, the prosecutor’s comment was not error.

¶ 34 Further, we cannot conclude that the prosecutor’s assertion that Wolfe was credible was

clear or obvious error. “[C]losing arguments must be viewed in their entirety, and the challenged

remarks must be viewed in context.” People v. Wheeler, 226 Ill. 2d 92, 122 (2007). The full

statement from the prosecutor was: “[Wolfe] testified credibly. He was not impeached in any way.”

¶ 35 As the Young decision makes clear, vouching raises concerns that the prosecutor, as an

agent of the government, is urging the jury to believe a witness not based on the evidence, but

based on the prosecutor’s authoritative assertion that it should do so. Young, 470 U.S. at 18-19.

Here, however, the prosecutor did not baldly assert that Wolfe should be believed. Rather, he

argued that the lack of impeachment necessitated a finding of credibility. That is, there was no

reason, at all, to doubt the veracity of Wolfe’s testimony. “The credibility of a witness is a proper

subject for closing argument if it is based on the evidence or inferences drawn from it.” People v.

Hudson, 157 Ill. 2d 401, 445 (1993). The prosecutor in this case did not personally vouch for

Wolfe’s credibility, but simply argued, based on the evidence adduced at trial, that Wolfe’s account

should be believed. This was not error.

¶ 36 2. Misrepresentation of Evidence

¶ 37 In his closing, the prosecutor argued a theory of the case that presented defendant as the

ringleader of the drug operation. He urged that defendant provided the mushrooms and that

Schmelor was merely working on his behalf. Defendant, having argued that the evidence was

insufficient to prove guilt on an accountability theory, similarly argues that this argument was

unsupported by the evidence.

9 ¶ 38 “A prosecutor has wide latitude in making a closing argument and is permitted to comment

on the evidence and any fair, reasonable inferences it yields.” People v. Glasper, 234 Ill. 2d 173,

204 (2009). In the present case, the evidence gave rise to a fair and reasonable inference that

defendant was the primary operator of the drug transaction. Defendant admitted to Wolfe that it

was him who had planned the transaction with Zack. Defendant, not Schmelor, engaged in

conversation with Wolfe about potential future drug transactions and it was defendant who

discussed an ability to get Wolfe “just about anything you need.” Finally, defendant immediately

received the money from Schmelor at the conclusion of the transaction. See supra ¶ 26. Where

defendant received the money that Wolfe delivered in exchange for the mushrooms, it can be

reasonably inferred that it was defendant who ultimately provided those mushrooms. In sum, the

prosecutor’s theory of the case presented fair and reasonable inferences from the evidence at trial

and was therefore not error.

¶ 39 Defendant has failed to demonstrate any clear or obvious error. We therefore need not

proceed to further steps in the plain-error analysis. Instead, we honor the forfeiture of these issues.

¶ 40 C. Indictment

¶ 41 Finally, defendant contends that the State’s amendment to the indictment—changing

“psilocybin” to “psilocyn”—materially altered the charge, such that a return of that instrument to

the grand jury was required. Again, defendant concedes that he failed to preserve this claim, but

requests plain-error review. The State argues that defendant invited the error when counsel

expressly stated that she had no objection to the amendment.

¶ 42 “The rule of invited error or acquiescence is a procedural default sometimes described as

estoppel. [Citation.] Simply stated, a party cannot complain of error which that party induced the

10 court to make or to which that party consented.” In re Detention of Swope, 213 Ill. 2d 210, 217

(2004).

“To allow a defendant to use the exact ruling or action procured in the trial

court as a vehicle for reversal on appeal would offend notions of fair play

and encourage defendants to become duplicitous. [Citation.] It would also

deprive the State of the opportunity to cure the alleged defect.” People v.

Harding, 2012 IL App (2d) 101011, ¶ 17.

¶ 43 Here, counsel stated explicitly that she had no objection to the State’s amendment of the

indictment. Because defendant, via counsel, expressly agreed to proceed in this manner in the

circuit court, he is now estopped from taking exception to that procedure on appeal. See Swope,

213 Ill. 2d at 217.

¶ 44 Even if we were to not apply the doctrine of invited error, it is well-settled that when a

defect in a charging instrument is challenged for the first time on appeal, reversible error will be

found only where the defendant demonstrates prejudice in the preparation of his defense. E.g.,

People v. Cuadrado, 214 Ill. 2d 79, 88 (2005). Defendant asserts, in his reply brief, that the last-

minute amendment prevented him from preparing “a defense based on the substance change in the

indictment.” Defendant declines to offer any actual explanation as to how his defense might have

differed depending on whether he was charged with delivering psilocyn rather than psilocybin. In

short, defendant failed to demonstrate any prejudice in the preparation of his defense.

¶ 45 III. CONCLUSION

¶ 46 For the foregoing reasons, we affirm the judgment of the circuit court of Kankakee County.

¶ 47 Affirmed.