2020 IL App (1st) 181284-U No. 1-18-1284 Order filed December 3, 2020 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 17 CR 14845 ) DOMINGO GONZALEZ, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Gordon and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for possession of a controlled substance is affirmed where the evidence established that he had constructive possession of the cocaine found in the apartment, and the corpus delicti rule was not violated.
¶2 Following a bench trial, defendant Domingo Gonzalez was found guilty of possession of a
controlled substance for possessing 5.1 grams of cocaine (720 ILCS 570/402(c) (West 2016)) and
possession of 332.1 grams of cannabis (720 ILCS 550/4(d) (West 2016)). The trial court sentenced
defendant to two years’ first-time offender probation (720 ILCS 570/410 (West 2016)) and No. 1-18-1284
community service for possession of a controlled substance. The court did not impose a sentence
for the cannabis offense. On appeal, defendant contends the State failed to prove him guilty beyond
a reasonable doubt because it failed to establish that he had constructive possession of the cocaine
and cannabis found in the apartment. We affirm. 1
¶3 Defendant was tried on one count each of possession of a controlled substance with intent
to deliver between 1 and 15 grams of cocaine, and possession with intent to deliver between
30 and 500 grams of cannabis. At trial, Chicago police officers John Frano, Nicholas Hertko, Kevin
Garcia, Ivan Ramos, Marvin Bonnstetter, and Sergeant Salvatore Reina all testified that they were
members of the team that executed a search warrant at 6:45 p.m. on August 30, 2017, at an
apartment in the 3100 block of North Mason Avenue.
¶4 Frano testified that defendant was not present at the residence when the warrant was
executed. Defendant’s father, also named Domingo Gonzalez, was there. Frano searched the rear
bedroom and recovered several documents he referred to as “proofs of residency” that contained
the name of the person who was the target of the search warrant. From atop a dresser, Frano
recovered a small envelope that contained a birth certificate, a social security card, and a
vaccination card. The birth certificate and social security card were in the name “Domingo
Marcello Gonzalez.” The certificate had a date of birth of March 14, 1994. The vaccination card
was in the name “Domingo Gonzalez” and indicated vaccinations beginning in 1994 and after.
Frano also recovered large bundles of mail addressed to “Domingo Gonzalez” from inside a drawer
of that same dresser. While executing the warrant, Frano did not search through the mail to
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order.
-2- No. 1-18-1284
determine if it belonged to defendant or his father, and later discovered that some of the mail
belonged to the father. In court, Frano identified the three documents and three bundles of mail he
recovered from the dresser. Inside a walk-in closet off the rear bedroom, Frano recovered a loaded
magazine, a loaded “drum magazine,” and live rounds of ammunition.
¶5 After executing the warrant, Frano spoke with defendant’s father, who then made a phone
call. About 10 to 15 minutes later, defendant arrived at the scene and was arrested outside the
residence. Frano identified defendant in court.
¶6 On cross-examination, Frano testified that he asked the father if he knew where defendant
was, and the father then called defendant. Some of the mail contained birth dates from which Frano
was able to determine if it belonged to defendant or his father. By looking at the birth dates, Frano
concluded that the mail addressed to “Domingo Gonzalez, Junior,” belonged to defendant’s father.
¶7 Hertko testified that he recovered two clear knotted baggies containing a chunky white
rock-like substance of suspect cocaine from the kitchen floor next to the garbage can. He also
recovered an electronic scale from atop a kitchen cabinet. In the rear bedroom, Hertko recovered
a box of Winchester .22-caliber rounds.
¶8 On cross-examination, Hertko testified that when he entered the residence, an adult man
and woman were already detained in the living room. He did not observe that man in the kitchen.
¶9 Garcia testified that he recovered 18 small, knotted plastic bags of crack cocaine from
inside the kitchen garbage can. On cross-examination, Garcia testified that when he entered the
apartment, the adult man “might have been in the kitchen area.”
¶ 10 Ramos testified that inside the closet of the rear bedroom, he recovered a black backpack
containing a large amount of cannabis inside several heat-sealed bags, and a heat sealer and plastic
-3- No. 1-18-1284
bags used for packaging narcotics. In the same closet, he also recovered a metal box containing
$7287 in cash. From a dresser drawer in that bedroom Ramos recovered a semi-automatic pistol
with an extended magazine loaded with 27 live .22-caliber rounds. Ramos recovered a 2008 high
school identification card with defendant’s name and photograph from an open shelf on a dresser.
Ramos identified defendant in court and noted that he looked much younger in the photograph on
the identification card. Ramos and Reina interviewed defendant at the police station. After Reina
advised defendant of his Miranda rights, defendant stated that the gun belonged to his mother, and
the cannabis, crack cocaine, and money were his.
¶ 11 On cross-examination, Ramos acknowledged that the team made a forced entry into the
apartment because no one answered the door when they knocked and announced their office.
Ramos did not recall seeing an adult man in the kitchen when he entered the apartment.
Defendant’s statement was not put in writing. Defendant did not tell the officers where the cocaine
was located or how much there was. Ramos reiterated that defendant had stated that the narcotics
and money recovered in the home were his, and the firearm was his mother’s. Ramos did not recall
whether defendant used the word “narcotics” or “cannabis and cocaine.”
¶ 12 Reina testified that he and Ramos spoke with defendant at the police station. Reina advised
defendant of his rights, after which defendant stated that the narcotics recovered from the home
were his, the weapon was his mother’s, and he “was aware of” approximately $7000 in a black
box. Defendant did not use the word “narcotics,” but instead, said “Marijuana, weed, and
Cocaine.”
¶ 13 On cross-examination, Reina testified that he and Ramos asked defendant about the
marijuana and cocaine, and defendant admitted they were both his. The officers did not discuss
-4- No. 1-18-1284
the specifics about where they found the marijuana with defendant, nor did they ask him where he
got the drugs, what he was going to do with them, or if he sold drugs. It was “pretty much assumed”
that defendant sold drugs before police obtained the search warrant. Defendant’s statement was
not put in writing.
¶ 14 Bonnstetter testified that he recovered one plastic bag containing a white chunk substance
of suspect cocaine from inside a winter hat in the rear bedroom closet. He also recovered
10 documents that proved residency from a dresser drawer, and a digital scale inside a cabinet in
that bedroom. On top of a kitchen cabinet, he found a video camera facing the rear door of the
apartment. Officer Napoli 2 called Bonnstetter into the living room where Napoli had recovered a
black bag containing four Ziploc bags of suspect cannabis. Bonnstetter photographed and
inventoried all the items recovered by all the officers during the search.
¶ 15 The State presented a stipulation that forensic chemist Kathy Regan tested a group of four
items containing plant material and found them positive for 111.5 grams of cannabis. Another
group of five items of plant material tested positive for 137.3 grams of cannabis, and a group of
three items tested positive for 83.3 grams of cannabis. Regan tested 14 of the 18 items recovered
from the kitchen garbage can and found them positive for 1.7 grams of cocaine. The two items
recovered from the kitchen floor tested positive for 0.2 gram of cocaine, and the one bag of chunky
substance recovered from inside the hat tested positive for 3.2 grams of cocaine.
¶ 16 The trial court found the testimony from the police officers “credible and compelling,”
specifically finding that the testimony about defendant’s oral statement indicating his nexus to the
contraband was credible. The court pointed out, however, that defendant’s statement did not
2 Officer Napoli’s first name does not appear in the record.
-5- No. 1-18-1284
include anything about the scales or gun. Consequently, the court found defendant guilty of the
lesser-included offenses of possession of a controlled substance and possession of cannabis.
¶ 17 The trial court sentenced defendant to two years’ first-time offender probation (720 ILCS
570/410 (West 2016)) and community service for possession of a controlled substance. Pursuant
to the probation statute, the court deferred judgment, kept the case on its docket, and set a two-
year date for defense counsel to return and file a motion to vacate the conviction. The court
explained that it was trying to impose a sentence such that if defendant successfully completed
probation, he would not have a criminal record. The court did not impose a sentence for possession
of cannabis.
¶ 18 On appeal, defendant contends the State failed to prove him guilty beyond a reasonable
doubt because it failed to establish that he had constructive possession of the cocaine and cannabis
found in the apartment. Defendant argues that, although the search may have implicated his father,
it did not prove defendant guilty. Defendant asserts that he was not present during the search, and
there was no evidence that he resided or received mail at the apartment. Defendant points out that
none of the recovered mail was addressed to the searched residence, but instead, was addressed to
a residence on Deming Place, and therefore, the proof of residency did not establish that he had
control over the premises or drugs. In addition, defendant contends that his statement to police
lacked sufficient independent corroboration to sustain the convictions in violation of the corpus
delicti rule. Defendant asks this court to reverse both of his convictions.
¶ 19 The State responds that the evidence was sufficient where the majority of the cocaine and
marijuana were recovered from the rear bedroom where defendant’s documents and mail were
found, and defendant admitted to police that the drugs and money were his. The State asserts that
-6- No. 1-18-1284
defendant’s admission is evidence that he intended to exercise control over the drugs, and that no
one else had possession. The State argues that it did not have to show that defendant resided at the
apartment, but that he had knowledge of the contraband and control over the location where it was
found. The State further argues that the corpus delicti was met here where defendant’s admission
was not the only evidence against him.
¶ 20 Initially, we observe that because the trial court did not sentence defendant for possession
of cannabis, no final judgment was entered for that offense. Consequently, this court lacks
jurisdiction to consider the trial court’s guilty finding for the cannabis offense. People v. Relerford,
2017 IL 121094, ¶¶ 71-75. See also People v. Flores, 128 Ill. 2d 66, 95 (1989) (“it is axiomatic
that there is no final judgment in a criminal case until the imposition of sentence, and, in the
absence of a final judgment, an appeal cannot be entertained”).
¶ 21 We further observe that we also lack jurisdiction to remand this case for sentencing for
possession of cannabis. Generally, the appellate court has no jurisdiction to remand a case for
sentencing on unsentenced counts except in certain circumstances, such as when “the circuit court
determined, albeit incorrectly, that sentences could not be imposed on the lesser offenses because
they merged into the other offenses.” Relerford, 2017 IL 121094, ¶¶ 73-74 (citing People v Dixon,
91 Ill. 2d 316 (1982)). Here, the record shows that the trial court was intent on sentencing defendant
to first-time offender probation so that, if successful, he would have no criminal record. We note
that defendant was not eligible for first-time offender probation for the cannabis offense due to the
amount of cannabis recovered. See 720 ILCS 550/10(a) (West 2016). The court made no mention
of the cannabis offense during the sentencing hearing. When, as here, the record is silent as to the
reason for the trial court’s failure to impose sentence on a particular offense, the exception allowing
-7- No. 1-18-1284
remand for sentencing does not apply. Relerford, 2017 IL 121094, ¶ 74. We therefore do not have
jurisdiction to remand this case for sentencing for possession of cannabis. Accordingly, we only
consider defendant’s challenge to his conviction for possession of a controlled substance.
¶ 22 When defendant claims that the evidence is insufficient to sustain his conviction, this court
must determine whether, after viewing the evidence in the light most favorable to the State, any
rational trier of fact could have found the elements of the offense proved beyond a reasonable
doubt. People v. Brown, 2013 IL 114196, ¶ 48 (citing Jackson v. Virginia, 443 U.S. 307, 318-19
(1979)). This standard applies whether the evidence is direct or circumstantial, and does not allow
this court to substitute its judgment for that of the fact finder on issues involving witness credibility
and the weight of the evidence. People v. Jackson, 232 Ill. 2d 246, 280-81 (2009). Under this
standard, all reasonable inferences from the evidence must be allowed in favor of the State.
People v. Lloyd, 2013 IL 113510, ¶ 42.
¶ 23 In a bench trial, the trial court is responsible for determining the credibility of the witnesses,
weighing the evidence, resolving conflicts in the evidence, and drawing reasonable inferences
from therein. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). We will not reverse a criminal
conviction based upon insufficient evidence unless the evidence is so improbable or unsatisfactory
that there is reasonable doubt as to defendant’s guilt (People v. Beauchamp, 241 Ill. 2d 1, 8 (2011)),
nor simply because defendant claims that a witness was not credible or that the evidence was
contradictory (Siguenza-Brito, 235 Ill. 2d at 228).
¶ 24 To prove defendant guilty of possession of a controlled substance in this case, the State
was required to show that he unlawfully and knowingly possessed less than 15 grams of a
substance containing cocaine. 720 ILCS 570/402(c) (West 2016).
-8- No. 1-18-1284
¶ 25 Possession of contraband may be either actual or constructive. People v. Givens, 237 Ill.
2d 311, 335 (2010). Where, as here, defendant is not found in actual physical possession of the
contraband, the State must prove that he had constructive possession. People v. Spencer, 2012 IL
App (1st) 102094, ¶ 17. Constructive possession exists where defendant had knowledge of the
presence of the narcotics, and had immediate and exclusive control over the location where the
items were found. People v. Jackson, 2019 IL App (1st) 161745, ¶ 27. Knowledge may be
demonstrated by evidence of defendant’s declarations, acts, or conduct from which it can be
inferred that he knew the contraband existed in the place where it was found. Id. Control is
established when defendant has the capability and intent to maintain dominion and control over
the contraband, even if he lacks personal present dominion over it. Spencer, 2012 IL App (1st)
102094, ¶ 17 (citing People v. Frieberg, 147 Ill. 2d 326, 361 (1992)). Proof that defendant had
control over the premises where the contraband was found gives rise to an inference of his
knowledge and possession of that contraband. Givens, 237 Ill. 2d at 335. “The law is clear that the
exclusive dominion and control required to establish constructive possession is not diminished by
evidence of others’ access to the contraband.” (Internal quotation marks omitted.) Id. at 338.
¶ 26 Constructive possession may be inferred from the evidence by the trier of fact and is often
established by entirely circumstantial evidence. People v. McCarter, 339 Ill. App. 3d 876, 879
(2003). The fact finder is entitled to rely on reasonable inferences of knowledge and possession,
absent other factors that might raise a reasonable doubt of defendant’s guilt. Spencer, 2012 IL App
(1st) 102094, ¶ 17.
¶ 27 Here, viewed in the light most favorable to the State, we find that the evidence was
sufficient for the trial court to find that defendant had constructive possession of the cocaine found
-9- No. 1-18-1284
in the apartment. The evidence showed that 3.2 grams of cocaine were found inside the rear
bedroom where defendant’s birth certificate, social security card, vaccination card, high school
identification card, and mail were located. Although some of the mail belonged to defendant’s
father, some of it, including several bank statements, a letter from the Illinois Secretary of State,
and a student schedule and bill from Northeastern Illinois University, was addressed to defendant
as “Domingo M Gonzalez.” In addition to the documents, in the same bedroom closet where the
cocaine was found, Ramos recovered a metal box containing $7287 in cash. Defendant admitted
to Ramos and Reina that the cocaine and money belonged to him. The trial court found that the
testimony from the police officers was “credible and compelling,” and specifically, that the
testimony about defendant’s statement was credible.
¶ 28 The record thus shows that based on the cumulative evidence found in the bedroom and
defendant’s statement, the trial court was able to find beyond a reasonable doubt that defendant
had knowledge of the cocaine and control over the location where it was found. Jackson, 2019 IL
App (1st) 161745, ¶ 27; Spencer, 2012 IL App (1st) 102094, ¶ 17. We therefore find that the record
supports the trial court’s finding that defendant had constructive possession of the cocaine.
¶ 29 In reaching this conclusion, we find no merit in defendant’s argument that his statement to
police lacked sufficient independent corroboration to sustain his conviction in violation of the
corpus delicti rule. The corpus delicti is the fact that a crime occurred. People v. Lara, 2012 IL
112370, ¶ 17. Proof of the corpus delicti cannot rest solely on a defendant’s extrajudicial
admission, confession, or other statement. Id. Although a defendant’s confession may be integral
to proving the corpus delicti, the State must also present corroborating evidence independent of
the defendant’s own statement. Id. Where a defendant’s confession is not corroborated by other
- 10 - No. 1-18-1284
evidence, a conviction based exclusively on that confession cannot be sustained. People v.
Willingham, 89 Ill. 2d 352, 358-59 (1982).
¶ 30 Here, defendant’s statement that the cocaine was his was not the only evidence against him.
Police had recovered defendant’s birth certificate, social security card, vaccination card, high
school identification card, and mail in the same bedroom where the cocaine was found. Ramos
also recovered a metal box containing $7287 in cash in that bedroom, and defendant told Ramos
and Reina that the money was his. Consequently, the corpus delicti rule was not violated.
¶ 31 For these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 32 Affirmed.
- 11 -