2014 IL App (3d) 121016
Opinion filed November 17, 2014 _____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2014
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 21st Judicial Circuit, ) Kankakee County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-12-1016 v. ) Circuit No. 12-CF-134 ) ANTWAN L. JONES, ) Honorable ) Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________
JUSTICE SCHMIDT delivered the judgment of the court, with opinion. Justices Carter and O'Brien concurred in the judgment and opinion.
OPINION
¶1 A Kankakee County jury found defendant, Antwan L. Jones, guilty of cannabis
trafficking (720 ILCS 550/5.1(a) (West 2012)) and possession of cannabis with intent to deliver
(720 ILCS 550/5(f) (West 2012)). Those charges stemmed from a March 8, 2012, incident in
which the Kankakee Area Metropolitan Enforcement Group (KAMEG) performed a controlled
delivery of a Federal Express (FedEx) package known to contain a quantity of cannabis.
KAMEG agents arrested defendant shortly after he picked up and began to transport the package.
The counts merged; the trial court sentenced defendant to a term of nine years' imprisonment on the trafficking count. Defendant appeals, arguing that the State failed to prove beyond a
reasonable doubt that he had knowledge that the package contained cannabis. Defendant also
contends that certain statements made by the State in closing arguments constituted plain error.
We affirm.
¶2 FACTS
¶3 The State charged defendant with unlawful cannabis trafficking (720 ILCS 550/5.1(a)
(West 2012)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(f)
(West 2012)). The matter proceeded to a jury trial on July 23, 2012.
¶4 A security specialist for FedEx testified that the package in question met several criteria,
causing FedEx to identify the package as suspicious. The criteria included the facts that the
package was shipped from a southern state, paid for by cash, no signature was required, and the
"ship from" phone number was the same as the "ship to" phone number. FedEx notified
KAMEG and apprised it of this information. Agents of KAMEG arrived at the local FedEx
facility the following day and identified the suspicious package. In addition to the factors set out
by FedEx, officers noted that all of the seams on the package were taped. The officers conducted
a dog sniff. After the dog alerted, agents procured a warrant to open the package. Agent Joseph
Bertrand opened the package and observed what appeared to be cannabis. A field test confirmed
this observation. The contents were placed back into the package along with a tracking device,
and the package was resealed.
¶5 Agent Willie Berry delivered the package to the address listed on the package, 552 South
Myrtle Avenue in Kankakee. Berry knocked on the front door and rang the doorbell at
approximately 10:30 a.m. When no one answered the door, Berry put the package down and left
the scene. Two minutes later, Bertrand, who was participating in the surveillance of the
2 controlled delivery, observed a white female open the door and retrieve the package. About 13
minutes later, Bertrand saw a green and tan Buick turn down an alley adjacent to Myrtle Avenue.
Two minutes after that, a black male appeared from the north side of the residence, walked up to
the porch, and entered the residence.
¶6 Two to three minutes later, Bertrand observed the subject leaving the residence and
walking in the direction of the Buick and eventually out of Bertrand's view. Other KAMEG
agents were parked a few blocks away from the residence. Upon receiving a report of a green
and tan Buick, the KAMEG agents followed the Buick as it left the area. The Buick turned north
onto Lincoln Avenue, traveled three blocks east on Bourbonnais Street, and then turned south
onto Osborn Avenue, where the agents commenced a traffic stop.
¶7 Defendant rode in the front passenger seat, while Latifah Starks drove. Defendant held
the unopened package. When agents ordered defendant and Starks to exit the vehicle, defendant
threw the package into the backseat. Agent Joseph English estimated the time between the report
of the Buick's description and the traffic stop was less than two minutes. Agent Jeffrey Martin
testified that the time period was "[m]aybe a minute or less." Agent Chris Kidwell testified that
he initiated the traffic stop because he did not want to lose such a large amount of cannabis into
the community. He estimated that the street value of the package would be approximately
$38,000.
¶8 Agent Clayt Wolfe testified that at the time of defendant's arrest, defendant was carrying
$509 in cash. Wolfe interviewed defendant following the arrest. The video recordings of that
interview were entered into evidence and played in court. In the interview, defendant initially
stated that he was taking the package to the post office. Later, defendant said he was taking the
package to FedEx. Additionally, defendant first told police that his stepmother, Katherine
3 Kemp, who lived at the Myrtle Avenue address, called him on the morning of March 8,
informing him that a package had been delivered and that it was not for her. She asked
defendant to return the package to FedEx for her. Later in the interview, defendant stated that
his stepmother had called to tell him that his shoes had been delivered, but that when he arrived
to retrieve the package, he noticed that it was not addressed to him. It was at this point that his
stepmother suggested he bring the package back to FedEx. Wolfe testified that the Buick's
direction of travel was inconsistent with defendant's claim that he was on the way to FedEx when
stopped.
¶9 Defendant also told police that he was talking with Starks about FedEx earlier on March
8 because he was expecting a pair of shoes to be delivered. He did not want packages delivered
to his own house because he did not want his girlfriend to know about them. He noted that he
had a "second girlfriend" in addition to Starks. Defendant also told police that he had been in
court earlier that morning regarding an issue of child support. Defendant stated repeatedly in the
interview that he did not know what was in the package.
¶ 10 Katherine Kemp testified that she had resided at 552 South Myrtle Avenue since 1993.
She had been in a relationship with defendant's father. Defendant called her on March 7 to
inform her that he was having a pair of shoes delivered to her home. Defendant previously had
packages delivered there on Christmas and Valentine's Day. Kemp never looked at who sent the
packages or to whom they were addressed, nor did she open them. Similarly, on March 8, she
called defendant about the package without looking at the shipping label.
¶ 11 On cross-examination, Kemp explained that she did not "know if [the package] was
shoes. [Defendant] said it was presents for his girlfriend and he didn't want her to get into them."
Kemp further testified that she never told defendant the package was not addressed to him and
4 never told defendant to return the package to FedEx.
¶ 12 Starks was the lone witness for the defense. She testified that on the morning of March 8,
as she was leaving the hospital with her ill mother, she received a telephone call from defendant
asking if she could pick him up. After she picked up defendant, he received a telephone call, and
they proceeded to Kemp's house. Defendant went into the home and returned to the car with a
package. Starks recalled that defendant had received a package of athletic apparel, delivered to
Kemp's house, around Christmastime. Defendant opened that package at Starks' house, and there
were Lakers hats and Michael Jordan shoes inside.
¶ 13 On cross-examination, Starks testified that she was in love with defendant and had known
him for four years. In her interview with police after the traffic stop, Starks stated that she did
not know defendant's full name, and simply called him "G." She did not know where defendant
lived. Starks testified that she knew defendant was expecting a package that was important to
him, and, for that reason, she texted defendant on the morning of March 8 when she saw a FedEx
truck in the neighborhood. Starks further told police that defendant did have a car at that time,
and he was working "[c]utting hair around the neighborhood." While she and defendant had
discussed his filing for unemployment, she did not know whether he had.
¶ 14 Starks testified that she told defendant about the FedEx truck because defendant had
previously ordered athletic apparel that had been stolen. Starks noted that in that neighborhood,
packages would be stolen from porches if no one was home to accept the packages when they
arrived.
¶ 15 The jury found defendant guilty on both counts. After denying defendant's motion for a
new trial, the court proceeded to sentencing. The two counts merged, the court sentenced
defendant only on the trafficking count.
5 ¶ 16 ANALYSIS
¶ 17 I. Sufficiency of the Evidence
¶ 18 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. Baskerville, 2012 IL 111056, ¶ 31. In making this
determination, we review the evidence in the light most favorable to the prosecution. Id.
¶ 19 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). " 'Where
evidence is presented and such evidence is capable of producing conflicting inferences, it is best
left to the trier of fact for proper resolution.' " Saxon, 374 Ill. App. 3d at 416 (quoting People v.
McDonald, 168 Ill. 2d 420, 447 (1995)). The trier of fact is not required to accept or otherwise
seek out any explanations of the evidence that are consistent with a defendant's innocence; nor is
the trier of fact required to disregard any inferences that do flow from the evidence. People v.
Sutherland, 223 Ill. 2d 187, 233 (2006); see also Saxon, 374 Ill. App. 3d at 416-17.
¶ 20 Section 5.1 of the Cannabis Control Act (Act) provides that "any person who knowingly
brings or causes to be brought into this State *** with the intent to manufacture or deliver 2,500
grams or more of cannabis in this State or any other state or country is guilty of cannabis
trafficking." 720 ILCS 550/5.1(a) (West 2012). Similarly, the Act also provides that it is
unlawful for any person to knowingly possess with intent to deliver cannabis. 720 ILCS 550/5
(West 2012). Defendant was charged with one count under each of these subsections. Each
offense requires the State to prove that a defendant had knowledge of the cannabis. See People
6 v. Schmalz, 194 Ill. 2d 75, 81 (2000); People v. Nwosu, 289 Ill. App. 3d 487, 494 (1997).
Defendant contends that the State failed to prove beyond a reasonable doubt that he knew the
package contained cannabis.
¶ 21 A. Proving Guilty Knowledge
¶ 22 In arguing that the facts presented at trial were not sufficient to overcome reasonable
doubt with respect to the knowledge requirement, defendant cites extensively to People v.
Hodogbey, 306 Ill. App. 3d 555 (1999). In that case, authorities seized a package of heroin en
route from Thailand to Chicago. The package was addressed to the defendant, Nelson
Hodogbey, and contained a note written to "Nelson." Id. at 556. During a controlled delivery of
the package, Hodogbey looked at the return address and confirmed that the package was his.
After accepting the package, Hodogbey walked "from the apartment building to the sidewalk
where he looked both ways down the street before returning inside." Id. at 557. Hodogbey then
left his apartment with a friend, at which point he was arrested. Defendant told the arresting
officer that he had a friend in Bangkok, but could not remember his name. The unopened
package was recovered in Hodogbey's apartment.
¶ 23 The First District found the evidence insufficient to prove beyond a reasonable doubt that
Hodogbey knew the package contained heroin. Id. at 562. Specifically, the court stated that
Hodogbey's leaving his apartment, looking up and down his street, and then returning to the
apartment building was insufficient evidence, noting: " '[S]uspicious behavior in the vicinity of
narcotics will not suffice as proof of knowledge as to their presence.' " Id. at 561 (quoting
People v. Boswell, 19 Ill. App. 3d 619, 621 (1974)).
¶ 24 Recently, the Second District discussed the Hodogbey decision and its precedents.
People v. Brown, 2012 IL App (2d) 110640. The Brown court pointed out that the above
7 quotation from Hodogbey—"suspicious behavior in the vicinity of narcotics will not suffice as
proof of knowledge as to their presence"—was taken directly from Boswell, 19 Ill. App. 3d at
621. Brown, 2012 IL App (2d) 110640, ¶ 21. The Boswell court, in turn, attributed the
proposition to People v. Ackerman, 2 Ill. App. 3d 903 (1971). Brown, 2012 IL (App) 2d 110640,
¶ 21.
¶ 25 In Ackerman, the proposition appeared in the following context:
"In People v. Jackson, 23 Ill. 2d 360 [(1961)], the Court declared, 'The
State would have us extend the Mack doctrine [(People v. Mack, 12 Ill. 2d
151 (1957))] by holding that suspicious behavior in the vicinity of
narcotics is proof not only of knowledge of their presence, but of all of the
other elements of criminal possession as well. This we cannot do,
however reluctant we may be to disturb the determination of the trier of
facts in narcotics cases.' " Ackerman, 2 Ill. App. 3d at 905 (quoting
Jackson, 23 Ill. 2d at 364).
Thus, it appears that Jackson, the basis of the holdings in Boswell and Hodogbey, actually stands
for the proposition that suspicious behavior may constitute proof of knowledge, but not of the
other elements of the offense. Brown, 2012 IL App (2d) 110640, ¶ 22. Indeed, the Jackson
court pointed out that had the element of possession been proven in that case, the evidence of the
defendant's suspicious behavior "would, of course, be ample to show guilty knowledge in the
defendant." Jackson, 23 Ill. 2d at 364.
¶ 26 We agree with the Second District that the decisions in Hodogbey and Boswell "stand for
the proposition opposite to that announced in the supreme court cases from which they indirectly
draw their precedential support." Brown, 2012 IL App (2d) 110640, ¶ 23. Because those cases
8 depart from the precedent of our supreme court, we join the Second District in declining to
follow them. A trier of fact is, indeed, entitled to draw a commonsense inference that a
defendant's suspicious behavior resulted from his knowledge that he was committing a crime.
¶ 27 B. Defendant's Knowledge
¶ 28 "The element of knowledge is rarely susceptible of direct proof and may be established
by evidence of acts, declarations or conduct of the defendant which support the inference that he
knew of the existence of narcotics ***." Nwosu, 289 Ill. App. 3d at 494. While a trier of fact
may infer knowledge from suspicious behavior, mere possession of an unopened package
containing drugs is insufficient to sustain a conviction for which knowledge is an element. See
Ackerman, 2 Ill. App. 3d at 905-06.
¶ 29 In Ackerman, the evidence adduced at trial showed that a package containing LSD was
delivered to the defendant's dormitory. Id. at 904. Hours later, the defendant went to his
mailbox, retrieved a notice that a package had been delivered for him, and then picked up the
package. The package was addressed to a Gary Lang, in care of the defendant. The defendant
placed the package under his arm and began to walk toward the elevator, at which point he was
stopped and arrested. The court found that there was insufficient evidence of knowledge to
sustain a conviction, noting "the evidence fails to show acts, declarations or conduct which fairly
support[s] any inference of knowledge by defendant that the package contained LSD." Id. at
905. So Ackerman simply and correctly held that there was no suspicious activity on the part of
the defendant from which a reasonable trier of fact could infer guilty knowledge.
¶ 30 In the case at hand, numerous suspicious circumstances allow a rational trier of fact to
infer that defendant had knowledge of the contents of the package. Unlike the defendant in
Ackerman, defendant here picked up a package from another person's house. Defendant then
9 took possession of a package that showed neither his name nor his address. It is also remarkable
that in the span of approximately 18 minutes, defendant received a telephone call from Kemp,
immediately directed Starks to Kemp's house (despite having his own car at the time), stayed at
Kemp's for only a few minutes, then departed, ostensibly to return a wrongly delivered package
to FedEx. This sort of effort, whether to obtain a pair of shoes or to return another person's
package to FedEx, is suspect.
¶ 31 Also suspicious was the route that defendant traveled while in possession of the package.
According to KAMEG agents, the Buick traveled briefly one block north, three blocks east, and
one block back south. At the urging of defendant, we take judicial notice of a map of the area in
which defendant was traveling (see People v. Clark, 406 Ill. App. 3d 622, 632-34 (2010)),
though this is hardly helpful to defendant's case. The map indicates that the FedEx facility,
purportedly defendant's destination, was located to the northeast of defendant's location on the
opposite side of the interstate. The only road in the area that appears to cross the interstate is
Court Street, due north of defendant's location. Defendant was heading south at the time of his
apprehension. This aligns with Wolfe's testimony that defendant's direction of travel was
inconsistent with a route to the FedEx facility.
¶ 32 Further, it is probative that defendant made a series of false statements to police in his
interview. As this court recognized in Saxon, 374 Ill. App. 3d at 417, "[f]alse exculpatory
statements are ' "probative of a defendant's consciousness of guilt." ' " (quoting Milka, 211 Ill. 2d
at 181, quoting People v. Shaw, 278 Ill. App. 3d 939, 951 (1996)). Defendant first told the
police that he was taking the package to the post office before changing his story to the FedEx
facility being his destination. He also originally told police that Kemp told him over the phone
that the package was not hers and that he should return it to FedEx. Later, defendant said that he
10 went to Kemp's house expecting that the package belonged to him and that Kemp only suggested
he return the package to FedEx after he arrived at Kemp's house. Meanwhile, Kemp testified
that she never told defendant to return the package to FedEx.
¶ 33 Defendant contends that all of these suspicious circumstances are either minor or may be
explained in a way consistent with his innocence. The trier of fact, however, is not obligated to
accept those explanations. Sutherland, 223 Ill. 2d at 233. Where reasonable inferences from the
evidence may be made in favor of the prosecution, those inferences will be allowed. Bush, 214
Ill. 2d at 326. Due to defendant's suspicious behavior immediately before and after picking up
the package, as well as his inconsistent and false statements to police, a rational trier of fact
could easily infer that defendant knew that the package contained cannabis.
¶ 34 II. Closing Arguments
¶ 35 Defendant also argues that the State made a series of improper statements during closing
arguments. Defendant identifies three specific arguments made by the State that he maintains
were not based on the evidence or legitimate inferences to be drawn from the evidence. Defense
counsel only objected to one of the arguments, and none were raised in defendant's posttrial
motion. For that reason, defendant urges that we review under the rubric of plain error.
¶ 36 Any issue not raised in a posttrial motion is considered waived for appeal. People v.
Enoch, 122 Ill. 2d 176, 186 (1988). We cannot review such an issue unless it is deemed to be
plain error. People v. Rippatoe, 408 Ill. App. 3d 1061, 1066 (2011). The first step in plain-error
analysis is determining whether an error occurred at all. People v. Walker, 232 Ill. 2d 113, 124-
25 (2009). This error must be "clear or obvious" in order for the analysis to proceed. People v.
Piatkowski, 225 Ill. 2d 551, 565 (2007). Because we find no error in any of the State's
11 arguments identified by defendant, we need not proceed to further steps in the plain-error
analysis.
¶ 37 The State is afforded wide latitude in making its closing arguments. People v. Glasper,
234 Ill. 2d 173, 204 (2009). Prosecutors are "permitted to comment on the evidence and any fair,
reasonable inferences it yields." Id. They may not argue facts not contained on the record. Id.
Prosecutors are also free to challenge the credibility of witnesses (People v. Richardson, 123 Ill.
2d 322, 356 (1988)) and the credibility of the defense's theory of the case (Glasper, 234 Ill. 2d at
207), as long as there is evidence to support that challenge. "Misconduct in closing argument is
substantial and warrants reversal and a new trial if the improper remarks constituted a material
factor in a defendant's conviction." People v. Wheeler, 226 Ill. 2d 92, 123 (2007).
¶ 38 Defendant first contends that the State improperly argued that Starks was aware that the
package contained cannabis, pointing to the following passage from the State's closing:
"Let's talk about Latifah Starks. The defendant's second girlfriend. Now,
the person [s]he knew was expecting a package—a FedEx package
specifically, and despite being at the hospital all night long with her
mother who was having heart palpitations or having breathing problems,
managed to an hour before the package was received and delivered text
the defendant and tell him that there was a FedEx truck in the area. All
this for shoes when her mother's [sic] at the emergency room, not knowing
what's happening, she manages to text him and tell him that a FedEx
package—or van is in the area—or FedEx truck is in the area. She must
have known how important that package was to him, ladies and
gentlemen, $38,000 of importance."
12 Defendant insists that the State presented no evidence that Starks had knowledge of the contents
of the package and that no evidence presented could give rise to such an inference.
¶ 39 The State's implication that Starks knew the package contained cannabis was not
improper. Starks was with her ill mother when she texted defendant to inform him that a FedEx
truck was in the area. Though Starks testified that she did this because of the possibility of the
package being stolen, the jury makes the ultimate determination of a witness's credibility. Later
that day, Starks was still with her ill mother when she received a telephone call from defendant.
She immediately left, picked defendant up, and drove him to Kemp's house. It is reasonable to
infer from these facts that Starks was aware that the package was of great value, value beyond
that of a pair of shoes.
¶ 40 Defendant next takes exception to the State's references in closing and rebuttal to
defendant's financial situation. Specifically, defendant contends that it was improper for the
State to infer from the evidence that defendant could not afford to buy athletic apparel or to have
a large amount of cash on him. The State, defendant argues, "presented virtually no evidence of
[defendant's] financial position or financial habits."
¶ 41 We, again, find that the State's argument was not improper. The State referred in its
arguments to the $500 found on defendant at the time of his arrest, his owning a car, and his
child support obligation. The State also referenced Starks' testimony that defendant had a job
"[c]utting hair around the neighborhood." Based on the evidence of defendant's job, obligations,
affinity for athletic apparel, and his having over $500 in cash, it is reasonable to infer that
defendant had a source of income not mentioned by Starks. As defendant was found in
possession of $38,000 worth of cannabis, the inference that he earned additional income from the
sale of drugs is equally reasonable. See, e.g., People v. Johnson, 334 Ill. App. 3d 666, 677
13 (2002) (large amounts of cash—$291—and drugs found on defendant sufficient to infer that
defendant intended to deliver drugs).
¶ 42 Finally, defendant takes issue with the following passage from the State's rebuttal:
"And just so we're clear, ladies and gentlemen, this case is not about
shoes. There's no shoes in this case. There never were. There never will
be. There probably weren't shoes back in Valentine's Day. There
probably weren't shoes back in Christmas. Shoes never existed. It's all a
lie. It's a fabrication. It's a falsehood. It's the best attempt he has to cover
his tracks. He used the fake names. He doesn't send the package to his
house. Drug dealing 101, you insulate yourself from the conduct that you
are actively participating in."
Defendant contends that, in refuting the testimony that defendant had previously received
packages of shoes, the State was essentially "telling" the jury that defendant actually received
shipments of cannabis.
¶ 43 We disagree with defendant's interpretation of the State's comments. By arguing that
there had been no previous shipments of shoes, the State was calling into question Starks'
testimony that defendant had received previous shipments of shoes and that she had witnessed
him opening one such package. Essentially, the State was arguing that that testimony had been
fabricated to make defendant's present explanation seem more plausible. This attack on Starks'
credibility was well within the latitude given to a prosecutor in closing arguments.
¶ 44 We find that there was no misconduct on the part of the State in closing arguments, and
certainly not a level of misconduct substantial enough to warrant reversal. As we find no error,
we need not proceed further in our plain-error analysis.
14 ¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, the judgment of the circuit court of Kankakee County is
affirmed.
¶ 47 Affirmed.