People v. Love

• Court: Appellate Court of Illinois
• Decided: October 7, 2010
• Docket: 2-08-1002 Rel
• Status: Published

Opinion

No. 2-08-1002 Filed: 10-7-10 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 07--CF--1347 ) TERRELL L. LOVE, ) Honorable ) Joseph G. McGraw, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the opinion of the court:

Pursuant to a plea agreement, defendant, Terrell L. Love, pleaded guilty to robbery (720

ILCS 5/18--1(a) (West 2006)) in exchange for four years of probation. As a condition of his

probation, defendant was ordered not to violate any criminal statutes or ordinances of any

jurisdiction. While defendant was on probation, he was arrested for unlawful possession of cannabis

with the intent to deliver (720 ILCS 550/5(c) (West 2006)), armed violence (720 ILCS 5/33A--2

(West 2006)), and unlawful use of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 2006)). The

State petitioned to revoke defendant's probation (730 ILCS 5/5--6--4 (West 2008)).1 The trial court

1 The charges forming the basis of the petition to revoke defendant's probation were also separately filed in case number 07--CF--4364. In that case, defendant moved to quash his arrest and

suppress the evidence seized, arguing that there was no reasonable basis for the stop preceding the

arrest. The trial court granted that motion, and the State dismissed case number 07--CF--4364. No. 2--08--1002

granted the petition and sentenced defendant to six years' imprisonment. Defendant timely appeals,

claiming that the State failed to prove that he violated the terms of his probation. We affirm.

The relevant evidence presented at the probation revocation hearing consisted of the

following. Officer Dennis Hill testified that he was working with the Winnebago County sheriff's

department on November 10, 2007. At approximately 12:15 a.m., he was on patrol when he stopped

a car that had an obstructed windshield. Hill observed that there were three people in the car.

Marcus Jones was driving the car, Elliot Cozzi was the front-seat passenger, and defendant was

sitting in the backseat, behind Jones. As Hill approached the car, he saw that the driver's window was

lowered approximately halfway, and Hill detected a strong odor of cannabis emanating from inside

the car. Because Hill detected the smell of cannabis, he asked Jones to exit the car. Before Jones got

out of the car, Jones placed his hand under the driver's seat.

Jones was placed in the back of Hill's squad car, as Hill was preparing to do a search of the

car. Hill then asked defendant and Cozzi to exit the car. Although defendant exited the car before

the search began, Cozzi, who was disabled and unable to walk or stand on his own, remained in the

car until a person he contacted arrived. Hill frisked Cozzi to determine whether he was armed, but

Hill did not pat Cozzi down in an attempt to see whether he was in possession of a controlled

substance.

Before defendant exited the car, Hill saw in the backseat Cozzi's wheelchair and various

articles of clothing. When defendant exited the car, Hill noticed a brown paper bag sitting on the

Although the State opted not to prosecute defendant for the offenses in case number 07--CF--4364,

those charges and the evidence seized in that case may nevertheless be used in the case to revoke

defendant's probation. See People v. Dowery, 62 Ill. 2d 200, 208 (1975).

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backseat. Hill stated that the paper bag "was in a laid down position with like the top just folded

over." The paper bag was folded over once and it was lying on its "long and wide side." Hill also

testified that "if [defendant] was sitting on the seat, [the paper bag] would have been underneath his

[right] thigh." Hill demonstrated for the court where the paper bag was located in relation to

defendant's thigh, and the court clarified for the record that "[Hill] is indicating his hand is placed

under the mid portion of his right thigh."2 Given the location of the paper bag, Hill did not see the

paper bag when he initially approached the car on the driver's side. Inside the paper bag was a

handgun and cannabis. The cannabis was loose inside the paper bag and weighed 31.1 grams.

Although a handgun was discovered between the driver's seat and the center console and

baggies of cannabis were found inside the console, under the driver's seat, and inside one of Jones's

shoes, no contraband other than that in the paper bag was found in the backseat, and Hill noted in his

report that defendant did not smell of cannabis. Hill also did not find any remnants of burnt cannabis

in the car, and he never saw defendant holding the paper bag, any of the cannabis, or either weapon.

When defendant was asked about the guns and the cannabis, he claimed that he did not know that any

of those items were in the car.

For the most part, defendant testified consistently with Hill. However, defendant also testified

that on November 9, 2007, he talked to Jones on the phone at approximately 11 p.m. Defendant

asked Jones if he could give defendant a ride to the gas station to buy cigarettes. Jones arrived at

defendant's house at 11:15 p.m. Before getting in the backseat of Jones's car, defendant noticed

Cozzi's wheelchair behind the front passenger seat. Various other items, including a jacket, a sweater,

and tennis shoes, were also lying on the backseat. Defendant pushed these items out of the way so

2 According to Hill's police report, the paper bag was next to defendant's thigh, not under it. -3- No. 2--08--1002

that he could sit down on the backseat. Although defendant did not disagree that the brown paper

bag was probably sitting on the backseat, he testified that he never saw it. Moreover, although

defendant asserted that he does not smoke cannabis, he admitted that he knows what burnt cannabis

smells like, and he did not smell burnt cannabis in the car that night. Further, defendant denied

knowing that there was cannabis in the car, having the paper bag under his thigh when Hill

approached the car, and bringing into the car the paper bag, either gun, or any of the cannabis.

The trial court granted the petition to revoke defendant's probation. In doing so, the trial

court noted that the brown paper bag, which was admitted into evidence, was smaller than a grocery

bag but bigger than a brown paper lunch bag. More specifically, the court found that the bag

measured about 10 inches across and 2 feet long. Concerning the gun that was discovered in the

paper bag, the court found that the barrel measured 4½ to 5 inches in length, that the grip of the gun

was 3 to 3½ inches long, and that the height of the gun's slide was 1 inch. Additionally, after

recounting to what Hill and defendant testified, the court found Hill more credible than defendant.

Thus, the court found that, because defendant was at least partially sitting on the bag, he was in actual

possession of the bag. The court asserted that defendant knew what was in the bag, because

defendant could not sit or partially sit on the bag, which contained the steel gun and cannabis, without

knowing on what he was sitting.

At issue in this appeal is whether the State proved that defendant violated the terms of his

probation. At probation revocation proceedings, the State is required to prove a probation violation

by a preponderance of the evidence. 730 ILCS 5/5--6--4(c) (West 2006); People v. Jones, 377 Ill.

App. 3d 506, 508 (2007). A proposition is proved by a preponderance of the evidence when the

proposition is more probably true than not true. People v. Drake, 131 Ill. App. 3d 466, 472 (1985).

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In evaluating whether the State met its burden, the trial judge is free to resolve inconsistencies in the

testimony and to accept or reject as much of each witness's testimony as the judge pleases. See

People v. Howard, 376 Ill. App. 3d 322, 329 (2007). Because the trial judge is in a superior position

to weigh the evidence and decide on the credibility of the witnesses, we may not reverse the judgment

merely because we might have reached a different conclusion. See People v. Houston, 118 Ill. 2d

194, 200 (1987). Rather, we will reverse the court's judgment revoking a defendant's probation only

if it is against the manifest weight of the evidence. People v. Colon, 225 Ill. 2d 125, 158 (2007). A

finding is against the manifest weight of the evidence only if the opposite result is clearly evident.

People v. Keller, 399 Ill. App. 3d 654, 662 (2010). Thus, even where the State's evidence is slight,

we must affirm the revocation of a defendant's probation as long as the opposite conclusion is not

clearly evident. See, e.g., People v. Matthews, 165 Ill. App. 3d 342, 343-45 (1988) (in case where

security officer testified only that he saw the defendant put on a jacket and leave the store without

paying for it, reviewing court affirmed the revocation of the defendant's probation, because, even

though evidence that the defendant violated his probation by committing a retail theft was scant, a

conclusion that the defendant did not commit the crime was not clearly evident).

Here, defendant does not dispute that the paper bag was found in the backseat, that the paper

bag contained a weapon and cannabis, or that he was a convicted felon. Rather, defendant argues

that the State failed to prove that he was in possession of either the gun or the cannabis. Both

defendant and the State agree that, if the evidence did not establish by a preponderance that defendant

was in possession of the gun and cannabis found in the paper bag, defendant's probation should not

have been revoked.

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Because possession is often difficult to prove directly, proving possession frequently rests

upon circumstantial evidence. See People v. Eghan, 344 Ill. App. 3d 301, 307 (2003). In a case

based on circumstantial evidence, each link in the chain of circumstances does not need to be proved

by a preponderance of the evidence if all the evidence considered collectively satisfies the trier of fact

by a preponderance of the evidence that the defendant is guilty. See People v. Hall, 194 Ill. 2d 305,

330 (2000) (providing that, in a case where the defendant claims that he was not proved guilty

beyond a reasonable doubt, each link in the chain of circumstances does not need to be proved

beyond a reasonable doubt if all of the evidence considered collectively establishes the defendant's

guilt).

Possession falls into two categories, i.e., actual and constructive. "Actual possession is

proved by testimony which shows [that the] defendant exercised some form of dominion over the

unlawful substance, such as trying to conceal it or throwing it away." People v. Scott, 152 Ill. App.

3d 868, 871 (1987). On the other hand, "constructive possession" arises when the defendant has the

intent and capability to maintain control and dominion over the contraband. Eghan, 344 Ill. App. 3d

at 307. Constructive possession may be proved by showing that the defendant had knowledge of the

presence of the contraband and had immediate and exclusive control over the area where the

contraband was found. People v. Ingram, 389 Ill. App. 3d 897, 899-900 (2009). A defendant's mere

presence in a car where contraband is found is not enough to establish the defendant's knowledge of

the contraband. Ingram, 389 Ill. App. 3d at 900. However, knowledge may be inferred from several

factors, including (1) the visibility of the contraband from the defendant's location within the car; (2)

the amount of time that the defendant had to observe the contraband; (3) any gestures or movements

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made by the defendant that would suggest that the defendant was attempting to retrieve or conceal

the contraband; and (4) the size of the contraband. Ingram, 389 Ill. App. 3d at 900.

Applying these principles in light of the facts presented here, we determine that the trial

court's finding that defendant had possession of the cannabis and the gun is not against the manifest

weight of the evidence. That is, the evidence established by a preponderance that, at a minimum,

defendant had constructive possession of the bag containing the contraband. Before defendant got

in the car, he noticed several items in the backseat. He saw Cozzi's wheelchair and various items of

clothing. According to defendant, the clothing, which was lying in the area where defendant was

going to sit, included a jacket, a sweater, and tennis shoes. Although defendant was able to describe

all of these items, he claimed that he never saw the rather large paper bag that was also sitting on the

backseat. As the State notes, "[t]he fact that [defendant] saw and could describe all of the other items

he pushed aside raises a serious question as to the credibility of [defendant's] statement that he did

not notice the substantially sized paper bag."

Added to this is the fact that the paper bag was not found underneath the clothes, the

backseat, or Cozzi's wheelchair. Rather, according to Hill, whom the trial court found more credible

than defendant, the paper bag was under defendant's right thigh. Defendant was at least partially

sitting on that bag in that way for an hour. As the State observes, "[s]omeone who took such care

to move noninvasive and soft items like a sweater, jacket, and pair of shoes out of the way so that

he could sit in the back seat would surely move such a large bag with a hard object in it well out of

his way simply for comfort's sake."

The fact that the bag was obscured from Hill's initial view into the car lends further support

to the trial court's conclusion that defendant possessed the bag. That is, because the bag was hidden

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from Hill, a reasonable inference arises that defendant knowingly possessed the contraband. See, e.g.,

People v. Rangel, 163 Ill. App. 3d 730, 740 (1987) (the defendant was found in knowing possession

of a gun found in plain view on the floor of a car where the defendant had been sitting just before he

exited the car). And, no one but defendant had control over the bag. Jones had already been

removed from the car, and Cozzi's physical limitations prohibited him from accessing the backseat.

Defendant claims that the fact that Hill smelled cannabis when he approached the car, but

never smelled cannabis on defendant, somehow mandates a conclusion that defendant could not be

in possession of the paper bag. We find defendant's reliance on that fact unpersuasive. Hill never

testified that he smelled burnt cannabis, and no burnt cannabis was found anywhere in the car or on

Jones, Cozzi, or defendant. That fact is important, because the smell of burnt cannabis, which is very

strong, is entirely different from the smell of cannabis that has not been used. Here, all of the

cannabis found was unused and in some type of container. Thus, it is reasonable that, when defendant

was removed from the car, Hill did not smell cannabis on defendant, who had no cannabis on him and

had been sitting on cannabis that was in a paper bag.

Citing the facts that he did not own the car, he was not driving the car, other people were also

in the car, and a weapon and cannabis were found on Jones and within his immediate control,

defendant claims that the State failed to establish that he was in possession of the gun and cannabis

found in the paper bag. We disagree.

This court has recently found that such facts do not defeat a finding that a defendant

possessed contraband. In Ingram, the defendant was a front-seat passenger in a car that he did not

own. Ingram, 389 Ill. App. 3d at 898. The seat in which the defendant was sitting was fully reclined,

so that it was resting on the back passenger seat. Ingram, 389 Ill. App. 3d at 898. Two people other

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than the defendant--a driver and a backseat passenger--were also in the car. Ingram, 389 Ill. App.

3d at 898.

After the car was stopped because its registration had expired, an officer saw a bullet cartridge

and a bottle of liquor on the floor by the driver's seat. Ingram, 389 Ill. App. 3d at 898. Also found

in the car was a handgun. Ingram, 389 Ill. App. 3d at 898. The handgun, which was in plain view,

was lying on the floor directly behind the driver's seat. Ingram, 389 Ill. App. 3d at 898. Both the

defendant and the backseat passenger would have had access to the gun. Ingram, 389 Ill. App. 3d

at 901.

Based on these facts, a jury found the defendant guilty beyond a reasonable doubt of unlawful

possession of a weapon by a felon. Ingram, 389 Ill. App. 3d at 901. This court affirmed. Ingram,

389 Ill. App. 3d at 901. Although other evidence, like the defendant's flight from the car and his

giving the officer an alias, supported a finding that the defendant was guilty, this court found that the

facts that the defendant did not own the car, the defendant was not driving the car, other people in

the car had access to the weapon, and other contraband was found in an area accessible to another

occupant of the car did not defeat a finding that the defendant had possession of the weapon found

on the floor behind the driver's seat. Ingram, 389 Ill. App. 3d at 900-01.

Here, as in Ingram, those same facts do not warrant a finding that the State failed to prove

by a preponderance of the evidence that defendant was in possession of the gun and cannabis found

in the paper bag. Although such facts might be persuasive in other cases, they are not so here, where

the evidence revealed, among other things, that no one other than defendant had ready access to the

contraband, that defendant was in the car for an hour, that defendant was sitting on the contraband,

and that (given the contraband's size) the contraband must have been noticeable.

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For these reasons, the judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

HUTCHINSON and BURKE, JJ., concur.

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