People v. Lumpkins

2023 IL App (3d) 200310-U

• Court: Appellate Court of Illinois
• Decided: March 28, 2023
• Docket: 3-20-0310
• Status: Unpublished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).

2023 IL App (3d) 200310-U

Order filed March 28, 2023 _____________________________________________________________________________

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. 3-20-0310 v. ) Circuit No. 18-CF-159 ) MAURICE C. LUMPKINS, ) The Honorable ) Clark E. Erickson, Defendant-Appellant. ) Judge, Presiding. _____________________________________________________________________________

JUSTICE PETERSON delivered the judgment of the court. Justices Brennan and Hettel concurred in the judgment. _____________________________________________________________________________

ORDER

¶1 Held: In an appeal in a criminal case in which defendant was convicted of multiple drug offenses, the appellate court found that: (1) the trial court did not err in denying defendant’s motion to quash search warrant and suppress evidence; (2) defendant was proven guilty beyond a reasonable doubt of all of the drug offenses of which he was convicted, except for one; and (3) the trial court did not err in admitting into evidence at defendant’s trial a statement made by a confidential source that was contained in a video recording of one of the controlled purchases of drugs that led, in part, to the issuance of the search warrant. The appellate court, therefore, affirmed the trial court’s judgment in part and reversed the trial court’s judgment in part. ¶2 After a bench trial, defendant, Maurice C. Lumpkins, was found guilty of three counts of

unlawful possession of a controlled substance with intent to deliver (counts I, II, and IV) (720

ILCS 570/401(a)(1)(A), (c)(1), (c)(2) (West 2018)) and one count of unlawful delivery of a

controlled substance (count V) (720 ILCS 570/401(d)(i) (West 2018)) and was sentenced to

concurrent prison terms of nine years on count I, five years on counts II and IV, and three years

on count V. Defendant appeals, arguing that: (1) the trial court erred in denying defendant’s

motion to quash search warrant and suppress evidence (referred to hereinafter at times as the

motion to quash and suppress); (2) defendant was not proven guilty of the offenses beyond a

reasonable doubt; and (3) the trial court erred in admitting into evidence at defendant’s trial a

statement made by a confidential source that was contained in a video recording of one of the

controlled purchases of drugs that led, in part, to the issuance of the search warrant. We disagree

with defendant’s first and third arguments and agree with defendant’s second argument but only

as to one of the drug offenses. We, therefore, affirm the trial court’s judgment in part and reverse

the trial court’s judgment in part.

¶3 I. BACKGROUND

¶4 On March 19, 2018, David Ahramovich, a police officer assigned to the Kankakee Area

Metropolitan Enforcement Group (KAMEG), an agency that focused upon violations of the

Illinois drug laws, among other things, obtained a search warrant for the property located at 3593

South Main Street, Pembroke Township, Kankakee County, Illinois. The property at that address

had three structures on it: a white, one-story, single-family home (main residence); a white

mobile home with brown trim (mobile home); and a white camping trailer (camper). There were

two separate parcel identification numbers (PINs) for the property. One of the PINs ended in

008, and the other PIN ended in 009. The two parcels “[had] separate owners on record [with]

2 different tax billing addresses[ ] and no identifiable personal association.” The main residence

and the mobile home were located on the 008 parcel, and the camper was located on the 009

parcel. Defendant lived in the main residence. The search warrant authorized the search of the

main residence, the mobile home, the camper, the curtilage of the property, and any vehicles

located on the property for evidence of unlawful possession of a controlled substance with intent

to deliver and specifically identified the items to be seized. 1

¶5 Prior to obtaining the search warrant, Ahramovich had conducted two controlled

purchases of drugs from the property using a confidential source. The first purchase took place

on March 2, 2018, and the second purchase took place on March 9, 2018. Both purchases were

recorded on a hidden video camera that was worn by the confidential source. Prior to and after

each purchase, Ahramovich searched the confidential source and the source’s vehicle and

confirmed that the source did not have contraband or currency on his person or in his vehicle.

During the first purchase, the confidential source drove to the property, parked his vehicle, and

walked up to defendant, who was standing outside in the driveway area of the main residence

next to a Chevrolet Trailblazer sport utility vehicle (SUV), along with Jermalde Gaines and

Penny Day. 2 The source requested to purchase an amount of heroin, and defendant directed the

source to speak to Gaines. Gaines had the source drive Gaines to a location adjacent to the

property. At that location, the source gave Gaines $60 of prerecorded funds and asked Gaines to

1 The information about the search warrant provided here has been taken from the search warrant affidavit and complaint since it does not appear that the actual search warrant was made part of the record on appeal. The search warrant in the record is from a second search of the property that was subsequently conducted. The second search warrant had the affidavit and complaint for the first search warrant attached to it, along with the affidavit and complaint for the second search warrant. 2 At defendant’s bench trial, evidence was presented that suggested that the person the police thought was Penny Day was actually Gaines’s wife, Toni Gaines. It does not appear from the record, however, that the matter was ever resolved with complete certainty. 3 provide him with a “rig” (a hypodermic syringe) in addition to the drugs. While the source

remained in his vehicle, Gaines went inside both the mobile home and the camper. Gaines

returned to the source’s vehicle a short time later and gave the source a quantity of heroin in a

clear plastic bag and a syringe. The source left the premises and turned the heroin and syringe

over to Ahramovich.

¶6 During the second purchase, the confidential source drove to the property, got out of his

car, and walked up to the main residence. There was no one outside so the source knocked on the

door. A female subject answered the door. In response to the source’s question as to whether any

of the “guys” were there, the female subject directed the source to the camper “next door.” The

source drove over to where the camper was located and knocked on the door. Day answered the

door. The source requested to purchase $75 worth of heroin. Day invited the source into the

camper. Once the source was inside, Day removed a quantity of heroin from her bra, packaged

the heroin in a clear plastic wrapper, weighed the heroin, showed the weight to the source, and

then exchanged the heroin with the source for $75 of prerecorded funds. The source left the

premises and turned the heroin over to Ahramovich.

¶7 In addition to describing the two controlled purchases, in the search warrant affidavit and

complaint (referred to hereinafter as the search warrant affidavit), Ahramovich stated that in

February 2016, he had taken part in executing a search warrant on the property. Defendant and

other individuals were present in the main residence at that time. The main residence was

searched, and a quantity of cocaine and heroin were found in defendant’s bedroom, along with a

loaded handgun, a digital scale, and over $900 (in the bedroom and on defendant’s person).

Defendant waived his Miranda rights and admitted that the cocaine was his and that he had been

4 selling drugs from the residence. Defendant stated further to the police that he was holding the

heroin for someone else and that the gun belonged to a friend.

¶8 Ahramovich also described in the search warrant affidavit his training and experience as

a police officer. Ahramovich stated in the affidavit that based upon his past investigations and

through conversations with other officers, he had found that persons in possession of narcotics

and the proceeds of an illicit business would often secrete their goods, proceeds, and records in a

secure location where confederates and customers were denied access, including inside their

private residences. Based upon his training and experience and his conversations with other

officers, Ahramovich knew that persons involved with the delivery or sale of illicit drugs often

hid and stored their illicit drugs in various locations on their property in an attempt to avoid

seizure, including in the vehicles parked on the curtilage of their property. Based upon the

observations of agents as described in the search warrant affidavit, Ahramovich believed that the

two parcels (008 and 009) were being utilized as a single property with multiple individuals

working together to conduct the sale and distribution of controlled substances. Ahramovich also

believed that there was more heroin located on the curtilage of the property and in the structures

to be searched.

¶9 On March 21, 2018, Ahramovich and several other KAMEG officers executed the search

warrant at the property. During the search, quantities of drugs were recovered from defendant’s

person and from some of the vehicles on the property. Defendant was arrested and subsequently

charged with six drug offenses. Four of the offenses (counts I, II, III, and IV) were based upon

drugs that were recovered during the execution of the search warrant. The two remaining

offenses (counts V and VI) were based upon the drugs that had been sold to the confidential

5 source earlier in the month when defendant was present at the property (the first controlled

purchase).

¶ 10 In October 2019, defendant filed a motion to quash the search warrant that had been

issued and to suppress the evidence that had been recovered. In the motion, defendant asserted,

although somewhat ambiguously, that the evidence recovered from the property during the

March 2018 search should be suppressed because probable cause was lacking for the issuance of

the search warrant. The State filed a response and opposed the motion to quash and suppress,

claiming, in part, that the motion failed to allege any grounds that would justify suppressing the

evidence that was recovered.

¶ 11 In December 2019, a hearing was held on the motion to quash and suppress. Defendant

was present in court for the hearing and was represented by his attorney. At the outset of the

hearing, defense counsel called defendant to testify. As defense counsel was finishing his direct

examination of defendant, the trial court expressed some confusion as to what defense counsel

was trying to establish with regard to the search warrant (what defense counsel was claiming was

wrong with the search warrant). After some discussion between the trial court, the prosecutor,

and defense counsel, the trial court, without ruling upon the motion to quash and suppress, gave

defense counsel leave to file an amended motion (presumably, to add a claim that false

information had been presented by the police in obtaining the search warrant). Defense counsel,

however, never filed an amended motion.

¶ 12 Over four days in June 2020, a bench trial was held in defendant’s case. Defendant was

present in court for the trial and was represented by his attorney. Prior to the start of the trial, two

of the six offenses (counts III and VI) of which defendant had been charged were dismissed on

motion of the State.

6 ¶ 13 During its case-in-chief, the State presented the testimony of Ahramovich, two of the

other KAMEG officers that had taken part in the execution of the search warrant on the property,

and two forensic chemists who had tested the controlled substances that had been

obtained/recovered during the first controlled purchase and the execution of the search warrant.

The State also admitted into evidence numerous exhibits, including the controlled substances and

other items that were obtained/recovered during the first controlled purchase and the execution

of the search warrant, the video recording of the first controlled purchase, a copy of the search

warrant, the video recording of defendant’s statement to police that was taken after defendant

was arrested in the instant case, and numerous photographs that were taken when the current

search warrant was executed.

¶ 14 The testimony and exhibits admitted by the State at the bench trial established the

following information. With regard to the March 2, 2018, controlled purchase, the evidence

showed that the purchase had generally taken place in the manner that it was described by

Ahramovich in the search warrant affidavit as set forth above. After the purchase was completed,

the chunky substance that was recovered from the confidential source was submitted to the lab

where it was found to contain heroin and to have a weight of 0.201 grams.

¶ 15 As for the video recording of the first controlled purchase, Ahramovich testified during

the bench trial that prior to the controlled purchase, he confirmed that the hidden camera was

working properly by filming a short section of video, which Ahramovich referred to as a

“header.” During the header video, Ahramovich announced the correct date and time because the

date and time stamp produced by the video camera itself was incorrect and listed the year as

1970. The video camera did not have any buttons on it that would allow the user to edit the video

from the camera. In addition, the police officers did not have any equipment that would allow

7 them to see what was happening through the video camera as it was recording. Following the

controlled purchase, after the video camera was secured from the confidential source,

Ahramovich took the camera to the police station and downloaded the video from the camera to

the police server. The original video on the camera was then deleted due to memory constraints

on the camera. In court at the bench trial, Ahramovich testified that the video presented by the

State was a true and accurate reflection of what was recorded by the police’s equipment (the

hidden camera) on the date of the first controlled purchase.

¶ 16 During the bench trial, defendant objected to various portions of Ahramovich’s testimony

about the video recording. The State responded that the testimony was proper under the silent

witness doctrine. In a discussion about the matter, the trial court pointed out that some of the

objections that defendant was raising were the same objections that defendant had previously

raised in the motion to quash and suppress or in the hearing on the motion. After conferring with

the clerk and the attorneys, the trial court realized that it might not have ruled upon the motion

or, at the very least, that the record was unclear as to whether the trial court had ruled upon the

motion. The trial court stated, therefore, “Your motion—your objection is denied, Mr. [Defense

Counsel].”

¶ 17 Following the playing of a portion of the video recording for the trial court, the State

asked Ahramovich some questions about what was shown on that portion of the video recording.

Ahramovich testified as to which person in the video recording was defendant and which person

was Gaines. Ahramovich also identified in the video recording two of the vehicles, the

Trailblazer (referenced previously) and a Chevrolet Monte Carlo, that were parked on the

property. According to Ahramovich, the person who could be heard talking with a higher-pitched

voice on the video recording was the confidential source. Ahramovich stated further in his

8 testimony (on redirect examination) that in the video recording, the source initially approached

defendant and stated something and that defendant then pointed toward Gaines and told the

source to “follow him.” During another portion of the video, Ahramovich identified Gaines as

the person who had entered the confidential source’s vehicle. Ahramovich testified that when the

confidential source requested a “rig” from Gaines on the video recording, the source was

referring to a hypodermic syringe. When asked on the witness stand about the current

whereabouts of the confidential source, Ahramovich stated that he was no longer in contact with

the confidential source, who was from Indiana, and that he was unable to secure the source’s

presence for defendant’s bench trial.

¶ 18 As for the execution of the search warrant, the State’s evidence established that on

March 21, 2018, Ahramovich and several other KAMEG officers went to the property for that

purpose. The property was located in a vast rural wooded area and contained a shared driveway

with the neighboring residence, which had no connection to the instant case. To the right of the

driveway was the target property. As indicated above, the target property contained three

structures—the main residence, the mobile home, and the camper—and appeared, at least to the

officer who recovered all of the evidence during the execution of the search warrant, to be one

property (one parcel of real property). The mobile home was located behind the main residence,

and the camper was located to the right of the main residence.

¶ 19 As the officers were arriving at the property that day (Ahramovich was in a KAMEG

squad car), defendant was attempting to pull out of the driveway in the Trailblazer and another

vehicle, a large black Chevrolet Tahoe driven by Gaines, was driving through the yard. The

police officers stopped the two vehicles, detained or arrested defendant and Gaines, and searched

9 the property and the vehicles pursuant to the search warrant. Defendant’s person was also

searched incident to arrest.

¶ 20 Upon searching defendant’s person, the police officers found in defendant’s pocket a cell

phone, three packets of Suboxone (an opioid inhibitor that was usually prescribed to heroin

addicts), $824, and two bags of an off-white, rock-like substance. In the first bag there was no

additional packaging. In the second bag, however, the substance had been divided up into 19

individually-packaged smaller baggies. Both bags were later sent to the state police crime lab

(lab) for testing. The lab found that the first bag contained cocaine with a weight of 2.3 grams.

The lab individually tested 7 of the 19 baggies contained within the second bag and found that

the baggies contained cocaine with a combined total weight of 1.3 grams.

¶ 21 In addition to the items found on defendant’s person, numerous items were also found in

the vehicles on the property. In the back of the Trailblazer that defendant had been driving, the

police officers found, sitting out in the open, a clear plastic sandwich bag containing 23

individually-packaged baggies of an off-white substance. The bag was later submitted to the lab

for testing. The lab individually tested 7 of the 23 baggies and found that the baggies contained

heroin with a combined total weight of 3.1 grams. The police officers also found in the

Trailblazer a box of clear plastic sandwich bags and a digital scale in the back pocket of the front

passenger seat. Nothing of value was found in the Tahoe that Gaines had been driving. In the

Monte Carlo, which was still parked in the same place on the property where it had been seen

during the first controlled purchase, police officers found a bag containing four baggies of an off-

white substance. The bag had been shoved way back into the back of the vehicle’s glove

compartment. The bag was later submitted to the lab for testing. The lab individually tested two

10 of the four baggies and found that the baggies contained heroin with a combined total weight of

20.3 grams.

¶ 22 As for the three structures (the main residence, the mobile home, and the camper) on the

property, when the officers searched the main residence, they noticed that it had surveillance

cameras outside on every corner. The surveillance cameras fed into a digital video recorder

(DVR) that was located in the living room and were actively feeding live video to the DVR when

the officers entered the main residence. In addition to the DVR, inside the living room, the police

officers also found a loaded handgun, a wallet, and an identification card on the windowsill. The

identification card was for defendant. Additional ammunition of different calibers was found in

the kitchen of the home. In a bedroom or bedrooms in the home, the police officers found men’s

clothing and a letter from the Internal Revenue Service (IRS) addressed to defendant at the

address of the property.3 Outside, on the side of the main residence, the police officers found a

used syringe lying on the concrete. With regard to the mobile home, it does not appear from the

record that anything of evidentiary value was found when the search warrant was executed.

Finally, as for the camper, upon conducting their search, the police officers found a bag

containing numerous items of garbage and syringes.

¶ 23 Following his arrest on the date that the search warrant was executed, defendant waived

his Miranda rights and gave a brief video-recorded statement to the police. Defendant told the

police that the white house (the main residence) was his residence and that the address of the

house was 3593 South Main Street. According to defendant, when the officers arrived that day,

defendant was leaving the property in the Trailblazer to follow a person in a white truck. The

3 It is unclear from the record whether the men’s clothing and the IRS letter were found in the same bedroom. 11 person in the white truck had recently purchased the Trailblazer and had asked defendant to help

him take the Trailblazer to the shop. The person in the white truck had just left the property as

the police were arriving that day. During his video-recorded statement, defendant denied that he

knew anything about the heroin in the Trailblazer or in the Monte Carlo. Defendant stated that

the Monte Carlo belonged to a “buddy” of his. Defendant also stated that the person who owned

the Monte Carlo was “his cousin” and gestured toward the wall. There is no indication, however,

who defendant was referring to at that time or toward whom defendant was gesturing. Defendant

stated further in his statement to the police that the crack cocaine that was found in his pocket

was defendant’s and that it was for his own personal use. When asked about the gun that was

found in the main residence, defendant told the police that the gun belonged to his “granny,” and

that he never got rid of the gun after his “granny” had died. Defendant acknowledged that he had

moved the gun at one point when he was cleaning his “granny’s” room. When the police asked

defendant if he sold heroin or crack cocaine, defendant responded that he did not and that no one

could say that he had sold them anything or that he had put anything into their hand.

¶ 24 After the State rested its case-in-chief, defendant testified on his own behalf. Defendant

stated that he had lived at the current address, 3593 South Main Street, since about 2014.

Defendant stayed at that address with his fiancée. The property was owned by Callie Jones and

William Frazier (who was defendant’s fiancée’s father). Frazier would stay at times in the main

residence and would also stay in the mobile home on the property. Gaines lived next door to

defendant in the camper on lot 9. Defendant thought that the address for the camper property was

3610 South Main Street. The lot that the camper was on was owned by Gaines’s friends. Gaines

would come over at times and chat with defendant, since defendant and Gaines were neighbors.

12 ¶ 25 On the date of the first controlled purchase (March 2, 2018), defendant was present at his

residence, along with Gaines; Gaines’s wife, Toni Gaines; and two other people. Toni was the

person that the police were incorrectly referring to as Penny Day. Day had not been at the

property since 2016. While Gaines was at defendant’s property, a person (the confidential

source) drove up in a vehicle. Defendant, Gaines, and Toni were standing outside defendant’s

residence at that time by one of the vehicles that were parked on the property. As the person

walked up to defendant, defendant thought that Gaines had called the person over to Gaines.

Defendant denied that he had told the person to go over to Gaines. Rather, according to

defendant, he was giving the person a weird look because he did not recognize the person and

did not know why the person was walking up to him. Gaines and the person left the premises and

drove over to Gaines’s property. Defendant did not know what happened after that point between

Gaines and the other person and was not involved in any of that. According to defendant, a drug

transaction did not take place at defendant’s residence or property that day, and defendant was

not engaged in a drug transaction.

¶ 26 As defendant’s testimony continued, defendant stated that on March 21, 2018 (the date

that the search warrant was executed), at around 1 p.m., KAMEG officers raided defendant’s

property. Prior to the officers’ arrival, defendant and Gaines were standing outside. As Gaines

walked off, defendant saw the police vehicles approaching. The Trailblazer and the Monte Carlo

were both present on defendant’s property that day, and defendant was standing next to the

Trailblazer.

¶ 27 As the police officers approached, one of the officers, Officer English, jumped out of the

police vehicle and ordered defendant to put his hands in the air. Defendant did so. English

grabbed defendant’s arm and put it behind defendant’s back. Defendant was high and shook up

13 when that occurred and could not recall on the witness stand if he was getting ready to drive the

Trailblazer or if he was just standing there. 4 The police officers put defendant in handcuffs.

Defendant asked to see the search warrant or the probable cause for searching the property, but

he was not allowed to see the search warrant at that time. English asked defendant if he had

anything on his person, and defendant told English that he had a little bit of crack in his pocket

for personal use. The police officers recovered the crack cocaine from defendant’s person and

took defendant to jail.

¶ 28 Defendant admitted on the witness stand that he did have cocaine in his pocket when the

search warrant was executed. Defendant stated that he had purchased the cocaine from Gaines

shortly before the raid occurred. Defendant knew that Gaines was a drug dealer and also knew,

based upon the traffic going in and out of Gaines’s yard, that Gaines sold heroin. Defendant did

not know, however, whether Gaines’s wife, Toni, sold drugs as well. Defendant had a crack

cocaine problem, and Gaines was the person who sold crack cocaine to defendant. Defendant did

not use heroin or have a heroin problem. Defendant had no idea as to Gaines’s current

whereabouts.

¶ 29 During his testimony, when defendant was asked more specifically about the Monte

Carlo, he stated that he did not know anything about the vehicle and that the vehicle did not

belong to anyone at defendant’s residence (the main residence). According to defendant, Frazier

and Gaines had something going on with the Monte Carlo, but defendant did not know what it

was. Frazier had told Gaines that he could park the vehicle in that location on defendant’s

property where it would not be in the way. Gaines did not have room for the vehicle on his own

4 Defendant stated later in his testimony that the Tahoe had been sold so he was going to follow Gaines in the Trailblazer, apparently to deliver the Tahoe to whomever had bought it.

14 property with all of the traffic that he had to his property. There were four vehicles on

defendant’s property, and defendant did not own any of them.

¶ 30 As for some of the other items that were found on defendant’s property during the

execution of the search warrant, defendant stated that the cameras had been up on the outside of

the main residence since the last police raid in 2016. The gun in the living room belonged to

defendant’s fiancée’s grandmother, who had since passed away. Defendant had placed the gun

on the fish tank in the living room behind the windowsill.

¶ 31 At the conclusion of the bench trial, after all of the evidence had been presented and the

attorneys had made their closing arguments, the trial court found defendant guilty of counts I, II,

IV, and V. In announcing its ruling, the trial court stated as follows:

“I think it’s very clear from the evidence that 3953 [sic] South Main in Pembroke

was a location where there was significant drug dealing taking place.

It—there was a drug dealing operation there. The cameras on every corner

of the outside of the house. A loaded—this isn’t just some gun that a relative has

bequeathed or—or left. I mean, this is a loaded gun and—and chambered in the

front window near a security monitor.

This is a house that on March 2nd the CS goes to to buy drugs. And I do

find it persuasive that virtually the only words spoken by the defendant when the

CS arrived was—what was it, ‘over there’ or ‘follow him’? I guess ‘follow him.’

And then—and then the evidence is that, from the video—which is

admitted under the silent witness doctrine—the CS and Jermalde Gaines drove

next door to the camper and that the—Jermalde Gaines then produced and gave to

the CS a quantity of heroin and a syringe.

15 And there’s syringes all over the place. There’s a syringe outside the white

house, Mr.—Mr. Lumpkins’ house. There’s a syringe outside. There’s a bag of

syringes in the house that Jermalde Gaines had gone to back on March the 2nd.

The—there’s a syringe that was given to the—given to the CS at the time of the

purchase.

So when the—and then when the search warrant is executed, frankly, there

are drugs everywhere.

The defendant, who is significantly impeached here because he told the

police that he was driving the vehicle—he certainly said he was in the—you

cannot misinterpret what he said.

At minimum, he was inside of a vehicle at the time that KAMEG arrived.

Yet he testifies that, No, I was never inside the vehicle. That’s not believable.

And the—in fact, and it’s not believable that the defendant would be

unaware that there are drugs everywhere on this property. Everywhere? Why do I

say that? Well, there was cocaine in his pocket. You had two quantities. You had

the—a single quantity in one bag. And then you had 19 packets. You said it’s

personal use. I don’t believe that, not with the 19 packets.

In the vehicle that he was driving, he had bags and a digital scale in the

back pocket of the front passenger seat. And then in the rear of that—of that

vehicle, there is the—the bag of—the bag of heroin.

And this is the quantity of—oh, let’s see. This is the—oh, that’s the 23

bags or 3.1 grams of heroin. The cocaine consisted of 2.3 grams in one bag. And

16 then the 19 packets consisted of 1.3 grams. It certainly was—so the total was over

1 gram.

The—the heroin in the back of the vehicle that the defendant was driving

when KAMEG arrived weighed—netted out at 3.1 grams and tested positive for

heroin. And that consisted of 23 bags.

The 3.1 grams was the quantity that was measured random—from the

random taking of seven—I guess it was seven bags—seven or eight bags that the

analyst chose to analyze.

It’s preposterous to try to shift the responsibility for these drugs being in

the back of his vehicle at a time that he had cocaine in his pocket, Suboxone in his

pocket, a digital scale, and bags in the rear passen- --in the front passenger seat,

the back pocket.

It’s preposterous to say that, Well, gee, the—the heroin came from the—

the police planting it. That’s not believable at all. There’s no evidence of that.

And I think that the State’s argument that what the defendant did was

probably just tossed it into the back is the most likely explanation for somebody

driving around in a SUV with a bag of heroin just openly in back.

But the—the issue here is not to explain exactly how that got there.

What—what’s obvious is that the defendant had to know it was there.

And I do believe that it’s a reasonable inference that when he saw that he

was being closed in by the KAMEG vehicles, that he simply tried to—tried to

hide it in the back thinking that, you know, maybe—well, thinking that was

probably the best thing he could do to try to avoid being caught with it.

17 So I don’t think there’s any—I don’t think there’s any question here as to

the defendant’s guilt. And I think that the State has proven the defendant guilty by

proof beyond a reasonable doubt on the charges.

I do want to mention the—the Monte Carlo because there is a significant

quantity of 20 grams of heroin in the glove compartment. And that does—that

does take the possession with the intent of heroin from a Class 1 to a Class X

when you add that 20 grams.

But I think it’s—I think—I think it is a reasonable inference to be drawn

from all of the evidence that the defendant had constructive possession, knowing

possession of the heroin in the glove compartment of the Monte Carlo.

Again, it’s clear that this was a—this was a location where drugs were

being sold.

And, I mean, bags everywhere. Extra needles, you need those? Just go

next door. There’s a bag of needles. Need extra bags or scales? Just look in the

back of the—just look in the vehicle the defendant’s driving. Extra ammunition?

You know, that’s hiding in the kitchen.

It’s clear that the defendant had not only constructive possession of the

Monte Carlo in his driveway, which we know was there for a period of at least 20

days, but also knowledge that it contained a quantity of heroin for distribution.”

¶ 32 Defendant filed a motion to vacate the convictions or for a new trial and challenged the

issuance of the search warrant, the sufficiency of the evidence, and the admission of the video

recording from the March 2, 2018, controlled purchase. The trial court subsequently denied the

motion. Following a sentencing hearing, the trial court sentenced defendant to concurrent prison

18 terms of nine years on count I, five years on counts II and IV, and three years on count V.

Defendant appealed.

¶ 33 II. ANALYSIS

¶ 34 A. Motion to Quash Search Warrant and Suppress Evidence

¶ 35 As his first point of contention on appeal, defendant argues that the trial court erred in

denying defendant’s motion to quash the search warrant that had been issued in this case and to

suppress the evidence that had been recovered. Defendant asserts that his motion to quash and

suppress should have been granted because the search warrant affidavit failed to establish

probable cause to search defendant’s property (the 008 property). More specifically, defendant

contends that probable cause was lacking as to his property because he was not the person who

sold the drugs to the confidential source during the two controlled purchases referred to in the

search warrant affidavit and because the two controlled purchases took place on a completely

separate property (the 009 property) and not on defendant’s property (the 008 property). Thus,

defendant contends that there was no nexus between the drug transactions, defendant, and

defendant’s property. Defendant asserts further that the remaining information contained in the

search warrant affidavit—the information about the 2016 search of defendant’s property—was

stale since the 2016 search took place more than two years prior to the search warrant application

in the instant case and since there was no evidence that defendant was involved in a continuing

course of criminal conduct. Rather, defendant maintains, the search warrant affidavit showed that

his only involvement in the two controlled purchases was that he refused to speak to the

confidential source when the source initially walked up on defendant’s property during the first

controlled purchase and that defendant directed the source to speak to Gaines at that time. For

those reasons, defendant asks that we reverse the trial court’s denial of defendant’s motion to

19 quash and suppress. In addition, because the State would be unable to prove counts I, II, and IV

without the suppressed evidence, defendant also asks that we reverse outright his convictions on

counts I, II, and IV.

¶ 36 The State argues that the trial court’s denial of defendant’s motion to quash and suppress

was proper and should be upheld. In support of that argument, the State contends first that

defendant has forfeited his assertions on this issue because defendant failed to file an amended

motion to quash and suppress, failed to request a probable cause determination, and failed to

raise some of his assertions in either his motion to quash and suppress or in his posttrial motion.

Second, and in the alternative, the State contends that even if defendant did not forfeit his

assertions on this issue, the trial court’s denial of defendant’s motion to quash and suppress

should still be upheld because the information contained in the search warrant affidavit was

sufficient to establish probable cause to search defendant’s property and was not stale. The State

asks, therefore, that we affirm the trial court’s denial of defendant’s motion to quash and

suppress and that we affirm defendant’s convictions.

¶ 37 In reply to the State’s claim of forfeiture, defendant asserts that he properly preserved this

issue by arguing in his motion to quash and suppress in the trial court that probable cause was

lacking for the issuance of a search warrant for defendant’s property and by also raising the

search warrant issue in his posttrial motion. In the alternative, defendant asserts that even if he

failed to properly preserve this issue for appellate review, this court should still reach the merits

of this issue, nevertheless, as a matter of first prong plain error because the evidence in this case

was closely balanced. For those reasons and for the reasons initially stated, defendant again asks

that we reverse the trial court’s denial of defendant’s motion to quash and suppress and that we

reverse outright defendant’s convictions on counts I, II, and IV.

20 ¶ 38 A reviewing court applies a two-part standard of review to a trial court’s ruling on a

motion to quash a search warrant and suppress evidence. See People v. Manzo, 2018 IL 122761,

¶ 25; People v. Padilla, 2021 IL App (1st) 171632, ¶ 70. The trial court’s findings of fact are

given great deference and will not be reversed on appeal unless they are against the manifest

weight of the evidence. See Manzo, 2018 IL 122761, ¶ 25; Padilla, 2021 IL App (1st) 171632,

¶ 70. However, as to the trial court’s ultimate decision granting or denying the motion, de novo

review applies. See Manzo, 2018 IL 122761, ¶ 25; Padilla, 2021 IL App (1st) 171632, ¶ 70; but

see Illinois v. Gates, 462 U.S. 213, 236 (1983) (indicating that an issuing judge’s determination

of probable cause for a search warrant should be paid great deference by the reviewing court and

should not be reviewed de novo on appeal). In reviewing the issuance of a search warrant, a

reviewing court may not substitute its judgment for that of the issuing judge but must decide

whether the issuing judge had a substantial basis for concluding that probable cause existed.

Manzo, 2018 IL 122761, ¶ 31; Padilla, 2021 IL App (1st) 171632, ¶¶ 70-71, 89.

¶ 39 The fourth amendment to the United States Constitution guarantees the right of the

people to be free from unreasonable searches and seizures. See U.S. Const., amend. IV; Manzo,

2018 IL 122761, ¶ 26; see also Elkins v. United States, 364 U.S. 206, 213 (1960) (indicating that

the fourth amendment prohibition against unreasonable searches and seizures is applicable to

state officers through the fourteenth amendment). As part of that protection, the fourth

amendment provides that no warrant shall issue except upon probable cause. See U.S. Const.,

amend. IV; Manzo, 2018 IL 122761, ¶ 26. Article I, section 6, of the Illinois Constitution

provides similar protection. See Ill. Const. 1970, art. I, § 6; Manzo, 2018 IL 122761, ¶ 27.

Illinois courts interpret the search and seizure clause of the Illinois Constitution in limited

lockstep with that of the federal constitution. See Manzo, 2018 IL 122761, ¶ 27. Thus, under

21 both the federal and state constitutions, a search warrant must be supported by probable cause to

be valid. See U.S. Const., amend. IV; Ill. Const. 1970, art. I, § 6; Manzo, 2018 IL 122761, ¶ 28.

¶ 40 The test for probable cause for a search warrant is a totality of the circumstances test. See

Manzo, 2018 IL 122761, ¶ 29; Padilla, 2021 IL App (1st) 171632, ¶¶ 69, 71. Pursuant to that

test, probable cause for a search warrant exists if the totality of facts and circumstances known to

the affiant at the time the search warrant is sought is sufficient to warrant a person of reasonable

caution to believe that the law was violated and that evidence of that violation is on the premises

to be searched. Manzo, 2018 IL 122761, ¶ 29; Padilla, 2021 IL App (1st) 171632, ¶¶ 69, 71;

People v. Beck, 306 Ill. App. 3d 172, 177-78 (1999). In other words, for probable cause for a

search warrant to be present, there must be a sufficient nexus or connection between a criminal

offense, the place to be searched, and the items to be seized. See Manzo, 2018 IL 122761, ¶ 35;

Beck, 306 Ill. App. 3d at 178-79; People v. McCoy, 135 Ill. App. 3d 1059, 1066 (1985). The

proof of that connection may be established by direct information or by reasonable inferences.

See Beck, 306 Ill. App. 3d at 179; McCoy, 135 Ill. App. 3d at 1066. It is the probability of

criminal activity, rather than proof beyond a reasonable doubt, that is the standard for

determining whether probable cause exists for the issuance of a search warrant. Manzo, 2018 IL

122761, ¶ 29; Beck, 306 Ill. App. 3d at 178. The determination of probable cause must be made

on a case-by-case basis and is governed by factual and practical commonsense considerations,

not by technical legal rules. Manzo, 2018 IL 122761, ¶ 30; Padilla, 2021 IL App (1st) 171632,

¶¶ 69-70, 89; Beck, 306 Ill. App. 3d at 178. The sufficiency of a search warrant affidavit rests

upon whether, when the affidavit is considered as a whole, it adequately establishes a fair

probability that evidence of a crime would be found in a particular place. Beck, 306 Ill. App. 3d

at 178.

22 ¶ 41 In some instances, the facts alleged in a search warrant affidavit may have occurred too

long ago to provide probable cause for the issuance of a search warrant. See id. at 179. There is

no set cutoff period, however, for when the facts alleged will become stale and when probable

cause will cease to exist. McCoy, 135 Ill. App. 3d at 1067; People v. Donath, 357 Ill. App. 3d 57,

64 (2005). Rather, the absence of a rigid cutoff period allows the issuing judge to exercise his or

her informed judgment as to the matter. Donath, 357 Ill. App. 3d at 64. Although the decision

must be made based upon the unique circumstances of each case, the single most important

factor in determining whether the information contained in a search warrant affidavit is valid or

stale is whether the defendant was engaged in a continuing course of criminal conduct. See Beck,

306 Ill. App. 3d at 179; McCoy, 135 Ill. App. 3d at 1067.

¶ 42 Ultimately, the question of whether probable cause exists to justify the issuance of a

search warrant must be resolved by a detached judicial officer based upon the above-described

totality of the circumstances test. See Manzo, 2018 IL 122761, ¶ 29; Padilla, 2021 IL App (1st)

171632, ¶ 71. Hearsay information may be considered as long as a substantial basis is presented

for crediting the hearsay information. See Padilla, 2021 IL App (1st) 171632, ¶ 69. Doubtful or

marginal cases should largely be determined by the preference to be accorded to search warrants.

See Manzo, 2018 IL 122761, ¶ 31; Padilla, 2021 IL App (1st) 171632, ¶ 71. If a search warrant

affidavit provides a substantial basis for the issuing judge’s probable cause finding, a reviewing

court will affirm the trial court’s denial of a defendant’s motion to quash and suppress. See

Manzo, 2018 IL 122761, ¶ 31; Padilla, 2021 IL App (1st) 171632, ¶ 71.

¶ 43 In the present case, after reviewing the record of the trial court proceedings, we find that

defendant properly preserved the search warrant issue for appellate review and did not forfeit

that issue. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (noting that to preserve an error for

23 appellate review, a defendant must object to the error at trial and include the error in a written

posttrial motion); People v. Allen, 222 Ill. 2d 340, 350 (2006) (same). Defendant raised the issue

of probable cause in his motion to quash and suppress, albeit somewhat ambiguously, and also

raised the issue in his posttrial motion to vacate the convictions or to obtain a new trial.

¶ 44 Turning to the merits of defendant’s claim, upon reviewing the search warrant affidavit in

this case, we find that the search warrant was supported by probable cause to believe that

evidence of unlawful possession of a controlled substance with intent to deliver would be found

on defendant’s property. In the search warrant affidavit, Officer Ahramovich described the

circumstances of the two controlled purchases of heroin that had recently been made and had

originated at defendant’s property. Defendant had been present for the start of the first controlled

purchase and had directed the confidential source to meet with Gaines almost immediately after

the source had walked up on the property. In addition, during the first purchase, Gaines was seen

by the confidential source going into both the mobile home on defendant’s property and the

camper on Gaines’s property just prior to making the sale to the source, a fact that defendant

ignores here. Along with a description of the two controlled purchases, Ahramovich also

provided in the search warrant affidavit a description of his training and experience as a police

officer and stated that he knew from that training and experience and his conversations with

other police officers that people who sold drugs tended to keep the drugs, currency, and records

in secure locations, such as in their own residences or in vehicles parked on their properties.

Furthermore, Ahramovich presented in the search warrant affidavit his knowledge of the

execution of the 2016 search warrant where drugs, money, and a gun were found in the main

residence and where defendant had admitted that he had been selling drugs out of the residence.

That information was not stale when considered along with the two recent controlled purchases,

24 which arguably showed that drug sales involving defendant were still taking place on the

property as part of a continuing course of criminal conduct. See Beck, 306 Ill. App. 3d at 179

(indicating that the most important factor in determining whether information contained in a

search warrant affidavit is valid or stale is whether the defendant was involved in a continuing

course of criminal conduct); McCoy, 135 Ill. App. 3d at 1067 (same). Although the

circumstances of the property in this case were somewhat unusual in that the property was

comprised of two parcels that had separate PINs and different owners of record, that information

was accurately presented to the trial court in the search warrant affidavit so that the trial court

could make its own determination of whether probable cause existed to support a search of the

property. Based upon the totality of the facts and circumstances present in this case, we find that

the instant search warrant affidavit provided the issuing judge with a substantial basis to

conclude that probable cause existed for the issuance of a search warrant for defendant’s

property. See Manzo, 2018 IL 122761, ¶ 31; Padilla, 2021 IL App (1st) 171632, ¶¶ 70-71, 89.

We therefore affirm the trial court’s denial of defendant’s motion to quash the search warrant

and to suppress the evidence. See Manzo, 2018 IL 122761, ¶ 31; Padilla, 2021 IL App (1st)

171632, ¶¶ 70-71, 89.

¶ 45 In reaching that conclusion, we have reviewed and considered People v. Rojas, 2013 IL

App (1st) 113780, the main case relied upon by defendant to support his argument on this issue,

and have found that case to be distinguishable from the instant case. In the instant case, unlike in

Rojas, there was both direct and inferential evidence set forth in the search warrant affidavit to

establish that defendant was involved in criminal drug activity and that evidence of that activity

could be found in defendant’s residence and in the vehicles and other buildings on the property.

Compare id. ¶¶ 18-20. Although the configuration of the property was unusual, Ahramovich

25 explained in the affidavit why he believed that the two parcels were being used as a single

property with multiple individuals working together to conduct the sale and distribution of

controlled substances and provided specific details in the affidavit to support his belief in that

regard. Unlike the search warrant affidavit in Rojas, the search warrant affidavit in the present

case provided ample information for the trial court to determine that probable cause existed to

justify issuing a search warrant for defendant’s property. Compare id.

¶ 46 B. Proof Beyond a Reasonable Doubt

¶ 47 As his second point of contention on appeal, defendant argues that he was not proven

guilty beyond a reasonable doubt of the four drug offenses. More specifically, defendant asserts

that he was not proven guilty of counts I (the heroin recovered from the Monte Carlo) and II (the

heroin recovered from the Trailblazer) because the State failed to establish that defendant had

knowledge and possession of the controlled substances; that he was not proven guilty of count V

(the heroin delivered to the confidential source during the first controlled purchase) because the

State failed to establish that defendant was accountable for the actions of Gaines; and that he was

only proven guilty of simple possession, and not possession with intent to deliver, in count IV

(the cocaine found on defendant’s person). Defendant asks, therefore, that we reverse outright his

convictions on counts I, II, and V and that we reduce defendant’s conviction on count IV to

simple possession.

¶ 48 The State disagrees with defendant’s assertions and argues that, when viewed in the light

most favorable to the State, the evidence was sufficient to prove defendant guilty of all four drug

offenses beyond a reasonable doubt. The State asks, therefore, that we affirm defendant’s

convictions.

26 ¶ 49 Pursuant to the Collins standard (People v. Collins, 106 Ill. 2d 237, 261 (1985)), a

reviewing court faced with a challenge to the sufficiency of the evidence must view the evidence

in a light most favorable to the prosecution and determine whether any rational trier of fact could

have found the elements of the crime proven beyond a reasonable doubt. People v. Jackson, 232

Ill. 2d 246, 280 (2009). In applying the Collins standard, the reviewing court will allow all

reasonable inferences from the record in favor of the prosecution. People v. Bush, 214 Ill. 2d

318, 326 (2005). The reviewing court will not retry the defendant. People v. Austin M., 2012 IL

111194, ¶ 107. Determinations of witness credibility, the weight to be given testimony, and the

reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact, not

the reviewing court. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Thus, the Collins standard of

review fully recognizes that it is the trier of fact’s responsibility to fairly resolve conflicts in the

testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate

facts. See Jackson, 232 Ill. 2d at 281. That same standard of review is applied by the reviewing

court regardless of whether the evidence is direct or circumstantial or whether defendant

received a bench or a jury trial, and circumstantial evidence meeting that standard is sufficient to

sustain a criminal conviction. Id.; People v. Kotlarz, 193 Ill. 2d 272, 298 (2000). When applying

the Collins standard, a reviewing court will not reverse a defendant’s conviction unless the

evidence is so improbable, unsatisfactory, or inconclusive that it leaves a reasonable doubt of the

defendant’s guilt. Austin M., 2012 IL 111194, ¶ 107.

¶ 50 In the instant cases, as indicated above, defendant challenges the sufficiency of the proof

as to the elements of some of the offenses and as to defendant’s accountability for the actions of

Gaines. Starting with the elements of the offenses, we note that to sustain a charge of unlawful

possession of a controlled substance with intent to deliver, the State must prove the following

27 three elements beyond a reasonable doubt: (1) that the defendant had knowledge of the presence

of the controlled substance (the knowledge element); (2) that the controlled substance was in the

immediate possession or control of the defendant (the possession element); and (3) that the

defendant intended to deliver the controlled substance (the intent to deliver element). See 720

ILCS 570/401 (West 2018); People v. Robinson, 167 Ill. 2d 397, 407 (1995). The knowledge

element of the offense may be established by evidence of acts, declarations, or conduct from

which it may fairly be inferred that the defendant knew of the existence of the controlled

substance in the place where it was found. See People v. Bell, 53 Ill. 2d 122, 126 (1972); People

v. McLaurin, 331 Ill. App. 3d 498, 502 (2002).

¶ 51 The possession element may be proven by evidence that defendant was either in actual or

constructive possession of a controlled substance. See People v. Adams, 242 Ill. App. 3d 830,

832 (1993). Although possession of a controlled substance must be exclusive, it may be joint

between two or more people. See People v. Brown, 277 Ill. App. 3d 989, 997 (1996). To prove

actual possession, the State must show that the defendant exercised physical dominion over the

controlled substance, such as by having the substance on his person or by trying to conceal or

dispose of the substance. People v. Ray, 232 Ill. App. 3d 459, 461 (1992). To establish

constructive possession, on the other hand, the State must show that the defendant had control

over the area (the premises or a vehicle, for example) where the controlled substance was found.

See Adams, 242 Ill. App. 3d at 832; Ray, 232 Ill. App. 3d at 462-63; People v. McNeely, 99 Ill.

App. 3d 1021, 1024-25 (1981). Proof of such control gives rise to an inference that the defendant

had both knowledge and possession of the controlled substance. See People v. Nettles, 23 Ill. 2d

306, 308-09 (1961). That inference may be sufficient to sustain a criminal conviction, absent

other facts and circumstances that might leave a reasonable doubt of the defendant’s guilt in the

28 trier of fact’s mind. See id. While evidence establishing constructive possession is often entirely

circumstantial (McLaurin, 331 Ill. App. 3d at 502), a defendant’s mere proximity to the

controlled substance or presence upon the premises or in the vehicle where the controlled

substance is found, with nothing more, is not sufficient to establish constructive possession (see

Adams, 242 Ill. App. 3d at 832).

¶ 52 As for the intent to deliver element of the offense (that the defendant had the intent to

deliver the particular controlled substance), the determination of whether the evidence presented

at trial was sufficient to prove that element must be made on a case-by-case basis considering all

of the relevant facts and circumstances involved. See Robinson, 167 Ill. 2d at 412-13. There are

too many different types of controlled substances and too many different possible factual

situations for a bright-line test to apply. See id. at 414. Because direct evidence of intent to

deliver rarely exists, it must usually be proven by circumstantial evidence. Id. at 408. Some of

the factors that Illinois courts have considered to be probative of intent to deliver include

whether the quantity of the controlled substance in defendant’s possession is too large to be

viewed as being for personal consumption; the high purity of the controlled substance

confiscated; the possession of weapons; the possession of large amounts of cash; the possession

of police scanners; the possession of drug paraphernalia; and the manner in which the controlled

substance is packaged. Id. Although the quantity of a controlled substance or the manner of

packaging alone may be sufficient to prove the intent to deliver, when the amount of the

substance or the manner of packaging is consistent with personal use, courts have required

additional evidence of intent to deliver to support a conviction. See id. at 410-14.

¶ 53 Finally, with regard to the accountability aspect of this case, we are mindful that under

Illinois law, a person is legally accountable for the conduct of another if “either before or during

29 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 2018); see also People v. Taylor, 164 Ill. 2d 131, 140

(1995). A person’s mere presence at the scene of a crime does not make that person accountable

for the offense. Taylor, 164 Ill. 2d at 140. In addition, a person’s presence at the scene and

knowledge that a crime was being committed, without more, is also insufficient to establish

accountability. Id. That stated, active participation has never been required for the imposition of

criminal guilt under an accountability theory—one may aid and abet without actively

participating in the overt act. Id. A defendant may be found to be accountable for acts performed

by another person if the defendant shared the criminal intent of that other person (the principal)

or if there was a common criminal purpose or plan. Id. at 140-41. Words of agreement are not

required to establish a common criminal purpose. Id. at 141. Rather, a common purpose may be

inferred from the facts and circumstances surrounding the commission of the unlawful conduct.

Id. Proof that the defendant was present during the commission of the offense, that he maintained

a close affiliation with his companions after the crime was committed, and that he failed to report

the crime are all factors that the trier of fact may consider in determining whether the defendant

is legally accountable for the crime. Id. The fact that the defendant fled from the scene of the

crime may also be considered in determining whether a defendant may be held accountable for

the acts of another. Id. Evidence that defendant voluntarily attached himself to a group bent on

illegal acts with knowledge of the group’s common purpose supports an inference that the

defendant shared the common purpose and will sustain the defendant’s conviction for an offense

committed by another. Id.

30 ¶ 54 In the present case, viewing the evidence in the light most favorable to the State, we find

that the evidence was sufficient to prove defendant guilty of counts II (the heroin found in the

Trailblazer), IV (the cocaine found on defendant’s person), and V (the heroin delivered to the

confidential source). In explaining the reasons for our conclusion in that regard, we will address

only those elements of each offense that defendant has challenged in this appeal. As to count II,

contrary to defendant’s assertion on appeal, the evidence was sufficient to establish that

defendant had constructive possession of the heroin found in the Trailblazer. See Nettles, 23 Ill.

2d at 308-09; Adams, 242 Ill. App. 3d at 832; Ray, 232 Ill. App. 3d at 462-63; McNeely, 99 Ill.

App. 3d at 1024-25. The Trailblazer was present on defendant’s property when the first

controlled purchase took place and was again present on defendant’s property nearly three weeks

later when the search warrant was executed. Defendant was driving the Trailblazer and

attempting to leave the property when the officers arrived to execute the search warrant, conduct

that could arguably suggest that defendant was trying to evade the police. The heroin was found

sitting out in the open in the back of the Trailblazer immediately after defendant was removed

from the vehicle or shortly thereafter. Although defendant claims on appeal that the drugs were

found in the trunk of the vehicle and there was some testimony to that effect at the trial, that

description was inaccurate since the Trailblazer was an SUV and did not have a trunk. As the

driver and sole occupant of the vehicle, defendant had control over the area where the heroin was

found, regardless of whether defendant actually owned the vehicle. See McNeely, 99 Ill. App. 3d

1024-25. In addition, the trial court, as the trier of fact, agreed with the State’s theory that

defendant had likely tossed the heroin to the back of the vehicle when he realized that he was

going to be stopped by the police. Furthermore, defendant provided false information, either in

his statement to the police or in his testimony at the bench trial, or both, and the trial court’s

31 comments in its ruling at the bench trial indicate that the court found defendant’s testimony not

to be credible. Taking together all of the evidence that was presented in this case of defendant’s

knowledge and possession of the heroin found in the Trailblazer and considering that evidence in

the light most favorable to the State, we conclude that the evidence was sufficient to prove

defendant guilty beyond a reasonable doubt of possession of heroin with intent to deliver as

alleged in count II of the charging instrument. See Collins, 106 Ill. 2d at 261; Jackson, 232 Ill. 2d

at 280; Nettles, 23 Ill. 2d at 308-09; Adams, 242 Ill. App. 3d at 832; Ray, 232 Ill. App. 3d at 462-

63; McNeely, 99 Ill. App. 3d at 1024-25; People v. Peete, 318 Ill. App. 3d 961, 966 (2001)

(indicating that evidence of flight may be considered by the trier of fact as tending to show the

defendant’s consciousness of guilt). The evidence of defendant’s knowledge and possession of

the heroin in the Trailblazer was not so improbable, unsatisfactory, or inconclusive that it left a

reasonable doubt of the defendant’s guilt. See Austin M., 2012 IL 111194, ¶ 107. We, therefore,

affirm defendant’s conviction on count II.

¶ 55 With regard to count IV (the cocaine found on defendant’s person), despite defendant’s

claim to the contrary, we find that the evidence was sufficient to prove that defendant possessed

the substance with the intent to deliver. See Robinson, 167 Ill. 2d at 408-14. As the trial court

aptly found, the evidence in this case showed that the property (defendant’s house, the mobile

home, and the camper) was being used to conduct a drug-sales business. Cocaine was found on

defendant’s person, and heroin was found in the Trailblazer that defendant had been driving.

Both sets of drugs were packaged in a manner that was indicative of drug sales, rather than

personal use, and there was more than one type of drug involved. In addition to the manner in

which the substances were packaged and the multiple types of drugs found, other indications of

intent to deliver were also present. See id. A loaded gun was found in the living room of

32 defendant’s residence and ammunition was found in the kitchen. Video cameras (a surveillance

system) were found mounted on the outside corners of defendant’s residence. The cameras fed

live video into a DVR that was also located in defendant’s living room and that was actively

working at the time the search warrant was executed. A box of sandwich bags and a digital scale

were found in the Trailblazer that defendant had been driving, along with the heroin that was

recovered from that vehicle. A large amount of cash was found on defendant’s person, and

syringes were found in various locations on the property. Furthermore, as noted above, defendant

provided false information in his statement to the police or in his trial testimony, or both, and the

trial court at the bench trial found defendant’s testimony not to be credible. Taking together all of

the evidence of intent to deliver that was presented in this case and considering that evidence in

the light most favorable to the State, we find that the evidence was sufficient to prove defendant

guilty beyond a reasonable doubt of unlawful possession of cocaine with intent to deliver as

alleged in count IV of the charging instrument. See Collins, 106 Ill. 2d at 261; Jackson, 232 Ill.

2d at 280; Robinson, 167 Ill. 2d at 408-14. The evidence of the defendant’s intent to deliver the

cocaine found on his person was not so improbable, unsatisfactory, or inconclusive that it left a

reasonable doubt of the defendant’s guilt. See Austin M., 2012 IL 111194, ¶ 107. We, therefore,

affirm defendant’s conviction on count IV.

¶ 56 As for count V (the heroin delivered to the controlled source during the first controlled

purchase), contrary to defendant’s assertion on appeal, we find that the evidence was sufficient to

establish that defendant was accountable for the acts committed by Gaines during the first

controlled purchase. See Taylor, 164 Ill. 2d at 140-41. The evidence presented in the bench trial

in this case showed that the confidential source had entered upon defendant’s property to

purchase heroin; that almost immediately after the confidential source had walked up to

33 defendant, defendant had directed the confidential source to follow Gaines; that defendant

maintained close proximity with Gaines after the first controlled purchase had occurred and was

apparently with Gaines on the property when the search warrant was executed; that defendant did

not report the crime (the delivery of heroin) or any suspicious activity to the police; and that

defendant arguably was attempting to flee from the residence in the Trailblazer and evade the

police when the police were arriving to the property to execute the search warrant. In addition,

defendant provided false information to the police or to the court, or both, and was found by the

trial court not to be credible. Taking all of the evidence of accountability together in this case and

considering that evidence in the light most favorable to the State, we find that the evidence was

sufficient to prove defendant guilty beyond a reasonable doubt of unlawful delivery of heroin as

alleged in count V of the charging instrument. See Collins, 106 Ill. 2d at 261; Jackson, 232 Ill.

2d at 280; Taylor, 164 Ill. 2d at 140-41. The evidence of defendant’s accountability for the

delivery of the heroin to the confidential source was not so improbable, unsatisfactory, or

inconclusive that it left a reasonable doubt of the defendant’s guilt. See Austin M., 2012 IL

111194, ¶ 107. We, therefore, affirm defendant’s conviction on count V.

¶ 57 Finally, with regard to count I (the heroin found in the Monte Carlo), the State’s

assertions to the contrary notwithstanding, we find that the evidence was insufficient to prove

that defendant had knowledge or possession of the heroin found in the Monte Carlo located on

defendant’s property beyond a reasonable doubt. See Adams, 242 Ill. App. 3d at 832 (indicating

that a defendant’s mere proximity to the controlled substance or presence upon the premises or in

the vehicle where a controlled substance is found, with nothing more, is not sufficient to

establish constructive possession). The evidence presented at the bench trial in this case

established that defendant was not the owner of the vehicle, that defendant had not been seen

34 driving the vehicle, and that defendant had not been seen in or around the vehicle. No evidence

was presented to suggest that defendant had the keys to the vehicle or that the keys were located

in the defendant’s house. The heroin was found shoved in the back of the glove compartment of

the vehicle, and no evidence, such as DNA, fingerprints, or items belonging to defendant, was

presented to link defendant to the vehicle, the glove compartment, or the drugs. In our view, the

evidence that the Monte Carlo was located on defendant’s property, with nothing more, was not

sufficient to establish that defendant had control over the Monte Carlo as necessary to prove a

theory of constructive possession, even when that evidence is viewed in the light most favorable

to the State and considered along with defendant’s lack of credibility. See Adams, 242 Ill. App.

3d at 832; People v. Horn, 2021 IL App (2d) 190190, ¶¶ 44-52 (finding, albeit for the purposes

of a probable cause determination, that the evidence presented was insufficient to establish that

the defendant had constructive possession of cocaine found in an urn in the locked trunk of a

vehicle that the defendant had been riding in as a passenger where there was no evidence that the

defendant had regular, ongoing control of the vehicle or had a connection to the contents of the

vehicle, none of the defendant’s property was located in the vehicle, the vehicle was not

registered to the defendant, the defendant was not driving the vehicle at the time of the traffic

stop, and the available evidence pointed more directly to the driver as the guilty party); People v.

Drake, 288 Ill. App. 3d 963, 964 (1997) (concluding in the context of a probable cause

determination that the evidence presented was insufficient to establish that the defendant had

constructive possession of cannabis and a gun that were found in a backpack located in the

locked trunk of a vehicle that the defendant had been riding in as a passenger where there was no

evidence presented that: the defendant had any degree of dominion or control over the trunk of

the vehicle or over the contraband itself, that the defendant knew what was in the backpack, or

35 that the defendant had key to the vehicle or the vehicle’s trunk). We conclude, therefore, that the

evidence presented in this case failed to prove defendant guilty beyond a reasonable doubt of

unlawful possession of heroin with intent to deliver as alleged in count I of the charging

instrument. We, therefore, reverse defendant’s conviction on count I.

¶ 58 C. Admission of the Confidential Source’s Statement

¶ 59 As his third and final point of contention on appeal, defendant argues that the trial court

erred in admitting into evidence the statement made by the confidential source that was

contained in the video recording of the first controlled purchase. In support of that argument,

defendant asserts first that the State failed to present a proper foundation for the admission of the

video recording under the silent witness doctrine. As the State correctly notes, however,

defendant has forfeited that assertion on appeal by failing to raise that specific assertion in his

posttrial motion in the trial court. See Enoch, 122 Ill. 2d at 186; Allen, 222 Ill. 2d at 350. We,

therefore, will not address defendant’s assertion in that regard any further here. As to the merits

of this issue, defendant asserts that the admission of the confidential source’s statement violated

defendant’s rights under the confrontation clause because the statement was testimonial hearsay

and because defendant was not provided with an opportunity to cross-examine the confidential

source about the statement. Due to that alleged error, defendant asks that we reverse his

convictions and that we remand this case for a new trial.

¶ 60 The State argues that the trial court’s ruling was proper and should be upheld. In support

of that argument, the State asserts, although somewhat implicitly, that defendant’s confrontation

clause claim should be rejected because the video recording was properly admitted under the

silent witness doctrine. The State asks, therefore, that we affirm defendant’s convictions.

36 ¶ 61 A trial court’s ruling on the admissibility of evidence is generally reviewed on appeal for

an abuse of discretion. See People v. Dabney, 2017 IL App (3d) 140915, ¶ 17. However, a

defendant’s claim that his constitutional rights under the confrontational clause were violated by

the admission of a hearsay statement presents a question of law that is subject to a de novo

standard of review on appeal. See id.

¶ 62 The confrontation clause of the United Sates and Illinois Constitutions guarantees the

right of a criminal defendant to confront the witnesses against him or her. See U.S. Const.,

amend VI; Ill. Const. 1970, art. I, § 8; People v. Williams, 238 Ill. 2d 125, 142-43 (2010), aff’d

sub nom., Williams v. Illinois, 567 U.S. 50, 86 (2012); Dabney, 2017 IL App (3d) 140915, ¶ 18.

The primary concern of the confrontation clause is with testimonial hearsay. Williams, 238 Ill. 2d

at 142. Thus, when a court considers a confrontation clause claim, the threshold question is

whether the out-of-court statement at issue was testimonial. People v. Perkins, 2018 IL App (1st)

133981, ¶ 77. A court need only consider that question, however, if the challenged statement

was, in fact, a hearsay statement—a statement offered to prove the truth of the matter asserted.

Williams, 238 Ill. 2d at 142. The confrontation clause does not bar the admission of testimonial

statements that are admitted for purposes other than to prove the truth of the matter asserted. Id.

¶ 63 In the present case, after reviewing the video recording of the first controlled purchase,

we find that the confidential source’s statement contained therein was not being offered to prove

the truth of the matter asserted. Indeed, as the parties rightly note, it cannot even be discerned

from the video recording what the confidential source stated to defendant when the source first

walked up on defendant’s property. Obviously, then, the statement was not being admitted for its

truth. Rather, it appears that the statement was being admitted to show the effect that it had on

the listener (defendant) and to show defendant’s intent—that defendant immediately pointed

37 toward Gaines and directed the confidential source to follow Gaines. The statement at issue did

not constitute hearsay and, thus, its admission was not barred by the confrontation clause. See id.

We need not determine, therefore, whether the statement was testimonial. See id. Nor do we take

any position on the State’s argument that satisfying the foundation requirements under the silent

witness doctrine would allow the video recording to be admitted, despite any possible

confrontation clause problems that existed.

¶ 64 III. CONCLUSION

¶ 65 For the foregoing reasons, we affirm: (1) the trial court’s denial of defendant’s motion to

quash and suppress; (2) defendant’s convictions on counts II, IV, and V of the charging

instrument; and (3) the trial court’s ruling on the admissibility of the confidential source’s

statement contained in the video recording. We reverse, however, defendant’s conviction on

count I of the charging instrument.

¶ 66 Affirmed in part and reversed in part.