People v. Songer

594 N.E.2d 405, 229 Ill. App. 3d 901, 171 Ill. Dec. 553, 1992 Ill. App. LEXIS 884
CourtAppellate Court of Illinois
DecidedJune 5, 1992
Docket3-90-0301
StatusPublished
Cited by23 cases

This text of 594 N.E.2d 405 (People v. Songer) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Songer, 594 N.E.2d 405, 229 Ill. App. 3d 901, 171 Ill. Dec. 553, 1992 Ill. App. LEXIS 884 (Ill. Ct. App. 1992).

Opinion

JUSTICE McCUSKEY

delivered the opinion of the court:

John A. Songer was convicted by a jury of unlawful possession with intent to deliver more than 30 grams but not more than 500 grams of cannabis (Ill. Rev. Stat. 1989, ch. 56x/2, par. 705(d)) and unlawful possession of less than 15 grams of a controlled substance (LSD) (Ill. Rev. Stat. 1989, ch. 56x/2, par. 1402(b)). He was sentenced to eight years’ imprisonment on the cannabis conviction. The trial court reserved sentencing on the LSD conviction. Songer appeals his conviction of unlawful possession of cannabis. We affirm.

At approximately 8:20 p.m. on October 24, 1988, two agents with the Peoria Metropolitan Enforcement Group (MEG) and two Peoria County sheriff’s deputies arrived at 1708 West Lane in Peoria County to execute a search warrant. A third agent arrived after the search commenced. The record indicates the residence was described as a basement house. The above-ground portion consisted only of a bedroom, a foyer closet, and a hallway. The basement level contained a kitchen, a living room, and a bathroom.

MEG Agent Dan Brotz testified that after knocking on the door of the residence, he saw Songer’s roommate, Brian Tipton, come to the door and then retreat about six feet. Brotz testified that he waited approximately 45 seconds to a minute before striking the door open with a sledgehammer. Brotz was not asked whether the police identified themselves as police officers prior to the forced entry. Upon entering, Brotz found Tipton standing in the doorway of the upstairs bedroom, approximately six feet from the front door. Brotz was dressed in civilian clothes. However, he was wearing a black “raid” jacket with “police” clearly printed on the front and back. Brotz also had his revolver drawn. The other MEG agent present also wore civilian clothes and a “raid” jacket just like Brotz’s. The two sheriff’s deputies were wearing sheriff’s uniforms.

The officers searched the upper-level closet and found $1,876 cash in a brown plastic bag and $7,100 cash in a paper bag. Two plastic bags of cannabis were found in a paper bag on the closet floor. A box on the closet floor contained drug paraphernalia and purported price lists. In a gym bag in the closet the officers found two bags of cannabis, an item of drug paraphernalia described as a “one hitter,” small squares of paper which tested positive for LSD, and approximately $50 in coins. A search of the kitchen yielded an electronic scale and 11 plastic bags of cannabis.

Danny Richards, deputy director of MEG, testified that the search was already in progress when he arrived at the house. Upon arrival, he found Songer and Tipton seated at a table in the kitchen in the basement level. No other testimony was offered to explain where Songer was located when the raid started or how he came to be seated in the kitchen. Songer admitted to Agent Richards that he lived in the residence. Tipton stated that he lived there occasionally. Songer had $455 cash in his pants pocket. Tipton had two bags of cannabis and $867 cash in his pants pocket.

Agent Richards was offered as an expert in the field of packaging, delivery, sales and valuation of drugs. Richards testified that in his expert opinion the nearly half pound of cannabis found on the premises, packaged in bags of varying quantities, “would be for redistribution.” He stated that the amount of cannabis in the house clearly exceeded the amount normally used for personal consumption.

Songer contends his conviction should be reversed because (1) the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt of possession of cannabis with intent to deliver; (2) hearsay testimony was improperly admitted at trial; (3) expert testimony allowed at trial was plain error; and (4) the unannounced entry by the officers executing the search warrant was not constitutionally reasonable.

A court in reviewing the sufficiency of the evidence must view all the evidence in the light most favorable to the prosecution in order to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

Songer is correct that no testimony was offered to place him at the residence when the police arrived to execute the search warrant. Agent Brotz stated that it was Songer’s roommate, Tipton, who answered the door. Agent Richards testified that he saw Songer seated at the kitchen table while the search was being conducted. Therefore, Songer concludes that the elements necessary to prove unlawful possession were lacking since there was no testimony placing him in the house at the time of the forced entry by the police.

Songer additionally argues that the locations in the house where the contraband and other items were found did not lend themselves to an inference of knowledge on his part. Songer also points out that no contraband was found on his person, in his car, or in the bedroom. The record is unclear whether Songer or his roommate claimed possession of the bedroom. Songer contrasts all of this evidence with the conduct of Tipton, who responded to the knock at the door and was found with two bags of cannabis and $867 in his trouser pockets.

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of drugs and that they were in his immediate possession and control. (People v. Galloway (1963), 28 Ill. 2d 355, 358, 192 N.E.2d 370, 372.) Possession may be established by evidence of either actual or constructive possession. (People v. Mack (1957), 12 Ill. 2d 151, 161-63, 145 N.E.2d 609, 612-13; People v. Scott (1987), 152 Ill. App. 3d 868, 871, 505 N.E.2d 42, 44.) Constructive possession may be inferred from the defendant’s exclusive control of the premises where the drugs were found. (People v. Hester (1980), 87 Ill. App. 3d 50, 52-53, 409 N.E.2d 106, 108-09.) Once possession is proved, knowledge may be inferred from the surrounding facts and circumstances. (People v. Jackson (1961), 23 Ill. 2d 360, 365, 178 N.E.2d 320, 322.) Whether Songer had knowledge of the drugs and possession of them were questions of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Gallagher (1990), 193 Ill. App. 3d 566, 569, 550 N.E.2d 255, 257.

Based upon our review of the record, we find there is sufficient evidence to establish Songer’s immediate and exclusive control over the premises. Songer admitted that he lived at the premises in question. Tipton told Agent Brotz that he stayed there occasionally.

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Cite This Page — Counsel Stack

Bluebook (online)
594 N.E.2d 405, 229 Ill. App. 3d 901, 171 Ill. Dec. 553, 1992 Ill. App. LEXIS 884, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-songer-illappct-1992.