People v. Moore , 46 N.E.3d 334 ( 2015 )

2015 IL App (1st) 140051
No. 1-14-0051
THIRD DIVISION
December 16, 2015
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 13 CR 8583
)
DARRYL MOORE, )
) The Honorable
Defendant-Appellant. ) Nicholas R. Ford,
) Judge Presiding.
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Lavin concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, defendant Darryl Moore was convicted of two counts of
unlawful possession of ammunition by a felon and one count of possession of a controlled
substance (cocaine). Defendant was subject to Class X sentencing due to his criminal
background, and the trial court sentenced defendant to six years in prison on each count, with
those terms to be served concurrently. On appeal, defendant contends the State failed to prove
his constructive possession of the contraband beyond a reasonable doubt. Because we agree the
State did not establish that defendant had immediate and exclusive control over the area where
the contraband was recovered, we reverse defendant's convictions.
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¶2 BACKGROUND
¶3 The State charged defendant with two counts of unlawful use or possession of a weapon
by a felon for knowingly possessing ammunition in his abode having previously been convicted
of a felony. Defendant also was charged with one count of possession of between 1 and 15 grams
of a controlled substance (cocaine) with intent to deliver.
¶4 At about 8:20 p.m. on April 6, 2013, Chicago police executed a search warrant at 239
West 105th Street in Chicago. A copy of the complaint for the search warrant was not entered
into evidence and is not included in the record on appeal. Two police officers who executed the
search warrant testified for the State. Chicago police officer Dennis Huberts testified that when
the team of officers arrived at 239 West 105th Street, he went to the front of the residence and
saw defendant jump out of a window on the side of the house. The window was six or seven feet
above the ground and was later determined to be a bathroom window. Defendant fled and was
apprehended about six houses away.
¶5 Officer Huberts testified he searched "a portion of the basement" and "some part of the
living room." He recovered bullets from "a desk or a drawer upstairs in the living room" and
recovered .22-caliber ammunition and suspect cocaine from the basement rafters.
¶6 The State entered into evidence photographs of the basement stairwell and the basement.
When asked if he took any photographs of the rafters from which the ammunition and cocaine
were retrieved, Officer Huberts replied, "No, it was kind of hard to get, really dark. It was a
really small spot." On cross-examination, Officer Huberts said he did not see defendant handle
any of the contraband or discard anything while emerging from the window.
¶7 Chicago police officer Jeffrey West testified he searched a bedroom in the residence,
which he believed was one of three bedrooms. Officer West testified the bedroom contained
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men's clothing. He also recovered from a dresser drawer in the bedroom a letter addressed to
defendant at 239 West 105th Street, Chicago, Illinois, 60628.
¶8 On cross-examination, Officer West was asked how many other people were present
when the warrant was executed, and he responded, "I can recall about three offhand," including
one elderly female and "another individual within the residence." Officer West did not recall
seeing other men in the residence and did not see defendant handle the contraband. The letter
taken from the dresser in the bedroom had a postmark of October 31, 2012.
¶9 The parties stipulated that the packet removed from the rafters tested positive for 2.6
grams of cocaine. The parties further stipulated defendant had a prior felony conviction for
possession of a controlled substance with intent to deliver.
¶ 10 At the close of the State's case, the defense moved for a directed finding, asserting no
evidence was presented of defendant's exclusive control of the contraband. The court denied that
portion of the defense motion but granted the motion as to the count of possession of cocaine
with intent to deliver, stating the count would be considered as alleging "straight possession."
¶ 11 The defense presented three witnesses. Tempie Thomas testified she lived at the house
with her granddaughter, Veronica Lindsey, and Lindsey's three children. Thomas testified
defendant was her great-grandson and did not live at her house on April 6, 2013. Thomas sat in
her living room while police searched the house. Defendant was not present.
¶ 12 On cross-examination, Thomas reiterated that defendant did not live with her and "[n]one
of my kids live with me. They all come in and out, but nobody lives with me." Contrary to her
statement on direct examination, Thomas acknowledged defendant was at the house that day and
also said he had received mail there. Thomas denied owning the contraband.
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¶ 13 Carla Brown testified she was visiting defendant at Thomas's residence on the day of the
search; however, she stated defendant did not live there. When the police arrived to execute the
warrant, she was in the bathroom and defendant was outside. While seated in the living room
during the search, Brown saw police recover a box of bullets from under a cabinet.
¶ 14 Shaniece Thomas testified she was defendant's sister and that defendant had lived with
her family in East Chicago, Indiana, since January 2013. Thomas said defendant left at about 8
a.m. on April 6, 2013, to go to their grandmother's house.
¶ 15 At the close of evidence, the trial court made the following findings:
"Finding of guilty to straight possession of a controlled substance. Finding of guilty
of [unlawful use of a weapon] by a felon. My basis of the finding is his exit – by the way,
I believe the officer of what he said completely [sic], the defendant jumping out of the
bathroom window. I believe that.
Secondly, I believe the defendant's witness that that's where he was residing in the
city of Chicago. I believe the piece of mail that he was found, five or six months before
the incident, that shows that he did reside at that address.
And I finally want to indicate that in this particular circumstance I would find
obviously that the elderly woman that testified that did reside there was the property – the
homeowner of that home and that she absolutely had nothing to [do] with this because
these drugs were secreted in her home by the man, I think it could be inferentially argued,
left from the window of that home upon the entry of the police into that home, the man
responsible for the execution of a search warrant on that home, the defendant before me
today."
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¶ 16 At sentencing, the State offered proof of defendant's four prior felony convictions. Based
on his criminal history, defendant was sentenced as a Class X offender to three concurrent terms
of six years in prison.
¶ 17 On appeal, defendant contends his convictions should be reversed because the evidence,
even when viewed in the light most favorable to the State, did not establish he had knowledge of
the presence of the contraband or that he had control over the premises so as to prove his
constructive possession.
¶ 18 STANDARD OF REVIEW
¶ 19 Where, as here, a defendant challenges the sufficiency of the evidence, a criminal
conviction will not be overturned unless the evidence is so improbable or unsatisfactory that it
creates a reasonable doubt as to the defendant's guilt. People v. Givens, 237 Ill. 2d 311, 334
(2010) (citing People v. Collins, 106 Ill. 2d 237, 261 (1985)). In such a case, it is not the function
of this court to retry the defendant; rather, the relevant inquiry is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. Id. (quoting People v. Davison,
233 Ill. 2d 30, 43 (2009), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
¶ 20 Before applying that legal standard, this court is compelled to note that both defendant
and the State make arguments in their briefs that are not based on the evidence presented to the
trial court. In assessing the sufficiency of the evidence on appeal, this court is constrained by that
evidence and cannot venture outside the record and consider those arguments. See People v.
Benford, 31 Ill. App. 3d 892, 894 (1975) ("[i]n an appeal, the purpose of review is to evaluate the
record of the trial court, and, in general, the review will be limited to what appears in the
record").
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¶ 21 ANALYSIS
¶ 22 With that principle in mind, we consider the evidence pertaining to the convictions in this
case. Defendant was convicted of the unlawful use or possession of firearm ammunition by a
felon and also was convicted of the possession of cocaine. Thus, the State was required to prove
beyond a reasonable doubt that defendant knowingly possessed ammunition and previously had
been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2010). The State also was required to
prove beyond a reasonable doubt that defendant had knowledge of the presence of the cocaine
and that the cocaine was in his immediate possession or immediate control. 720 ILCS
570/401(c)(2) (West 2010).
¶ 23 Knowing possession may be actual or constructive. People v. Smith, 2015 IL App (1st)
132176, & 26. Here, because defendant was not seen in the presence of the recovered
contraband, the State was required to show that defendant constructively possessed it. See
People v. Hannah, 2013 IL App (1st) 111660, & 28. To establish constructive possession, the
State must prove defendant had knowledge of the contraband and exercised immediate and
exclusive control over the area where the contraband was found. People v. Maldonado, 2015 IL
App (1st) 131874, & 23. Constructive possession can be demonstrated if the defendant once had
physical control over the contraband with intent to exercise control again, the defendant has not
abandoned the items, and no other person has obtained possession. People v. Adams, 161 Ill. 2d
333, 345 (1994). Constructive possession is typically proved entirely through circumstantial
evidence. Smith, 2015 IL App (1st) 132176, & 26.
¶ 24 The State relies on the mail and clothing recovered from the bedroom as proof that
defendant lived at the house and thus had control of the area for purposes of constructive
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possession. The State further argues the knowledge element was met by defendant's flight from
the house as the officers entered.
¶ 25 We first consider whether the State presented sufficient proof of defendant's knowledge
of the contraband. Knowledge is rarely proven by direct evidence, but may be shown by
evidence of the defendant's acts, statements or conduct from which a fact finder may infer the
defendant knew of the presence of the prohibited items. Id.; Maldonado, 2015 IL App (1st)
131874, & 40. Here, the police observed defendant leaving the house through a bathroom
window and found mail addressed to defendant in a bedroom, along with male clothing.
However, the contraband was not recovered from that area. Upon searching the house,
ammunition was recovered from inside a desk or cabinet drawer in the living room and
ammunition and drugs were found in a relatively hidden area in the basement rafters.
¶ 26 In finding defendant knowingly possessed those items, the trial court relied on the fact
that defendant was seen fleeing from the residence when police arrived. Evidence of flight is
admissible as tending to demonstrate a defendant's consciousness of guilt. People v. Harris, 52
Ill. 2d 558, 561 (1972). Still, the fact of flight is to be considered "in connection with all other
evidence in a case." People v. Lewis, 165 Ill. 2d 305, 349 (1995). The inference of guilt which
may be drawn from flight depends upon the knowledge of the suspect that the offense has been
committed and that he is or may be suspected. Id. The trial court here cited defendant's flight in
finding the evidence sufficient to establish his guilt.
¶ 27 However, in addition to knowledge, the State also had to prove that defendant exercised
immediate and exclusive control over the area where the contraband was found. See Maldonado,
2015 IL App (1st) 131874, & 23. Even where a defendant is first observed fleeing from a
location where narcotics is found, that fact is not sufficient to prove constructive possession,
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absent any further indicia of knowledge or control. In re K.A., 291 Ill. App. 3d 1, 7-9 (1997). A
defendant's residency at the location where contraband is recovered has been found to constitute
sufficient evidence of control so as to establish constructive possession. Maldonado, 2015 IL
App (1st) 131874, & 29. " ' "Proof of residency in the form of rent receipts, utility bills and
clothing in closets is relevant to show the defendant lived on the premises and therefore
controlled them." ' " People v. Spencer, 2012 IL App (1st) 102094, & 17 (quoting People v.
Cunningham, 309 Ill. App. 3d 824, 828 (1999), quoting People v. Lawton, 253 Ill. App. 3d 144,
147 (1993).
¶ 28 The State's evidence, even taken its most favorable light, did not establish that defendant
lived at 239 West 105th Street. The State presented a piece of mail addressed to defendant and
postmarked more than six months earlier. That item was found in a bedroom that also contained
male clothing but that clothing was not specifically linked to defendant. No other evidence
connected defendant to the residence. In contrast, defendant presented three witnesses who
testified he did not live at the house. Moreover, defendant's great-grandmother testified her
young relatives "all come in and out" of the house. Thus, the evidence in this case did not
establish defendant's immediate and exclusive control over the premises.
¶ 29 In People v. Ray, 232 Ill. App. 3d 459, 460-61 (1992), which defendant cites in his brief,
the defendants' convictions were reversed in the face of stronger evidence of constructive
possession than was presented here. In Ray, police recovered cocaine, cash and drug
paraphernalia from the apartment living room where the three defendants were sitting. Despite
the defendants' seated positions within a few feet of the contraband, the appellate court reversed
their convictions for cocaine possession, noting the only evidence connecting them to the
apartment was a six-month-old cable TV bill in the name of one defendant. Id. at 461-63. Here,
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as in Ray, the single piece of mail addressed to defendant dated six months prior, and male
clothing in a bedroom, were the only items tying defendant to the residence. The contraband here
was not in the presence of defendant.
¶ 30 The State contends the facts here are comparable to those in Spencer, 2012 IL App (1st)
102094, which also involved the defendant's flight during the execution of a search warrant. In
Spencer, this court found the evidence at the defendant's bench trial was sufficient to show that
the defendant constructively possessed a firearm and ammunition based on items that established
the defendant's residency in the searched house. Id. & 18. When police entered the house to
perform the search, the defendant fled and was apprehended in the backyard. Id. & 3. The
officers recovered a .357-caliber revolver and ammunition from the top of a kitchen cabinet. Id.
& 5. The items recovered from a bedroom included three rounds of .357-caliber ammunition, an
Illinois identification card bearing the defendant's name and listing the searched house as his
residence, a set of keys that operated the house's exterior doors, two photographs of the
defendant, men's clothing, a four-month-old letter from the Cook County probation department
mailed to the defendant at the address of the searched house, and $9,000 in cash. Id. & 4. After
the ammunition and cash were recovered, the defendant "made a statement to the effect that he
needed to have a gun because of the amount of money that he had." Id. & 18.
¶ 31 Affirming the defendant's conviction on appeal, this court held in Spencer that proof of
the defendant's residency and his statements to police connected the defendant to the gun
recovered from the kitchen. Id. This court further noted the defendant's flight from the house as
evidence of his consciousness of guilt. Id. Viewing all of that evidence in the light most
favorable to the State, this court held that a rational trier of fact could have found the defendant
constructively possessed the revolver and ammunition recovered in the search. Id.
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¶ 32 Several points distinguish Spencer from the case at bar. First, the items recovered in the
house in Spencer were far more comprehensive than the personal effects here. In contrast to the
male clothing and a single piece of correspondence recovered by police in this case, the officers
in Spencer found an identification card showing defendant lived at the subject address, a set of
keys to the residence, and photographs of the defendant. Id. & 4. Second, some of the
ammunition in Spencer was recovered from the bedroom in which the defendant's personal
effects also were found. Here, police found the contraband in other areas of the house. Third, the
defendant in Spencer admitted his knowledge of a weapon in the house. In this case, defendant
made no such admission. Although the trial court in Spencer noted the defendant's flight from
the house as evidence of his consciousness of guilt, as did the trial court here, the facts
supporting knowledge of the contraband and control over the area where the contraband was
found were far stronger in Spencer than in the case before us.
¶ 33 Even when viewed in the light most favorable to the prosecution, the evidence presented
to the trial court does not support a finding that defendant committed the essential elements of
the crime beyond a reasonable doubt. Although defendant was seeing fleeing from the 239 West
105th Street when police arrived, the State did not prove that defendant exercised immediate
control over the area where the illegal items were found.
¶ 34 CONCLUSION
¶ 35 Accordingly, defendant's convictions for unlawful possession of ammunition by a felon
and possession of a controlled substance (cocaine) are reversed. Given that disposition, we need
not address defendant's contention on appeal relating to the correction of the mittimus.
¶ 36 Reversed.
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