People v. Comage ( 2009 )

NO. 4-08-0402 Filed 11/17/09
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
DANNY COMAGE, ) No. 07CF393
Defendant-Appellant. )
) Honorable
) Timothy J. Steadman,
) Judge Presiding.
_________________________________________________________________
JUSTICE MYERSCOUGH delivered the opinion of the court:
In February 2008, a jury convicted defendant, Danny
Comage, of obstructing justice (720 ILCS 5/31-4(a) (West 2006)).
In May 2008, the trial court sentenced defendant to three years
in the Illinois Department of Corrections (DOC). Defendant
appeals, arguing the State failed to prove his guilt beyond a
reasonable doubt because his act of throwing a crack pipe did not
amount to concealment of evidence. We affirm.
I. BACKGROUND
In March 2007, The State charged defendant with ob-
structing justice (720 ILCS 5/31-4(a) (West 2006)), unlawful
possession of drug paraphernalia (720 ILCS 600/3.5 (West 2006)),
and resisting a peace officer (720 ILCS 5/31-1 (West 2006)).
These charges resulted from events that took place as part of the
investigation of a gas station theft. Defendant was not charged
in relation to the gas station theft.
In July 2007, a jury convicted defendant of obstructing
justice and resisting a peace officer but found him not guilty of
possession of drug paraphernalia. Defendant filed a motion for
judgment notwithstanding the verdict or, alternatively, for a new
trial based partly on the fact that one of the State's witnesses
made reference to defendant having invoked his right to remain
silent during police questioning. In September 2007, the trial
court granted defendant's motion for a new trial on the
obstructing-justice and resisting-a-peace-officer charges. The
State later dismissed the resisting-a-peace-officer charge.
At the second jury trial in February 2008, the follow-
ing evidence was presented. On the night of March 19, 2007,
while investigating a theft at a gas station in Decatur, Officer
Chad Larner began looking for the suspect, who had been described
as a clean-shaven black man, thinly built, and wearing nice
casual dress slacks. Officer Larner stopped defendant and asked
for identification. While Larner was checking defendant's
information over the police radio, Officer Kathleen Romer arrived
on the scene. She noticed defendant was jumping around and
appeared nervous. Officer Romer testified defendant advised he
needed to urinate and threatened to urinate on the squad car.
Thereafter, defendant suddenly ran away from the officers down an
alley. The two officers chased him for approximately 20 to 30
yards before defendant stopped.
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During the chase, according to the officers, they had
an unobstructed view of defendant. While only a short distance
behind defendant, the officers saw him reach into his pocket,
pull out two rod-like objects that were five to six inches in
length, and throw them over a six-foot-tall, wooden privacy fence
while he ran down the alley. The fence was just above Officer
Larner's eye level. Neither officer saw over what section of the
fence defendant threw the items. Defendant stopped approximately
10 to 15 feet from where he threw the items after Officer Romer
threatened to use her Taser.
Officer Larner found a crack cocaine pipe and a push
rod in the parking lot on the other side of the fence. The
general area where the pipe and rod were found had landscape rock
under and along the fence about two to three feet wide. Some
grass was in the area but no snow. The rest of the parking lot
was concrete or asphalt. According to his testimony, Larner
located the 2 items in under 20 seconds after apprehending
defendant. Although it was nighttime, Officer Larner testified
that the parking lot was well-lit and vacant. Larner found the
items in the approximate area where defendant had thrown the two
items he took from his pocket.
Citing In re M.F., 315 Ill. App. 3d 641, 734 N.E.2d 171
(2000), defendant moved for a directed verdict on the ground that
he had not concealed evidence since the officers observed defen-
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dant toss the evidence over the fence and the officers promptly
retrieved the evidence. The trial court denied defendant's
motion on the grounds that the facts in M.F. were distinguishable
from the case before the court. The court specifically stated as
follows:
"I do think[,] for the reasons I stated back
in July[,] that there are significant distin-
guishing factors here that make this scenario
much different or substantially different, I
think, than what happened in the 'rooftop'
case, not the least of which is, in this case
according to the evidence the State has pro-
duced, defendant was running after a legal
Terry [s]top took place. In the process of
running on foot, he discarded the items,
didn't just drop them but threw them over an
adjacent fence[,] which is more of [an] af-
firmative act amounting to obstructing jus-
tice. So, I do think there are enough dis-
tinguishing factors here that--uh--the motion
should be denied."
The jury found defendant guilty of obstructing justice.
The trial court entered judgment on the verdict and sentenced
defendant to three years' imprisonment in DOC.
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This appeal followed.
II. ANALYSIS
On appeal, defendant argues that the State failed to
prove him guilty beyond a reasonable doubt. Specifically,
defendant argues that the State failed to prove defendant "con-
cealed" evidence to prevent his prosecution for possession of
drug paraphernalia because the State only demonstrated that
defendant "abandoned the crack pipe in full view of police
without any reasonable ability to conceal it." The State argues
that its burden of proof was met at trial. We agree with the
State.
Section 31-4(a) of the Criminal Code of 1961 (Code)
states:
"A person obstructs justice when, with
intent to prevent the apprehension or ob-
struct the prosecution or defense of any
person, he knowingly commits any of the fol-
lowing acts:
(a) Destroys, alters, conceals[,] or
disguises physical evidence, plants false
evidence, [or] furnishes false informa-
tion[.]" 720 ILCS 5/31-4(a) (West 2006).
The State charged defendant, "with the intent to
obstruct the prosecution of himself for possessing drug parapher-
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nalia, knowingly concealed physical evidence, in that he threw a
metal pipe and push-rod over a wooden privacy fence and out of
view while being pursued by police."
This court must first determine whether defendant's
actions in this case legally constitute concealment under section
31-4(a) of the Code (720 ILCS 5/31-4(a) (West 2006)). The
meaning of "conceal" is a question of law, which we review de
novo. People v. Ehley, 381 Ill. App. 3d 937, 943, 887 N.E.2d
772, 778 (2008).
The Code does not define the term "conceal." When a
statute does not define a term, the term is to be given its plain
and ordinary meaning. Price v. Philip Morris, Inc., 219 Ill. 2d
182, 243, 848 N.E.2d 1, 37 (2005). "Conceal" is defined as
follows: "1: to prevent disclosure or recognition of[,] 2: to
place out of sight[,] syn see HIDE." Merriam-Webster's Colle-
giate Dictionary 238 (10th ed. 1998). Based on the specific
facts in this case, we conclude defendant's actions did conceal
the evidence.
Further, the trial court correctly determined that the
Second District's opinion in M.F. is distinguishable from the
case sub judice. In M.F., the State alleged that M.F. knowingly
concealed evidence from police officer Phillip Brown with the
intent to obstruct his own prosecution by throwing Baggies
containing cocaine off a rooftop. M.F., 315 Ill. App. 3d at 642,
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734 N.E.2d at 173. According to the facts in M.F., Officer Brown
was securing the front of a residence while other officers went
upstairs to execute a warrant. M.F., 315 Ill. App. 3d at 643,
734 N.E.2d at 173. Officer Brown heard the other officers knock
on the door and announce their presence. M.F., 315 Ill. App. 3d
at 643, 734 N.E.2d at 173. He then saw M.F. come out of a window
onto the roof of the building over the entrance. M.F., 315 Ill.
App. 3d at 643, 734 N.E.2d at 173. Officer Brown told M.F. not
to move. M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173. M.F.
twice reached into his pocket and each time made a throwing
motion toward the street behind Officer Brown, who was standing
on the sidewalk approximately 30 feet from M.F. M.F., 315 Ill.
App. 3d at 643, 734 N.E.2d at 173. Officer Brown was shining a
flashlight on M.F. but could not see what M.F. had in his hands.
M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173. Another
officer grabbed M.F. through the window and pulled him back into
the building. M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173.
Officer Brown then looked in the direction M.F. had thrown the
objects and found three bags containing a rock-like substance,
which tested positive for cocaine, approximately 10 feet from
him. M.F., 315 Ill. App. 3d at 643-44, 734 N.E.2d at 173-74.
The defendant in M.F. argued "he did not conceal the
[B]aggies merely by throwing them away from his person, and they
were retrieved by the officer within seconds so that his
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prosecution was not obstructed." M.F., 315 Ill. App. 3d at 646,
734 N.E.2d at 176. The Second District Appellate Court stated:
"Since the term 'conceal' is not defined by
the statute and there is no case on point in
Illinois addressing the issue of concealment
based on this set of facts, we have examined
cases from other jurisdictions that have
applied this term to similar facts. Other
states have similar obstruction or
evidence-tampering statutes making it a crime
to alter, destroy, mutilate, suppress, con-
ceal, or remove physical evidence with the
intent to impair its verity or availability
in an official legal proceeding or a criminal
investigation." (Emphasis in original.)
M.F., 315 Ill. App. 3d at 646-47, 734 N.E.2d
at 176.
After thoroughly discussing decisions from other jurisdictions,
the Second District stated:
"It appears that, under the scenarios
presented, the clear weight of authority from
other states concludes that where a defendant
merely drops, throws down, or abandons drugs
in the vicinity of the defendant and in the
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presence and view of the police, this conduct
does not constitute concealment that will
support an evidence-tampering or obstruction
charge, or a conviction that is additional to
and separate from the ongoing possessory
offense.
Like other jurisdictions, this court
construes criminal statutes strictly, rather
than expansively. The language used by the
legislature is the best indication of legis-
lative intent. [Citation.] Where the lan-
guage is plain and unambiguous, a court will
not read in exceptions, limitations, or con-
ditions that the legislature did not express,
nor should a court search for any subtle or
not readily apparent intention of the legis-
lature. [Citation.] Criminal or penal stat-
utes are to be strictly construed in favor of
an accused, and nothing should be taken by
intendment or implication beyond the obvious
or literal meaning of the statute. [Cita-
tion.] Absent a clearer legislative intent,
we conclude that when an individual who is
suspected of committing a possessory offense
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abandons evidence by dropping or throwing it
to the ground in the presence of a police
officer, such conduct does not constitute an
act of concealment within the meaning of the
statute that would sustain a conviction for
the additional felony offense of obstructing
justice." M.F., 315 Ill. App. 3d at 650, 734
N.E.2d at 178.
However, in the case sub judice, defendant did not
merely abandon the evidence by throwing it to the ground in the
vicinity and view of the police officer who was shining a flash-
light on defendant. Here, defendant took the more affirmative
act of throwing the evidence over a privacy fence and out of the
view of the police while defendant was fleeing from the police
down an alley at night.
In a similar case, Hayes v. State, 634 So. 2d 1153
(Fla. App. 1994), the Florida appellate court upheld the defen-
dant's conviction for tampering with evidence where the defen-
dant, while being pursued by a police officer attempting to
arrest the defendant, pulled a Baggie containing crack cocaine
from his pants and dropped the Baggie into a drainage outlet.
The wet Baggie was retrieved from the drainage system. Hayes,
634 So. 2d at 1154.
In a similar Florida Supreme Court case, State v.
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Jennings, 666 So. 2d 131 (Fla. 1995), the supreme court reversed
the trial court's order dismissing the charge of tampering with
physical evidence where the defendant, upon the approach of the
police, tossed alleged cocaine rocks into his mouth and swallowed
them. The objects the defendant swallowed were never recovered.
The Jennings court disagreed with Boice v. State, 560
So. 2d 1383 (Fla. App. 1990). In Boice, the defendant purchased
a small bag of cocaine from an undercover police officer. As
soon as the transaction was completed, the police surrounded the
defendant's vehicle. The undercover officer observed the defen-
dant throw the bag of cocaine out the window of his car. One of
the other officers retrieved the bag from the roadway where it
was sitting near the door on the driver's side of the defendant's
vehicle. The reviewing court reversed the defendant's conviction
for tampering with evidence, finding that "[t]he defendant's act
of tossing the small bag of cocaine away from his person while in
the presence of the arresting officers at the scene of the
purchase [did] not rise to the level of conduct which constitutes
a concealment or removal of something for the purpose of impair-
ing its availability for the criminal trial" since the defendant
did not remove the cocaine from the immediate area of his arrest.
Boice, 560 So. 2d at 1384.
The Jennings court disagreed with Boice "to the extent
it can be read to mean that tossing evidence away in the presence
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of a law[-]enforcement officer does not, as a matter of law,
constitute a violation of the statute." Jennings, 666 So. 2d at
133. The Jennings court found:
"Depending upon the circumstances, such an
act could amount to tampering or concealing
evidence. An affirmative act of throwing
evidence away constitutes more than mere
abandonment. We conclude that the trial
court's ruling is rooted in an overly broad
reading of Boice and find that swallowing an
object clearly constitutes altering, destroy-
ing, concealing, or removing a 'thing' within
the meaning of section 918.13." (Emphasis
added.) Jennings, 666 So. 2d at 133.
In the case sub judice, defendant urges us to narrowly
interpret the meaning of "conceal," arguing that we should do so
in line with the M.F. case. Defendant argues since (1) he
"abandoned" the evidence when he threw the evidence over the
fence in full view of the police officers without any reasonable
expectation that his action would not be viewed by the police and
(2) the evidence was quickly discovered by the police, his
actions cannot qualify as "concealment" under the obstruction-of-
justice statute. As did the Florida Supreme Court in its deci-
sion in Jennings, this court declines to place such a narrow
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interpretation on the statute under the circumstances of this
case. Defendant ran from the police down an alley at night. The
police were in pursuit, not shining a flashlight on his every
move. Defendant did not merely drop the evidence along his
flight path, but threw it over a six-foot, wooden privacy fence.
Defendant could have reasonably anticipated that the police may
not see him throw the evidence over the fence. Fortunately for
the police, the area where defendant threw the evidence happened
to be a well-lit, empty parking lot, making retrieval of the
evidence possible.
For the foregoing reasons, defendant's affirmative act
constitutes concealment of the evidence under the obstruction-of-
justice statute.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State its
statutory assessment of $50 against defendant as costs of this
appeal.
Affirmed.
McCULLOUGH, P.J., concurs.
POPE, J., dissents.
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JUSTICE POPE, dissenting:
I respectfully dissent. Although the majority attempts
to distinguish this case from M.F., in my opinion it is virtually
indistinguishable. In M.F., the police were executing a search
warrant for narcotics at an upstairs apartment while Officer
Brown secured the front of the residence. After hearing the
other officers knock at the door of the apartment and announce
their presence, Brown saw M.F. come out onto the roof and toss
what turned out to be narcotics toward the street behind Brown.
M.F. did not simply drop the items, nor did he simply abandon
them. He threw them off the roof--clearly to avoid detection by
the officers executing the search warrant.
The Second District found M.F.'s conduct did not
constitute obstructing justice based on concealment of evidence,
because he threw the drugs from a rooftop in the vicinity of a
police officer and the drugs were recovered within seconds.
"Under the circumstances, it does not appear that this act was
likely to either destroy the evidence or make recovery less
likely. Therefore, even though respondent may have intended to
prevent the apprehension or obstruct the prosecution of himself
for the possession charge, throwing the drugs to the ground was
not an act of concealment that will sustain the additional
obstructing[-]justice offense." M.F., 315 Ill. App. 3d at 650,
734 N.E.2d at 178-79.
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In the case sub judice, the officers were only a short
distance behind defendant, saw him throw the objects, and recov-
ered the same, in an open, well-lit area within seconds. Defen-
dant simply did not conceal anything.
The Florida cases cited by the majority, Hayes and
Jennings, are clearly distinguishable. In Hayes, the defendant
did not merely throw the items in the presence of police
officers--he stuffed them into a drainage outlet. Hayes, 634 So.
2d at 1154. In Jennings, the defendant swallowed the crack
cocaine, resulting in the destruction of the evidence. Jennings,
666 So. 2d at 132. Jennings is quite similar to the Second
District's decision in People v. Brake, 336 Ill. App. 3d 464,
465, 783 N.E.2d 1084, 1085 (2003), where the court affirmed a
defendant's conviction for obstruction when he swallowed a bag of
drugs in the presence of a police officer. I agree with the
reasoning in Hayes, Jennings, and Brake. The acts in those cases
amounted to concealment.
However, other out-of-state cases with similar facts to
the case sub judice support a determination defendant here did
not conceal evidence. See Vigue v. State, 987 P.2d 204, 205
(Alaska App. 1999) (overturned the defendant's tampering-with-
evidence conviction, which was based on defendant dropping
cocaine to the ground when a police officer approached him);
Commonwealth v. Delgado, 544 Pa. 591, 592-93, 679 A.2d 223, 224
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(1996) (overturned the defendant's conviction, finding act of
discarding contraband in plain view of police (the defendant
threw a bag of cocaine on the roof of a small garage while being
pursued by police officers who (1) saw the defendant throw the
object and (2) quickly recovered the object) does not constitute
destruction or concealment of evidence); State v. Fuqua, 303 N.J.
Super. 40, 47, 696 A.2d 44, 48 (1997) (held the New Jersey
hindering statute was "sensibly construed to refer to evidence of
a completed criminal act, not a current possessory crime" and did
not apply where defendant had cocaine concealed in his socks);
State v. Sharpless, 314 N.J. Super. 440, 459, 715 A.2d 333, 343
(1998) (act of discarding contraband in plain view of the police
does not rise to a level of conduct that constitutes destruction
or concealment of evidence); State v. Patton, 898 S.W.2d 732
(Tenn. Crim. App. 1994) (affirmed dismissal of evidence-tampering
indictment that alleged the defendant abandoned a bag of cannabis
by tossing it aside while being pursued by police officers);
Hollingsworth v. State, 15 S.W.3d 586, 590 (Tex. App. 2000)
(reversed evidence-tampering conviction, that was based on the
defendant spitting out cocaine he had in his mouth in front of
police officers, where evidence showed defendant was transporting
crack cocaine in a customary manner and was not trying to impair
its availability as evidence); Boice, 560 So. 2d 1384 (held the
defendant's act of tossing away a bag of crack cocaine in the
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presence of police officers amounted only to abandonment and not
concealment sufficient to convict the defendant).
In Anderson v. State, 123 P.3d 1110, 1111 (Alaska App.
2005), which was decided subsequent to M.F., the defendant was
involved in a car chase with police after he had broken into a
house and shot and robbed one of the occupants. During the
chase, the defendant tossed items out of the car, including a
handgun, magazine for the handgun, and ammunition. Anderson, 123
P.3d at 1111-12. The State charged the defendant with a variety
of offenses, including tampering with evidence, of which he was
convicted. Anderson, 123 P.3d at 1112. On review, the Alaskan
appellate court "conclude[d] that [the defendant's] conduct of
tossing the articles from the car did not constitute the crime of
evidence tampering." Anderson, 123 P.3d at 1112. According to
the court:
"[I]f we were to give a broad interpretation
to the words 'remove', 'conceal', and 'al-
ter', then a person who shoplifted a candy
bar would commit three separate acts of evi-
dence tampering--three separate felonies--
when they (1) walked away from the store with
the candy, (2) unwrapped the candy and depos-
ited the wrapper in a trash receptacle, and
then (3) ate the candy. It seems implausible
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that the legislature intended the statute to
be applied in this manner." Anderson, 123
P.3d at 1118.
However, the Alaskan appellate court stated it was not holding
the "act of tossing away evidence can never constitute evidence
tampering." Anderson, 123 P.3d at 1119. According to the court,
"[t]he test appears to be whether the defendant disposed of the
evidence in a manner that destroyed it or that made its recovery
substantially more difficult or impossible." Anderson, 123 P.3d
at 1119.
While defendant here clearly did not want to have the
items in his possession when the police eventually apprehended
him, his act of throwing the items did not conceal, alter, or
destroy them. The police officers saw him throw the items, knew
the area where the items were thrown, even though the items were
temporarily out of their sight, and were able to easily recover
the items within seconds. Defendant's actions neither destroyed
nor disguised the crack pipe and push rod nor made the recovery
of those items either difficult or impossible. If the items had
been destroyed or their recovery made substantially more diffi-
cult or impossible, then an obstruction conviction would have
been proper. See Anderson, 123 P.3d at 1119. As in M.F., the
evidence of concealment in this case was insufficient to sustain
defendant's conviction for obstruction of justice.
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Lastly, I note a jury found defendant not guilty of
possession of the very paraphernalia that forms the basis for his
conviction for obstruction. At most, defendant here was guilty
of attempt (obstruction of justice).
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