People v. Love ( 2010 )

No. 2-08-1002 Filed: 10-7-10
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 07--CF--1347
)
TERRELL L. LOVE, ) Honorable
) Joseph G. McGraw,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the opinion of the court:
Pursuant to a plea agreement, defendant, Terrell L. Love, pleaded guilty to robbery (720
ILCS 5/18--1(a) (West 2006)) in exchange for four years of probation. As a condition of his
probation, defendant was ordered not to violate any criminal statutes or ordinances of any
jurisdiction. While defendant was on probation, he was arrested for unlawful possession of cannabis
with the intent to deliver (720 ILCS 550/5(c) (West 2006)), armed violence (720 ILCS 5/33A--2
(West 2006)), and unlawful use of a weapon by a felon (720 ILCS 5/24--1.1(a) (West 2006)). The
State petitioned to revoke defendant's probation (730 ILCS 5/5--6--4 (West 2008)).1 The trial court
1
The charges forming the basis of the petition to revoke defendant's probation were also
separately filed in case number 07--CF--4364. In that case, defendant moved to quash his arrest and
suppress the evidence seized, arguing that there was no reasonable basis for the stop preceding the
arrest. The trial court granted that motion, and the State dismissed case number 07--CF--4364.
No. 2--08--1002
granted the petition and sentenced defendant to six years' imprisonment. Defendant timely appeals,
claiming that the State failed to prove that he violated the terms of his probation. We affirm.
The relevant evidence presented at the probation revocation hearing consisted of the
following. Officer Dennis Hill testified that he was working with the Winnebago County sheriff's
department on November 10, 2007. At approximately 12:15 a.m., he was on patrol when he stopped
a car that had an obstructed windshield. Hill observed that there were three people in the car.
Marcus Jones was driving the car, Elliot Cozzi was the front-seat passenger, and defendant was
sitting in the backseat, behind Jones. As Hill approached the car, he saw that the driver's window was
lowered approximately halfway, and Hill detected a strong odor of cannabis emanating from inside
the car. Because Hill detected the smell of cannabis, he asked Jones to exit the car. Before Jones got
out of the car, Jones placed his hand under the driver's seat.
Jones was placed in the back of Hill's squad car, as Hill was preparing to do a search of the
car. Hill then asked defendant and Cozzi to exit the car. Although defendant exited the car before
the search began, Cozzi, who was disabled and unable to walk or stand on his own, remained in the
car until a person he contacted arrived. Hill frisked Cozzi to determine whether he was armed, but
Hill did not pat Cozzi down in an attempt to see whether he was in possession of a controlled
substance.
Before defendant exited the car, Hill saw in the backseat Cozzi's wheelchair and various
articles of clothing. When defendant exited the car, Hill noticed a brown paper bag sitting on the
Although the State opted not to prosecute defendant for the offenses in case number 07--CF--4364,
those charges and the evidence seized in that case may nevertheless be used in the case to revoke
defendant's probation. See People v. Dowery, 62 Ill. 2d 200, 208 (1975).
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backseat. Hill stated that the paper bag "was in a laid down position with like the top just folded
over." The paper bag was folded over once and it was lying on its "long and wide side." Hill also
testified that "if [defendant] was sitting on the seat, [the paper bag] would have been underneath his
[right] thigh." Hill demonstrated for the court where the paper bag was located in relation to
defendant's thigh, and the court clarified for the record that "[Hill] is indicating his hand is placed
under the mid portion of his right thigh."2 Given the location of the paper bag, Hill did not see the
paper bag when he initially approached the car on the driver's side. Inside the paper bag was a
handgun and cannabis. The cannabis was loose inside the paper bag and weighed 31.1 grams.
Although a handgun was discovered between the driver's seat and the center console and
baggies of cannabis were found inside the console, under the driver's seat, and inside one of Jones's
shoes, no contraband other than that in the paper bag was found in the backseat, and Hill noted in his
report that defendant did not smell of cannabis. Hill also did not find any remnants of burnt cannabis
in the car, and he never saw defendant holding the paper bag, any of the cannabis, or either weapon.
When defendant was asked about the guns and the cannabis, he claimed that he did not know that any
of those items were in the car.
For the most part, defendant testified consistently with Hill. However, defendant also testified
that on November 9, 2007, he talked to Jones on the phone at approximately 11 p.m. Defendant
asked Jones if he could give defendant a ride to the gas station to buy cigarettes. Jones arrived at
defendant's house at 11:15 p.m. Before getting in the backseat of Jones's car, defendant noticed
Cozzi's wheelchair behind the front passenger seat. Various other items, including a jacket, a sweater,
and tennis shoes, were also lying on the backseat. Defendant pushed these items out of the way so
2
According to Hill's police report, the paper bag was next to defendant's thigh, not under it.
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that he could sit down on the backseat. Although defendant did not disagree that the brown paper
bag was probably sitting on the backseat, he testified that he never saw it. Moreover, although
defendant asserted that he does not smoke cannabis, he admitted that he knows what burnt cannabis
smells like, and he did not smell burnt cannabis in the car that night. Further, defendant denied
knowing that there was cannabis in the car, having the paper bag under his thigh when Hill
approached the car, and bringing into the car the paper bag, either gun, or any of the cannabis.
The trial court granted the petition to revoke defendant's probation. In doing so, the trial
court noted that the brown paper bag, which was admitted into evidence, was smaller than a grocery
bag but bigger than a brown paper lunch bag. More specifically, the court found that the bag
measured about 10 inches across and 2 feet long. Concerning the gun that was discovered in the
paper bag, the court found that the barrel measured 4½ to 5 inches in length, that the grip of the gun
was 3 to 3½ inches long, and that the height of the gun's slide was 1 inch. Additionally, after
recounting to what Hill and defendant testified, the court found Hill more credible than defendant.
Thus, the court found that, because defendant was at least partially sitting on the bag, he was in actual
possession of the bag. The court asserted that defendant knew what was in the bag, because
defendant could not sit or partially sit on the bag, which contained the steel gun and cannabis, without
knowing on what he was sitting.
At issue in this appeal is whether the State proved that defendant violated the terms of his
probation. At probation revocation proceedings, the State is required to prove a probation violation
by a preponderance of the evidence. 730 ILCS 5/5--6--4(c) (West 2006); People v. Jones, 377 Ill.
App. 3d 506, 508 (2007). A proposition is proved by a preponderance of the evidence when the
proposition is more probably true than not true. People v. Drake, 131 Ill. App. 3d 466, 472 (1985).
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In evaluating whether the State met its burden, the trial judge is free to resolve inconsistencies in the
testimony and to accept or reject as much of each witness's testimony as the judge pleases. See
People v. Howard, 376 Ill. App. 3d 322, 329 (2007). Because the trial judge is in a superior position
to weigh the evidence and decide on the credibility of the witnesses, we may not reverse the judgment
merely because we might have reached a different conclusion. See People v. Houston, 118 Ill. 2d
194, 200 (1987). Rather, we will reverse the court's judgment revoking a defendant's probation only
if it is against the manifest weight of the evidence. People v. Colon, 225 Ill. 2d 125, 158 (2007). A
finding is against the manifest weight of the evidence only if the opposite result is clearly evident.
People v. Keller, 399 Ill. App. 3d 654, 662 (2010). Thus, even where the State's evidence is slight,
we must affirm the revocation of a defendant's probation as long as the opposite conclusion is not
clearly evident. See, e.g., People v. Matthews, 165 Ill. App. 3d 342, 343-45 (1988) (in case where
security officer testified only that he saw the defendant put on a jacket and leave the store without
paying for it, reviewing court affirmed the revocation of the defendant's probation, because, even
though evidence that the defendant violated his probation by committing a retail theft was scant, a
conclusion that the defendant did not commit the crime was not clearly evident).
Here, defendant does not dispute that the paper bag was found in the backseat, that the paper
bag contained a weapon and cannabis, or that he was a convicted felon. Rather, defendant argues
that the State failed to prove that he was in possession of either the gun or the cannabis. Both
defendant and the State agree that, if the evidence did not establish by a preponderance that defendant
was in possession of the gun and cannabis found in the paper bag, defendant's probation should not
have been revoked.
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Because possession is often difficult to prove directly, proving possession frequently rests
upon circumstantial evidence. See People v. Eghan, 344 Ill. App. 3d 301, 307 (2003). In a case
based on circumstantial evidence, each link in the chain of circumstances does not need to be proved
by a preponderance of the evidence if all the evidence considered collectively satisfies the trier of fact
by a preponderance of the evidence that the defendant is guilty. See People v. Hall, 194 Ill. 2d 305,
330 (2000) (providing that, in a case where the defendant claims that he was not proved guilty
beyond a reasonable doubt, each link in the chain of circumstances does not need to be proved
beyond a reasonable doubt if all of the evidence considered collectively establishes the defendant's
guilt).
Possession falls into two categories, i.e., actual and constructive. "Actual possession is
proved by testimony which shows [that the] defendant exercised some form of dominion over the
unlawful substance, such as trying to conceal it or throwing it away." People v. Scott, 152 Ill. App.
3d 868, 871 (1987). On the other hand, "constructive possession" arises when the defendant has the
intent and capability to maintain control and dominion over the contraband. Eghan, 344 Ill. App. 3d
at 307. Constructive possession may be proved by showing that the defendant had knowledge of the
presence of the contraband and had immediate and exclusive control over the area where the
contraband was found. People v. Ingram, 389 Ill. App. 3d 897, 899-900 (2009). A defendant's mere
presence in a car where contraband is found is not enough to establish the defendant's knowledge of
the contraband. Ingram, 389 Ill. App. 3d at 900. However, knowledge may be inferred from several
factors, including (1) the visibility of the contraband from the defendant's location within the car; (2)
the amount of time that the defendant had to observe the contraband; (3) any gestures or movements
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made by the defendant that would suggest that the defendant was attempting to retrieve or conceal
the contraband; and (4) the size of the contraband. Ingram, 389 Ill. App. 3d at 900.
Applying these principles in light of the facts presented here, we determine that the trial
court's finding that defendant had possession of the cannabis and the gun is not against the manifest
weight of the evidence. That is, the evidence established by a preponderance that, at a minimum,
defendant had constructive possession of the bag containing the contraband. Before defendant got
in the car, he noticed several items in the backseat. He saw Cozzi's wheelchair and various items of
clothing. According to defendant, the clothing, which was lying in the area where defendant was
going to sit, included a jacket, a sweater, and tennis shoes. Although defendant was able to describe
all of these items, he claimed that he never saw the rather large paper bag that was also sitting on the
backseat. As the State notes, "[t]he fact that [defendant] saw and could describe all of the other items
he pushed aside raises a serious question as to the credibility of [defendant's] statement that he did
not notice the substantially sized paper bag."
Added to this is the fact that the paper bag was not found underneath the clothes, the
backseat, or Cozzi's wheelchair. Rather, according to Hill, whom the trial court found more credible
than defendant, the paper bag was under defendant's right thigh. Defendant was at least partially
sitting on that bag in that way for an hour. As the State observes, "[s]omeone who took such care
to move noninvasive and soft items like a sweater, jacket, and pair of shoes out of the way so that
he could sit in the back seat would surely move such a large bag with a hard object in it well out of
his way simply for comfort's sake."
The fact that the bag was obscured from Hill's initial view into the car lends further support
to the trial court's conclusion that defendant possessed the bag. That is, because the bag was hidden
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from Hill, a reasonable inference arises that defendant knowingly possessed the contraband. See, e.g.,
People v. Rangel, 163 Ill. App. 3d 730, 740 (1987) (the defendant was found in knowing possession
of a gun found in plain view on the floor of a car where the defendant had been sitting just before he
exited the car). And, no one but defendant had control over the bag. Jones had already been
removed from the car, and Cozzi's physical limitations prohibited him from accessing the backseat.
Defendant claims that the fact that Hill smelled cannabis when he approached the car, but
never smelled cannabis on defendant, somehow mandates a conclusion that defendant could not be
in possession of the paper bag. We find defendant's reliance on that fact unpersuasive. Hill never
testified that he smelled burnt cannabis, and no burnt cannabis was found anywhere in the car or on
Jones, Cozzi, or defendant. That fact is important, because the smell of burnt cannabis, which is very
strong, is entirely different from the smell of cannabis that has not been used. Here, all of the
cannabis found was unused and in some type of container. Thus, it is reasonable that, when defendant
was removed from the car, Hill did not smell cannabis on defendant, who had no cannabis on him and
had been sitting on cannabis that was in a paper bag.
Citing the facts that he did not own the car, he was not driving the car, other people were also
in the car, and a weapon and cannabis were found on Jones and within his immediate control,
defendant claims that the State failed to establish that he was in possession of the gun and cannabis
found in the paper bag. We disagree.
This court has recently found that such facts do not defeat a finding that a defendant
possessed contraband. In Ingram, the defendant was a front-seat passenger in a car that he did not
own. Ingram, 389 Ill. App. 3d at 898. The seat in which the defendant was sitting was fully reclined,
so that it was resting on the back passenger seat. Ingram, 389 Ill. App. 3d at 898. Two people other
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than the defendant--a driver and a backseat passenger--were also in the car. Ingram, 389 Ill. App.
3d at 898.
After the car was stopped because its registration had expired, an officer saw a bullet cartridge
and a bottle of liquor on the floor by the driver's seat. Ingram, 389 Ill. App. 3d at 898. Also found
in the car was a handgun. Ingram, 389 Ill. App. 3d at 898. The handgun, which was in plain view,
was lying on the floor directly behind the driver's seat. Ingram, 389 Ill. App. 3d at 898. Both the
defendant and the backseat passenger would have had access to the gun. Ingram, 389 Ill. App. 3d
at 901.
Based on these facts, a jury found the defendant guilty beyond a reasonable doubt of unlawful
possession of a weapon by a felon. Ingram, 389 Ill. App. 3d at 901. This court affirmed. Ingram,
389 Ill. App. 3d at 901. Although other evidence, like the defendant's flight from the car and his
giving the officer an alias, supported a finding that the defendant was guilty, this court found that the
facts that the defendant did not own the car, the defendant was not driving the car, other people in
the car had access to the weapon, and other contraband was found in an area accessible to another
occupant of the car did not defeat a finding that the defendant had possession of the weapon found
on the floor behind the driver's seat. Ingram, 389 Ill. App. 3d at 900-01.
Here, as in Ingram, those same facts do not warrant a finding that the State failed to prove
by a preponderance of the evidence that defendant was in possession of the gun and cannabis found
in the paper bag. Although such facts might be persuasive in other cases, they are not so here, where
the evidence revealed, among other things, that no one other than defendant had ready access to the
contraband, that defendant was in the car for an hour, that defendant was sitting on the contraband,
and that (given the contraband's size) the contraband must have been noticeable.
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For these reasons, the judgment of the circuit court of Winnebago County is affirmed.
Affirmed.
HUTCHINSON and BURKE, JJ., concur.
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