People v. Southall , 2021 IL App (2d) 200528-U ( 2021 )

2021 IL App (2d) 200528-UNo. 2-20-0528
Order filed December 21, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Boone County.
)
Plaintiff-Appellee, )
)
v. ) No. 18-CF-335
)
RASAHN A. SOUTHALL, ) Honorable
) Robert Tobin,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court.
Presiding Justice Bridges and Justice Hutchinson concurred in the judgment.
ORDER
¶1 Held: (1) The trial court did not err in denying defendant’s motion to suppress contraband
found after a traffic stop; the court properly credited the officer’s testimony that he
witnessed, prior to the stop, that the front passenger’s seatbelt was unfastened.
(2) Defendant’s separate convictions for possession of heroin and possession of
fentanyl violated the one-act, one-crime rule where the substances were blended
together; the cause is remanded for the trial court to vacate the conviction on the
less serious offense.
¶2 Following a stipulated bench trial, defendant, Rasahn A. Southall, was convicted of two
counts of drug possession: possession with the intent to deliver 100 grams or more but less than
400 grams of a substance containing heroin (720 ILCS 570/401(a)(1)(B) (West 2018)) and
2021 IL App (2d) 200528-Upossession with intent to deliver 100 grams or more but less than 400 grams of a substance
containing fentanyl (id. § 401(a)(1.5)(B) (West 2018)). The court sentenced him to concurrent 10-
year prison terms. Defendant appeals, contending that (1) the trial court erred in denying his
motion to suppress where the arresting officer’s squad car video contradicted his courtroom
testimony and (2) his conviction on the two counts of drug possession violates the one-act, one-
crime rule.
¶3 I. BACKGROUND
¶4 Before trial, defendant filed a motion to suppress evidence. At the hearing on the motion,
State trooper Greg Melzer testified that on September 13, 2018, he was patrolling Interstate 90 in
Boone County when he noticed a red Cadillac drifting within its lane. The tires occasionally
touched the lane lines. Melzer was concerned that the driver might be tired, distracted, or impaired,
so he began to follow the Cadillac. As he pulled closer to the Cadillac, he saw the front passenger’s
seatbelt dangling. He continued to follow the Cadillac for a time before initiating a traffic stop.
Melzer identified defendant as the Cadillac’s driver. There was a female passenger in the front
passenger’s seat.
¶5 Melzer testified that as he approached the Cadillac on foot, he asked defendant when he
had taken off his seatbelt. Defendant said that he did so as he was pulling over. On the squad-car
video, Melzer says to defendant: “You [defendant], I couldn’t tell, but her [the passenger] I could
see the belt hanging back here when we pulled to the shoulder.” During questioning by defense
counsel, Melzer agreed that he said that. However, he clarified that he saw the seatbelt dangling
“prior to that.”
¶6 During questioning by the prosecutor, Melzer clarified that as he “pulled up closer to the
vehicle in the right-hand lane,” he could “see that the passenger seatbelt was dangling, visible.”
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2021 IL App (2d) 200528-UHe could not see defendant’s seatbelt, but he could see that of the female passenger. Defendant
testified that he and his passenger did not remove their seatbelts until after Melzer pulled them
over and the Cadillac was completely stopped.
¶7 The trial court denied the motion to suppress. The court determined that the tires touching
the lane line did not provide reasonable grounds for a traffic stop. The court further observed that
weaving within one’s lane may be reasonable grounds for a stop in certain circumstances but that
it did not “necessarily need to make that ruling today” because Melzer testified that the passenger’s
seatbelt was unfastened before he pulled the car over.
¶8 The cause proceeded to a stipulated bench trial. The parties stipulated that Melzer would
testify as he did at the suppression hearing. Melzer would further testify that another trooper and
his K-9 partner conducted a free-air sniff of the vehicle. The dog alerted to the scent of narcotics
in the vehicle, and Melzer found a work glove in the spare-tire compartment. The glove contained
two bags, one containing a white, rock-like substance, and one containing a gray substance.
Forensic scientist Barbara Schuman would testify that one of the bags contained 97.8 grams of a
combination of heroin and fentanyl and the other bag contained 48.3 grams of a combination of
heroin and fentanyl.
¶9 The court found defendant guilty of two counts of possession with intent to deliver. The
prosecutor told the court that the parties had an “agreed disposition,” by which defendant would
be sentenced to “ten years on each of those counts,” with the sentences to run concurrently.
Defendant timely appealed.
¶ 10 II. ANALYSIS
¶ 11 Defendant first contends that the trial court erred in denying his motion to suppress. He
contends that Melzer’s testimony that he observed the passenger’s seatbelt unfastened while
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2021 IL App (2d) 200528-Ufollowing defendant’s vehicle is contradicted by the squad car video, in which he states that he
saw the seatbelt dangling “when [they] pulled to the shoulder.”
¶ 12 In reviewing a trial court’s ruling on a motion to suppress evidence, we defer to the court’s
factual findings, reversing those findings only if they are against the manifest weight of the
evidence. People v. Luedemann, 222 Ill. 2d 530, 542 (2006) (citing Ornelas v. United States, 517
U.S. 690,699 (1996)). However, we review de novo the trial court’s ultimate legal ruling on
whether suppression is warranted. Id.¶ 13 We note initially that Melzer’s testimony that he saw the passenger’s seatbelt dangling as
he approached the Cadillac on the shoulder is not necessarily inconsistent with his having seen it
earlier. When confronted by defense counsel with the alleged inconsistency, he testified that he
meant that he had seen it earlier, while still following the car on the highway. However, even if
the two statements are irreconcilably inconsistent, this merely created a conflict in the evidence
for the trial court to resolve. See id.¶ 14 Defendant concedes that it is “not physically impossible” for Melzer to have observed the
passenger’s seatbelt before initiating the traffic stop, but he deems it “highly improbable.” He
points to Melzer’s testimony that he observed the passenger’s seatbelt “dangling” when he was
following defendant’s car in the right lane. Defendant argues that Melzer was following several
car lengths behind at this point and that the seatbelt cannot be seen in the video at this time.
¶ 15 Defendant points to no evidence that contradicts Melzer’s testimony. Melzer testified
unequivocally that he could see the seatbelt before pulling the car over. He said that he observed
the car even before turning on his lights. Moreover, the camera was not at the same angle as
Melzer, who, sitting in the left seat of the squad car, was likely closer to defendant’s car than the
camera. Melzer testified that he saw the seatbelt while he was relatively close to defendant’s car.
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2021 IL App (2d) 200528-UThe trial court found Melzer credible on this point. We defer to the court’s credibility
determinations, and we will not reverse the court’s findings based on a highly speculative analysis
of “probabilities.”
¶ 16 The trial court reasonably found that Melzer observed a seatbelt violation, providing him
with reasonable grounds to stop defendant’s car. Indeed, defendant does not dispute that if Melzer
saw the passenger’s seatbelt unfastened while the car was in motion, Melzer had reasonable
grounds for a traffic stop. Defendant does not take issue with the subsequent canine sniff and
resulting search of the car. Therefore, the trial court did not err in denying defendant’s motion to
suppress.
¶ 17 Defendant next contends that the trial court improperly convicted him of two offenses. He
notes that he was convicted of and sentenced for possession of 100 or more grams of a substance
containing heroin and possession of 100 or more grams of a substance containing fentanyl. He
argues that, because the combined weight of the two bags found in his trunk was only
approximately 146 grams, his convictions violate the one-act, one-crime rule. Defendant concedes
that he did not preserve this issue for review but asks that we consider it under the plain-error
doctrine, which provides a limited and narrow exception to the general rule of procedural default
(People v. Rebollar-Vergara, 2019 IL App (2d) 140871, ¶ 92).
¶ 18 The State responds that defendant’s forfeiture of the issue goes beyond mere procedural
default; rather, defendant affirmatively agreed to concurrent sentences for two convictions and
thus invited the error.
¶ 19 A defendant may not be convicted of multiple offenses when those offenses are based on
precisely the same physical act. People v. Coats, 2018 IL 121926, ¶ 11. A one-act, one-crime
violation falls within the second prong of the plain-error doctrine as an obvious error so serious
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2021 IL App (2d) 200528-Uthat it challenges the integrity of the judicial process. Id. ¶ 10. Whether the rule was violated is a
question of law that we review de novo. Id. ¶ 12.
¶ 20 Thus, if defendant was improperly convicted of two offenses based on a single act of
possession, plain error occurred and we must vacate the excess conviction despite defendant’s
forfeiture. We do not accept the State’s premise that defendant invited the error by agreeing to
accept two concurrent sentences. As noted, an excess conviction challenges the integrity of the
judicial process (id. ¶ 10). The sentencing agreement was not announced until after the trial court
had found defendant guilty of the two offenses. Defendant could not agree to an improper second
conviction merely by accepting the State’s offer of concurrent 10-year sentences.
¶ 21 Turning to the merits, defendant contends that he could not be convicted of simultaneously
possessing more than 100 grams of both heroin and fentanyl when the two substances were mixed
and their total combined weight was less than 200 grams. We agree. To explain why, we briefly
survey cases involving the simultaneous possession of multiple controlled substances.
¶ 22 In People v. Manning, 71 Ill. 2d 132 (1978), the defendant was arrested while in possession
of “a variety of pharmaceutical pills and capsules” containing barbiturates and amphetamines. Id.
at 133. The court held that, in the absence of a clear statutory provision to the contrary, the
defendant’s possession of multiple controlled substances constituted a single offense. Id. at 137.
¶ 23 In the wake of Manning, the legislature amended the controlled substances statutes to
provide that “persons who violate this Act with respect to the *** possession with intent to deliver
*** of more than one type of controlled substance listed herein may accordingly receive multiple
convictions and sentences under each Section of this Act.” 720 ILCS 570/100 (West 2018); see
People v. Bui, 381 Ill. App. 3d 397, 427 (2008).
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2021 IL App (2d) 200528-U¶ 24 In Bui, the defendant was convicted on two counts of possession of a controlled substance
with intent to deliver after the police intercepted a package addressed to defendant. The package
held pink pills that contained a mixture of MDMA and methamphetamine. Id. at 401. The First
District held that, in light of the statutory amendment, both convictions could stand. Id. at 427.
¶ 25 In People v. Coger, 2019 IL App (1st) 163250, the First District revisited the issue and
held that the defendant could not be convicted of two separate offenses for possessing a mixture
of cocaine and heroin. There, the defendant delivered to an undercover officer three foil packets
containing a mixture of heroin and cocaine. Id. ¶¶ 3-8. The court held that, despite the statutory
amendment, defendant’s possession of the packets constituted only one offense of unlawful
possession. Id. ¶¶ 37-28.
¶ 26 The court gave several reasons for its holding. First, the facts of Coger, in which the
defendant possessed a blend of controlled substances, were distinguishable from Manning, “which
was the fact pattern that the legislature sought to address when it amended the Act.” Id. ¶ 33. The
court explained:
“In Manning, the defendant simultaneously possessed two different, completely separate
controlled substances—he just happened to possess them both at the same time. In Bui,
and in [Coger], the defendant possessed or delivered one controlled substance which was
a blend *** of two controlled substances.” Id.¶ 27 Second, the court noted that treating the possession of that blend as two separate crimes
did nothing to further the Act’s purpose of “discouraging drug use and increasing severity based
on the amount of drugs a defendant puts into the marketplace.” Id. ¶ 34. The user of the compound
could not separate it into two narcotics for separate use. Id. Each packet represented one, and
only one, inseparable drug blend. Id.-7-
2021 IL App (2d) 200528-U¶ 28 Third, the court found that its interpretation was mandated by the Act’s specific language:
“Third, the statute under which Ms. Coger was charged criminalizes the delivery of
specific amounts of a ‘substance containing’ certain illegal drugs. 720 ILCS 570/401(d)
(West 2014). Our supreme court has held that this language means that we include all
ingredients in the ‘substance’ when we determine the weight of the drugs for sentencing
purposes. People v. McCarty, 223 Ill. 2d 109, 125 (2006). At the same time, the State asks
us to separate out the various ingredients discerned after testing and convict the defendant
for multiple crimes based on these component parts. Following this reasoning, we would
be aggregating the ingredients in the ‘substance’ for purposes of weight but separating
those ingredients when such separation can lay the foundation for multiple crimes. This is
an inconsistency that can only work to the detriment of a criminal defendant.” Id. ¶ 35.
¶ 29 Finally, the court noted that a contrary reading of the statute could relieve the State of
proving the requisite mental state of knowledge in the absence of evidence that the defendant knew
how many different controlled substances the compound contained. Id. ¶ 36.
¶ 30 In People v. Wilson, 2021 IL App (1st) 181283-U, the court reiterated its holding in Coger.
Defendant cites Coger and Wilson in urging us to vacate one of his convictions. The State insists,
however, that both are distinguishable and that Bui is the proper analog to this case.
¶ 31 We agree that Coger correctly states the law, and we follow it here. As in Coger, defendant
possessed a mixture containing two controlled substances. The substances could not be separated
for individual use. As in Coger, to follow the State’s logic, “we would be aggregating the
ingredients in the ‘substance’ for purposes of weight but separating those ingredients when such
separation can lay the foundation for multiple crimes.” Coger, 2019 IL App (1st) 163250, ¶ 35.
The State points to no evidence that defendant knew the powder contained multiple controlled
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2021 IL App (2d) 200528-Usubstances. The First District in Coger correctly declined to follow Bui, as that case focused solely
on the statutory language permitting multiple convictions for possessing multiple types of
substances and did not consider how that language applied in the specific factual context of
blended substances.
¶ 32 The State’s attempt to distinguish Coger is unavailing. The State argues that Coger
“ignored” that the State does not have to prove that defendant knew the specific type of controlled
substance he possessed. This may be true, but to prove a defendant guilty of two counts of
possession based on possessing different substances, the State must prove that the defendant knew
that he possessed two different substances. In any event, the “knowledge” factor was only one of
the factors the Coger court considered.
¶ 33 The State, citing Bui, again points to the statutory language permitting a defendant who
possesses more than one type of controlled substance to receive multiple convictions and
sentences. The State, however, ignores that this language was meant to address the situation in
Manning where a defendant possesses discrete quantities of multiple substances. Coger explained
why the statute does not logically apply to a situation where a defendant possessed a mix of
multiple controlled substances. See Id. ¶ 35.
¶ 34 Defendant acknowledges that the different appearance of the powders in the two bags at
least permits the inference that they contained different substances, but he argues that this is
irrelevant. We agree that the rationale of Coger governs this situation, given that the combined
weight of the two bags was less than 200 grams. We would still be “aggregating the ingredients
in the ‘substance’ for purposes of weight but separating those ingredients when such separation
can lay the foundation for multiple crimes.” Id.-9-
2021 IL App (2d) 200528-U¶ 35 One of defendant’s convictions must be vacated. Generally, we would vacate the less
serious conviction. However, the statute prescribes an identical range of penalties for each offense;
thus neither is inherently less serious. “When it cannot be determined which of two or more
convictions based on a single physical act is the more serious offense, the cause will be remanded
to the trial court for that determination.” People v. Artis, 232 Ill. 2d 156, 177 (2009). Thus, we
remand the cause to the trial court to decide which conviction to vacate.
¶ 36 III. CONCLUSION
¶ 37 We affirm in part and reverse in part the judgment of the circuit court of Boone County.
We remand the cause for further proceedings consistent with this order.
¶ 38 Affirmed in part, vacated in part.
¶ 39 Cause remanded.
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