People v. Starks ( 2019 )

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Appellate Court Date: 2019.08.26
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People v. Starks, 2019 IL App (2d) 160871Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KEITH L. STARKS, Defendant-Appellant.
District & No. Second District
Docket No. 2-16-0871
Filed June 28, 2019
Decision Under Appeal from the Circuit Court of Kane County, No. 15-CF-307; the
Review Hon. Linda S. Abrahamson, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Thomas A. Lilien, and R. Christopher White, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Joseph H. McMahon, State’s Attorney, of St. Charles (Patrick Delfino,
David J. Robinson, and Marshall M. Stevens, of State’s Attorneys
Appellate Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Justices Jorgenson and Spence concurred in the judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Keith L. Starks, was convicted of one count of unlawful
possession of a controlled substance with intent to deliver within 1000 feet of a church (720
ILCS 570/407(b)(1) (West 2014)) and one count of driving while his license was revoked (625
ILCS 5/6-303(a) (West 2014)). Following a simultaneous bench trial, defendant was also
convicted of one count of aggravated unlawful possession of a weapon by a felon (720 ILCS
5/24-1.1(a) (West 2014)). The trial court sentenced defendant to eight years’ imprisonment on
the drug conviction and five years’ imprisonment on the weapon conviction, to be served
concurrently. Defendant argues that his drug conviction should be reduced to simple
possession, because the evidence did not prove beyond a reasonable doubt defendant’s intent
to deliver. Defendant also argues that his weapon conviction should be reversed because a
baton does not qualify as a “bludgeon” within the meaning of the statute. For the following
reasons, we affirm.
¶2 I. BACKGROUND
¶3 On May 6, 2016, defendant was charged in a four-count indictment relating to actions
alleged to have occurred on February 24, 2015. Count I alleged unlawful possession of a
controlled substance with intent to deliver within 1000 feet of a church, in that, “while within
1000 feet of a Church, Elgin Community Church, [defendant] knowingly and unlawfully
possessed with the intent to deliver to another, one or more grams, but less than 15 grams of a
substance containing cocaine [(a Class X felony)].” Count II alleged aggravated unlawful
possession of a weapon, in that defendant, “who has been convicted of a felony[,] knowingly
possessed a bludgeon, being a metal expandable baton [(a Class 3 felony)].” Count III alleged
unlawful possession of a controlled substance, in that defendant “knowingly and unlawfully
possessed less than 15 grams of a substance containing cocaine [(a Class 4 felony)].” Count
IV alleged that defendant “operated a motor vehicle at a time when [defendant’s] driver’s
license was suspended or revoked [(a Class A misdemeanor)].”
¶4 On April 6, 2016, a “reindictment” was issued. Counts I, III, and IV were realleged as in
the original indictment, but count II was elevated to a Class 2 felony, based on defendant’s
prior Class-2-or-greater drug conviction.
¶5 On April 8, 2016, the trial court granted defendant’s motion to sever count II. Defendant
waived a jury trial on count II, and the State nol-prossed count III.
¶6 On April 11, 2016, a bench trial was held on count II, aggravated unlawful use of a weapon,
and a jury trial was held on counts I and IV, alleging unlawful possession of a controlled
substance with intent to deliver within 1000 feet of a church and driving while his license was
revoked, respectively.
¶7 Detective Tom Wolek of the Elgin Police Department testified as follows. Wolek had
worked for the department for 20 years and was a detective with the “special investigations
division.” On February 24, 2015, Wolek conducted in a narcotics investigation with Officer
Shaun Schroeder, Detective Gorcowski, and Sergeant Bianchi. Wolek drove an unmarked
sport-utility squad vehicle and the others rode along as passengers. Wolek wore a bulletproof
vest with police markings on the front and back. Wolek drove to the area of Mark Avenue and
Mildred Avenue and began following a Honda Civic. The Civic turned onto Mildred Avenue
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and then proceeded to McLean Boulevard. The driver of the Civic did not activate the car’s
turn signal at least 100 feet before turning onto McLean. Wolek continued to follow the Civic
and then attempted to conduct a traffic stop by activating his vehicle’s flashing lights. But the
Civic did not pull over; instead it continued on McLean and turned into Hooper’s Sports Bar’s
parking lot. “Basically, [the Civic] drove around the entire bar, the front, the side and the back
and then came back out to the front.” When the Civic was near the back of the bar, Wolek
activated his vehicle’s spotlight and siren. But the Civic did not stop. Instead, it returned to the
area in front of the bar, started heading back toward McLean, and then stopped.
¶8 Wolek approached the driver’s window of the Civic with his gun out of its holster for
“safety,” because it was suspicious that the vehicle had not stopped immediately. Wolek
ordered the driver, defendant, to exit the vehicle. Wolek handcuffed defendant because Wolek
knew that defendant’s driver’s license had been revoked. Gilberto Feliciano was in the front
passenger seat of the Civic. After Wolek and Officer Jordan Rapacz handcuffed defendant,
they searched him and found “a box of plastic [sandwich] baggies [and] several loose plastic
baggies.” Defendant was then taken to the Elgin Police Department.
¶9 When Wolek searched the Civic, he found a large Ziploc sandwich bag on the driver’s-side
floorboard and a sandwich bag “containing suspect[ed] drugs [appearing] white in color” on
the passenger’s-side floorboard. Wolek also recovered a dark-colored jacket on the driver’s
seat, near the center console. Inside the jacket, Wolek found a metal, expandable baton. The
baton was similar to batons issued to police officers “for use of force [and] protection.” All the
items Wolek found were given to Officer Schroeder.
¶ 10 At the police station, Wolek advised defendant of his Miranda rights and defendant signed
a Miranda waiver form, which the trial court admitted into evidence. See Miranda v. Arizona,
384 U.S. 436 (1966). Wolek testified that defendant told him that he had been with Feliciano
at a relative’s house shortly before the traffic stop. Defendant told Wolek that he was driving
Feliciano’s car because Feliciano was experiencing a medical issue that prevented Feliciano
from driving. Defendant also told Wolek that he did not immediately stop the car because he
was scared and that the drugs were not his. But defendant admitted to Wolek that the plastic
bags found on his person belonged to him, as well as the jacket and the baton.
¶ 11 On April 5, 2016, Wolek and Detective Craig Tucker, a narcotics investigator, went back
to the parking lot where the traffic stop had occurred, and they measured the distance between
the location of defendant’s Civic and the nearby Elgin Community Church, using a measuring
wheel. The distance measured was less than 1000 feet.
¶ 12 The police video of the traffic stop was played in court. The trial court admitted into
evidence all the items found at the scene of the traffic stop and a certified copy of defendant’s
driver’s abstract, which showed that defendant’s license was revoked at the time of his arrest.
¶ 13 Schroeder testified as follows. Schroeder assisted Wolek with the traffic stop of defendant.
Schroeder approached the passenger side of defendant’s car, had Feliciano exit the car, and,
upon searching him, discovered five “fake” $20 bills in Feliciano’s possession. After
Schroeder completed his search of Feliciano, Feliciano started to shake and convulse. Feliciano
told Schroeder that he had epilepsy and that he had not taken his medication. Feliciano was
taken to the Elgin police station and then to the hospital.
¶ 14 After Feliciano left the scene, Schroeder looked inside the passenger side of the Civic and
saw “a medium-size clear plastic knotted bag” on the floor. The bag contained “various clear
plastic knotted bags containing an off-white rocky substance.” Schroeder took the bag to the
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police station and gave it to Tucker. Wolek had given Schroeder a jacket, a collapsible baton,
and a medium Ziploc bag, all of which Schroeder also gave to Tucker.
¶ 15 Feliciano testified as follows. On the day of the incident, he drove the Civic, picked
defendant up in the Civic, and asked defendant to drive, explaining that he was not feeling
well. Allan Fox owned the Civic. When defendant saw the police lights, he handed Feliciano
“what looked like a bag of drugs *** [i]t was like a sandwich, sandwich-like bag, and there
was a bunch of other little baggies inside of it. It was clear plastic.” Feliciano did not take the
bag of drugs. Feliciano had two retail theft cases pending—one in McHenry County and the
other in Kane County—in which he pleaded guilty and had been placed in treatment alternative
court. Feliciano had not been offered anything from the prosecutor in this case for his
testimony.
¶ 16 Tucker testified as follows. On the night in question, he received from Schroeder “one
baggy that contained another plastic baggy that contained several little plastic baggy corners,
each filled with suspect[ed] cocaine.” There were 20 little plastic bag corners. Tucker weighed
all 20 plastic bag corners; they weighed 15.2 grams. Tucker field-tested the contents, placed
the evidence into an envelope, sealed it, and brought it to a locked evidence storage room. He
followed the same procedure for the other evidence he received from Schroeder.
¶ 17 Illinois State Police forensic scientist Martin Skelcy testified as follows. He received 20
hand-tied small plastic bags from officer Jim Malone. These 20 bags, which contained a rock-
like substance, weighed 9.9 grams. The contents of 15 of the bags weighed 6.1 grams. Skelcy
did not weigh the contents of the remaining five bags. After testing the contents of each of the
15 bags, Skelcy concluded that the bags contained cocaine.
¶ 18 Over defendant’s objection, James Bisceglie of the Elgin Police Department’s technical
investigations unit testified as follows as an expert “in the area of drug investigations, delivery,
[and] possession with intent to deliver.” Bisceglie reviewed the police reports, the physical
evidence, and the lab reports, and he spoke to the officers involved in the case. He did not
participate in the case. To form his opinion as to defendant’s intent, Bisceglie considered the
totality of the circumstances and items of evidence in the case, including information that
experts would commonly use, such as the weight of the drugs, the way the drugs were
packaged, the lack of user paraphernalia, the presence of cash, and the presence of a weapon.
Bisceglie opined that, “typically, if someone is packaging narcotics for sale, it is going to be
split up into more than one baggy, more than one plastic bag to sell to more than one person.
If it is a use amount, typically *** it may be in one bag and [the] user [him]self is going to split
that up into different amounts to use at different periods of time.” Bisceglie also opined that
crack cocaine is typically packaged by cutting off the corners of a sandwich bag and that the
bag is “tied up in a very fine little knot where the crack cocaine is in the corner of the bag.”
Bisceglie opined that the presence of additional bags was consistent with defendant being a
drug dealer, because a drug dealer might have extra packaging on him to “to package drugs at
a later time.” The lack of user paraphernalia and the presence of a weapon—the baton—were
consistent with defendant being a dealer rather than a user. The dollar value of the drugs in this
case, approximately $1000, was inconsistent with personal use.
¶ 19 Following Bisceglie’s testimony, the State rested. Defendant moved for a directed verdict
regarding possession with intent to deliver, which the court denied. Defendant rested without
presenting evidence. On April 12, 2016, the jury found defendant guilty of unlawful possession
of a controlled substance with intent to deliver within 1000 feet of a church and driving while
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his license was revoked, and the trial court found defendant guilty of aggravated unlawful
possession of a weapon by a felon.
¶ 20 On May 11, 2016, defendant filed a motion to reconsider or for a new trial, which the trial
court denied.
¶ 21 On September 27, 2016, the trial court sentenced defendant to an eight-year prison term
for his conviction of unlawful possession of a controlled substance with intent to deliver within
1000 feet of a church, to be served concurrently with a five-year prison term for his conviction
of aggravated unlawful possession of a weapon by a felon.
¶ 22 On October 6, 2016, defendant filed his notice of appeal, and on October 26, 2016, he filed
an amended notice of appeal.
¶ 23 II. ANALYSIS
¶ 24 A. Unlawful Possession of a Weapon by a Felon
¶ 25 Defendant urges this court to reverse his conviction of unlawful possession of a weapon by
a felon, arguing that the collapsible metal baton he possessed does not constitute a “bludgeon”
within the meaning of section 24-1(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS 5/24-
1(a)(1) (West 2014)). Defendant does not dispute that he was a convicted felon or that he
possessed the baton at the time of his arrest. The State counters that the baton qualifies as a
“bludgeon” within the meaning of the statute. We agree with the State.
¶ 26 We begin with the statute and the familiar rules of statutory construction. The fundamental
rule of statutory construction is to ascertain and give effect to the legislature’s intent. People
v. Giraud, 2012 IL 113116, ¶ 6. The best indication of legislative intent is the statutory
language, given its plain and ordinary meaning. Id. When the statute contains undefined terms,
we may employ a dictionary to ascertain the plain and ordinary meanings of those terms.
People v. Davison, 233 Ill. 2d 30, 40 (2009). Further, we will assume that the undefined terms
were intended to have their ordinary and popularly understood meanings, unless doing so
would defeat the perceived legislative intent. People v. Fink, 91 Ill. 2d 237, 240 (1982). Where
the language is clear and unambiguous, we will apply the statute without resort to further aids
of statutory construction. Id. Additionally, we read and interpret the statute as a whole so that
no part is rendered meaningless or superfluous. People v. Lloyd, 2013 IL 113510, ¶ 25. We
may also consider the consequences of construing the statutory language one way rather than
another, and in doing so, we presume that the legislature did not intend the statute to have
absurd, inconvenient, or unjust consequences. People v. Koen, 2014 IL App (1st) 113082, ¶ 30.
The construction of a statute is a question of law, which is reviewed de novo. Davidson, 233
Ill. 2d at 40.
¶ 27 Section 24-1.1 of the Code reads in pertinent part:
“Unlawful Use or Possession of Weapons by Felons ***
(a) It is unlawful for a person to knowingly possess on or about his person or on his
land or in his own abode or fixed place of business any weapon prohibited under
Section 24-1 of this Act or any firearm or any firearm ammunition if the person has
been convicted of a felony under the laws of this State or any other jurisdiction.” 720
ILCS 5/24-1.1(a) (West 2014).
¶ 28 Incorporated therein, section 24-1 of the Code reads in pertinent part:
“Unlawful Use of Weapons
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(a) A person commits the offense of unlawful use of weapons when he knowingly:
(1) Sells, manufactures, purchases, possesses or carries any bludgeon, black-
jack, slung-shot, sand-club, sand-bag, metal knuckles or other knuckle weapon
regardless of its composition, throwing star, or any knife, commonly referred to as
a switchblade knife, which has a blade that opens automatically by hand pressure
applied to a button, spring or other device in the handle of the knife, or a ballistic
knife, which is a device that propels a knifelike blade as a projectile by means of a
coil spring, elastic material or compressed gas; or
(2) Carries or possesses with intent to use the same unlawfully against another,
a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of
glass, stun gun or taser or any other dangerous or deadly weapon or instrument of
like character[.]” Id. § 24-1(a)(1), (2).
¶ 29 The statute does not define the term “bludgeon,” and courts have been reluctant to develop
a broad definition of the term. People v. Kohl, 364 Ill. App. 3d 495, 502 (2006); accord People
v. Perry, 397 Ill. App. 3d 358, 361-62 (2010). The supreme court has noted that “Webster’s
Third New International Dictionary 240 (1971) defined ‘bludgeon’ as ‘a short stick used as a
weapon usu[ally] having one thick, heavy or loaded end: billy.’ ” Fink, 91 Ill. 2d at 240.
Black’s Law Dictionary has defined “bludgeon” as “ ‘[a] heavy club or stick used as a weapon,
commonly weighted in one end by metal.’ ” Perry, 397 Ill. App. 3d at 361 (quoting Black’s
Law Dictionary 157 (5th ed. 1979)).
¶ 30 However, a bludgeon need not take the form of a club or a stick. People v. Collins, 6 Ill.
App. 3d 616, 619 (1972). In Collins, the appellate court held that a heavy metal chain wrapped
with tape satisfied the definition of a “bludgeon.” Id. In Perry, the appellate court held that a
reasonable jury could find that a padlock in a sock is a bludgeon. Perry, 397 Ill. App. 3d at
362. In both Collins and Perry, the courts reasoned that the items at issue had no legitimate
use other than as a weapon. Collins, 6 Ill. App. 3d at 619; Perry, 397 Ill. App. 3d at 362.
¶ 31 Here, defendant repeatedly argues that he possessed merely a baton or a nightstick and that
the fact that a baton can be club-like does not make it a bludgeon. But defendant ignores the
actual nature of what he possessed; it was not merely club-like. Defendant possessed a metal
baton, 8 inches long when collapsed, which would extend forcibly and instantly to 21 inches
when the user flicked his wrist. Additionally, the baton was weighted and thicker at one end,
and it weighed nearly one pound. It is clear from the definitions provided above and from the
other weapons listed in section 24-1(a)(1) that defendant’s collapsible metal baton was a
“bludgeon” within the meaning of the statute.
¶ 32 In addition, the legislative intent of the unlawful-use-of-weapons statute (720 ILCS 5/24-
1 (West 2014)) is to protect the police and the public from dangerous weapons. People v.
Pulley, 345 Ill. App. 3d 916, 923-24 (2004). The legislative intent of the unlawful-use-or-
possession-of-weapons-by-felons statute (720 ILCS 5/24-1.1 (West 2014)) is “ ‘to keep
dangerous weapons, including but not limited to firearms, out of the hands of convicted felons
in any situation whether it be in the privacy of their own home or in a public place.’ ” People
v. Nowells, 2013 IL App (1st) 113209, ¶ 22 (quoting People v. Kelly, 347 Ill. App. 3d 163, 167
(2004)). Strictly construing the term “bludgeon” to exclude defendant’s collapsible metal baton
would be contrary to the purposes for which the statutes were enacted and lead to an absurd
result. See People v. Smith, 2013 IL App (2d) 121164, ¶ 9; accord People v. Trzeciak, 2013 IL
114491, ¶ 40.
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¶ 33 Defendant cites People v. Fink, 94 Ill. App. 3d 816 (1981), to support his argument. In
Fink, this court held that a nightstick was not a bludgeon within the meaning of the statute at
issue. Id. at 819. Our supreme court held that “nightstick” is within the broad definition of
“bludgeon” but is also within the specific definition of “billy.” Fink, 91 Ill. 2d at 240. The
supreme court thus affirmed this court’s dismissal of the complaint, because the State had not
charged the defendant with possession of a nightstick or a billy with intent to use it unlawfully
against another in violation of section 24-1(a)(2). Id. In contrast, defendant in this case did not
possess a simple nightstick or billy; rather, he possessed a collapsible metal baton, weighted at
one end and extendable with a flick of the wrist. The nightstick in Fink was not weighted and
there was no indication that it was extendable with a flick of the wrist. See Fink, 94 Ill. App.
3d at 817. Further, a collapsible metal baton is not a specific type of billy. Accordingly, this
case is distinguishable from Fink.
¶ 34 B. Possession of a Controlled Substance With Intent to Deliver
¶ 35 Next, defendant argues that the State failed to prove beyond a reasonable doubt that he was
guilty of possession of a controlled substance with intent to deliver. Defendant contends that
there was no evidence of a transaction, the amount of cocaine was consistent with personal
use, and there were no other factors to suggest that he intended to deliver it. Defendant,
therefore, urges this court to reduce his conviction to simple possession of a controlled
substance and remand the cause for resentencing.
¶ 36 In all criminal cases, when a defendant challenges the sufficiency of the evidence, the
relevant question for the reviewing court 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. People v. Bush, 214 Ill. 2d 318, 326 (2005)
(citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). Under this standard, a reviewing
court must allow all reasonable inferences from the record in favor of the prosecution. Id. To
convict a defendant of possession of a controlled substance with intent to deliver, the State
must prove that the defendant (1) had knowledge of the presence of the narcotics, (2) had
possession or control of the narcotics, and (3) intended to deliver the narcotics. 720 ILCS
570/401 (West 2014); People v. Robinson, 167 Ill. 2d 397, 407 (1995). Defendant does not
dispute the first two elements.
¶ 37 “Because direct evidence of intent to deliver is rare, such intent must usually be proven by
circumstantial evidence.” Robinson, 167 Ill. 2d at 408. Accordingly, “this issue involves the
examination of the nature and quantity of circumstantial evidence necessary to support an
inference of intent to deliver.” Id. In Robinson, our supreme court noted that numerous factors
have been considered by Illinois courts as probative of a defendant’s intent to deliver. Id. These
factors include (1) whether the quantity of the controlled substance in the defendant’s
possession is too large to be viewed as being for personal consumption; (2) the high purity of
the substance; (3) the possession of weapons; (4) the possession of large amounts of cash;
(5) the possession of police scanners, beepers, or cellular telephones; (6) the possession of drug
paraphernalia; and (7) the manner in which the substance is packaged. Id. However, Robinson
clearly intended to merely provide examples of factors and to allow courts to consider others.
Id. at 408-15; see Bush, 214 Ill. 2d at 324.
¶ 38 Defendant argues that, based on the circumstantial factors in Robinson, the State failed to
prove beyond a reasonable doubt that he intended to deliver the cocaine. Specifically,
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defendant argues that the 9.9 grams of cocaine found is entirely consistent with personal
consumption. See People v. Ellison, 2013 IL App (1st) 101261, ¶ 15 (describing expert
testimony on amounts of cocaine and finding 3.112 grams of cocaine to be consistent with
personal use).
¶ 39 “The quantity of [a] controlled substance alone can be sufficient to prove an intent to
deliver.” People v. Beverly, 278 Ill. App. 3d 794, 799 (1996). However, “[w]hen the amount
of substance seized is an amount that may be considered consistent with personal use,
additional evidence of intent to deliver is required to support a conviction.” Id.¶ 40 Here, taking the evidence in the light most favorable to the State, we determine that the
evidence is sufficient to sustain defendant’s conviction. Upon searching defendant and the car
he was driving, Wolek and Rapacz recovered a box of sandwich bags, a large sandwich bag
containing 20 smaller corners of bags—each containing cocaine, weighing a total of 9.9
grams—and a collapsible baton, which we have determined is a weapon. Bisceglie, an expert
on drug investigations, delivery, and possession with intent to deliver, opined that defendant
intended to deliver. Bisceglie based his opinion on, inter alia, the weight of the cocaine, the
way the cocaine was packaged, the lack of user paraphernalia, and the presence of a weapon.
It is the responsibility of the trier of fact to weigh the evidence and to draw reasonable
inferences from the facts, and this court will not substitute its judgment for that of the factfinder
on questions involving the weight of the evidence. People v. Bradford, 2016 IL 118674, ¶ 12.
We conclude that the evidence supports defendant’s conviction of possession of a controlled
substance with intent to deliver.
¶ 41 Defendant cites numerous cases to support his argument. However, whether the State has
established intent to deliver is resolved on a case-by-case basis, and the fact that evidence in
one case is not as strong as that in other cases is not controlling. People v. Blan, 392 Ill. App.
3d 453, 457 (2009).
¶ 42 Defendant argues that the amount of cocaine—9.9 grams—was consistent with personal
use, citing numerous cases to support his argument. In Ellison, 2013 IL App (1st) 101261, ¶ 15,
however, “there was no testimony that the amount of drugs recovered—3.112 grams of cocaine
and approximately 0.4 grams of heroin—was inconsistent with personal use.” In this case,
Bisceglie testified that the amount of drugs and their value were inconsistent with personal use.
In addition, defendant possessed a weapon, a factor not present in Ellison. Thus, Ellison is
distinguishable from this case.
¶ 43 In People v. Sherrod, 394 Ill. App. 3d 863, 866 (2009), “[n]o testimony was presented
indicating that 1.8 grams of cocaine ‘could not reasonably be viewed as designed for personal
consumption’ ” (quoting People v. Little, 322 Ill. App. 3d 607, 615 (2001)). Further, no expert
testified regarding the packaging, cost, and typical personal use of controlled substances. Id.Here, Bisceglie testified regarding these issues, opining that the amount of drugs, the manner
of packaging, the additional packaging, and the bludgeon were consistent with intent to deliver.
Accordingly, Sherrod is distinguishable from this case.
¶ 44 III. CONCLUSION
¶ 45 For the reasons stated, we affirm the trial court’s judgment.
¶ 46 Affirmed.
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