People v. Johnson , 2021 IL App (1st) 181585-U ( 2021 )

2021 IL App (1st) 181585-UNo. 1-18-1585
Order filed June 8, 2021
Modified upon denial of rehearing August 31, 2021
Second Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
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. 17 CR 08854
)
DOUGLAS JOHNSON, )
) The Honorable
Defendant-Appellant. ) Michael J. Hood,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction for participation in methamphetamine manufacturing and
possession of methamphetamine manufacturing materials affirmed where: the State proved his
guilt beyond a reasonable doubt, he knowingly and understandingly waived his right to a jury trial,
and the court’s judgment was supported by proper evidence. Defendant’s sentence affirmed where
the court considered relevant aggravating and mitigating factors and did not impose an excessive
prison term.
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¶2 Following a bench trial, defendant Douglas Johnson was convicted of participation in
methamphetamine manufacturing and possession of methamphetamine manufacturing materials
and was sentenced to 11 years’ imprisonment. He appeals his conviction and the sentence imposed
thereon, arguing: (1) the State failed to prove his guilt beyond a reasonable doubt; (2) he did not
knowingly and understandingly waive his right to a jury trial; (3) the court improperly considered
hearsay evidence and incorrectly recalled forensic evidence when finding him guilty; and (4) his
11-year sentence is excessive. For the reasons explained herein, we affirm the judgment of the
circuit court.
¶3 BACKGROUND
¶4 On May 16, 2017, defendant, who had a history of drug addiction, was arrested on his parents’
property. During a search of the property, police officers found methamphetamine paraphernalia
and materials. As a result, defendant was charged with a number of offenses including
participation in methamphetamine manufacturing (720 ILCS 646/15 (2016)) and possession of
methamphetamine manufacturing materials (720 ILCS 646/30 (West 2016)). 1
¶5 Defendant signed a written jury waiver form, which the circuit court accepted, and the cause
proceeded to a bench trial. At trial, defendant’s father, Forrest Johnson, testified that on May 16,
2017, he was residing in Morton Grove with his wife, Jaqueline. At that time, defendant was living
in a “huge container storage box” located behind a storage shed in northeastern corner of their
backyard. Forrest explained that approximately one month earlier, he and his wife had taken
defendant, against whom they had obtained an order of protection, out to dinner. During the dinner
defendant, who was homeless, told his parents that he was cold and “soaking wet all the time from
1
Defendant was also charged with resisting arrest and violating an order of protection. Although
he was ultimately found guilty of all charges, no sentences were imposed on those offenses and
they are not relevant to this appeal.
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the rain,” and was being bitten by animals. After defendant’s revelations, Forrest “thought with
[his] heart instead of [his] brain” and invited defendant to live in the storage box situated in their
backyard even though the arrangement violated the order of protection. Defendant was not
permitted inside their home, however, and Forrest agreed to stay away from the storage container
box while defendant was living there. Defendant was the only individual that Forrest gave
permission to spend time in the backyard.
¶6 Shortly before May 16, 2017, Forrest’s wife became concerned about defendant’s behavior
and asked him to leave their property. Thereafter, on May 16, 2017, Forrest observed defendant
sleeping on a swing located several feet away from their house even though he no longer had
permission to be on their property. At that point, Forrest testified that could not “take it anymore”
and could not bear to see defendant “trying to kill himself slowly in front of [him].” He and his
wife spoke to the drug counselor they had been seeing for the past two years to cope with their
son’s addiction and the counselor advised them to contact the police and have defendant arrested.
Forrest and his wife followed the counselor’s recommendation and spoke to two Morton Grove
police officers. Forrest explained to the officers that he had permitted defendant to live on their
property notwithstanding the order of protection, but that he thought defendant was “doing meth,”
and that he could not take it anymore. Following their conversation, the officers agreed to arrest
defendant. Forrest and Jacqueline returned to their property after the officers advised them that
defendant had been arrested.
¶7 Forrest was shown several photographs taken of his backyard, including the shed and storage
container situated thereon. He testified that a number of the items found in and around the storage
container did not belong to him, including lighter fluid, a wire, a glove, a wire cutter, a wrench, a
syringe, a plastic bag, a pill container, a bottle, coffee filters, and batteries.
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¶8 On cross-examination, Forrest testified that his property backed up to several businesses
located on Waukegan Road and that there had been several incidences where trucks from those
businesses knocked down the fence that enclosed a portion of his backyard. He explained that his
“driveway is open” but that “the rest of yard’s fenced in with two gates that have locks on them.”
Forrest admitted that he was not present when his wife told defendant to leave their property and
did not recall whether he personally made the same request of his son. He also acknowledged that
he regularly observed defendant sleeping in the swing located near the house during his stay.
Forrest further testified that that he took good care of his property and mowed and edged it
regularly; however, he did not tend to the area where the shed and storage container were located
while defendant was residing there.
¶9 Morton Grove police officer Daniel Dahm testified that he was one of the officers who spoke
to the Johnsons on May 16, 2017, about defendant. They relayed that had been letting defendant
stay in their backyard notwithstanding an existing order of protection; however, they explained
that they had observed a change in defendant’s behavior and that they no longer wanted him on
their property. After Officer Dahm verified that defendant’s parents had a valid active order of
protection against him, he relocated to the Johnsons’ property with three other officers. Upon
arriving at the property, the officers observed defendant sleeping in a swing in the backyard. No
one else was present on the property. After one of the officers woke defendant, Officer Dahm
informed him that he was under arrest for violating an order of protection and handcuffed him. He
then secured defendant in the back of his squad car.
¶ 10 Afterwards, Officer Dahm and one of his partners, Officer Walsh, walked around the
backyard to “check the area.” When they did so, he observed some “supplies such as batteries,
some tubing, and lighter fluid” that “seemed out of place.” Based on his training and experience,
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Officer Dahm believed that defendant “could be [using those supplies to] cook[]
methamphetamine.” He explained that the supplies were not scattered throughout the backyard;
rather, they were concentrated in the “northeast corner of the backyard,” where a shed and
storage container were located. As a result, Officer Dahm contacted Commander Paul Yaras and
relayed that he had observed possible evidence of a methamphetamine lab on the Johnsons’
property.
¶ 11 Officer Dahm was shown several pictures of the Johnsons’ backyard and identified several
items that led him to suspect the presence of a meth lab, including batteries, a needle, lighter
fluid, funnels, coffee filters, and “crunched up” water bottles. He explained that he had received
“very basic training” about methamphetamine use and methamphetamine manufacturing during
his tenure as a police officer and knew that items such as coffee filters, batteries, water bottles,
and funnels were commonly used in methamphetamine labs. He reiterated that all the items that
alerted him to the possibility of the presence of a methamphetamine lab were concentrated in one
relatively small area of the Johnsons’ yard and were not scattered throughout the property.
¶ 12 On cross-examination, Officer Dahm admitted that none of the aforementioned suspect
methamphetamine manufacturing items were found on defendant’s person. Moreover, none of
those items were located within an arms-length of the swing on which the officers had found
defendant sleeping; rather, they were located near the shed and storage container that were in the
northeast corner of the Johnsons’ backyard.
¶ 13 Commander Yaras testified that he arrived at the Johnsons’ property shortly after Officer
Dahm advised him about the possible discovery of a methamphetamine lab on the property.
When he arrived at that location, Officer Dahm directed him to a corner of the yard containing
two storage structures. When he walked over to that portion of the backyard, he observed a bag
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hanging on the fence, “some hoses,” water bottles, “a couple buckets on the ground next to the
shed,” “some plastic refuse on the ground,” “some more bags,” and several additional plastic
containers, one of which was coated with a “white-powdery substance.” Commander Yaras also
noticed a “potent” “chemical-type smell” in the area and “a couple discarded batteries.” Because
he had received “some training” about methamphetamine manufacturing, he knew that the items
and smell he noticed were consistent with the existence of a methamphetamine lab. As a result,
he radioed dispatch and requested a “hazardous material response” and several firefighters
responded to the scene. After one of the firefighters relayed their findings to him, Commander
Yaras turned the case over to Detective Anthony Anderson and Officer Patrick Mallaney.
¶ 14 Detective Anderson, a member of the Illinois State Police Narcotics and Currency
Interdiction Task Force (NARCINT), detailed his experience with methamphetamine
investigations and his familiarity with issues pertaining to the manufacture, transportation, and
sale of methamphetamine. He confirmed that he responded to Commander Yaras’s call about a
potential methamphetamine lab on the Johnsons’ property on May 16, 2017. When he arrived at
that location, Detective Anderson observed various items scattered around a shed located in a
corner of the yard, including solvents, heat sources, lighter fluid, tubing, and bottles, which in his
training and experience appeared to be “HCL generators or one-pot meths.” Based on his
observations, he “determined at that point it was a methamphetamine lab” and contacted his
NARCINT boss and the Illinois State Police’s methamphetamine response team. Sergeant Keith
Chestnut and Sergeant Don Clark arrived in response to his call. Both men had experience in
“mitigating” scenes that contained methamphetamine labs. When they arrived, they collected
evidence from the Johnsons’ backyard. They turned over two hypodermic needles to Detective
Anderson’s partner and put other methamphetamine-related materials into various containers.
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¶ 15 Sergeant Chestnut, a member of the Illinois State Police’s narcotics task force and
methamphetamine response team, provided testimony about the training he received concerning
the identification, mitigation, and disposal of methamphetamine components and was certified as
an “expert in the field of methamphetamine identification and methamphetamine
manufacturing.” He testified that he and Sergeant Clark responded to a call about a
methamphetamine lab discovered on the Johnsons’ property. When they arrived at the scene,
they donned safety equipment because methamphetamine labs pose a “number of inhalation
hazards.” After donning respirators and nitrile gloves, they approached a shed located in the
yard and observed “[n]umerous components commonly used in meth labs,” scattered nearby,
including several plastic bottles used as “cooking vessels,” tubing, a funnel, coffee filters, bottles
of sulfuric acid, and a bottle of lye. He explained how those items were used to manufacture
methamphetamine using the “one-pot method.” After observing those items, Sergeant Chestnut
testified that he knew “without a doubt” that he was in the presence of a methamphetamine lab.
He then made a list of the methamphetamine manufacturing components that he observed at the
scene and determined which items were considered HAZMAT materials that needed to be
disposed of in a HAZMAT bunker and which items could be collected and processed as
evidence. He viewed photographs taken of the scene and identified various items that were
collected and processed.
¶ 16 Sergeant Chestnut acknowledged that he did not find evidence of pseudoephedrine, a necessary
component to manufacture methamphetamine, at the scene. He explained, however, the
methamphetamine addicts typically purchase pseudoephedrine at drug stores and then immediately
use it to cook methamphetamine. Because the purchase of pseudoephedrine is regulated, it is
difficult to purchase large quantities, and as such, it is not unusual for him not to find
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pseudoephedrine at clandestine methamphetamine labs. He also acknowledged that a number of
items that he found at the scene were common household items, including plastic bottles and coffee
filters; however, he explained that the accumulation of all the items left him with no doubt that the
materials he found in the Johnsons’ backyard were used to manufacture methamphetamine.
¶ 17 Gina Romano, a forensic scientist at the Northeastern Illinois Regional Crime Lab and an
expert in the field of forensic chemistry, testified that she was assigned to analyze materials
collected from the Johnsons’ backyard, including two syringes. She performed tests accepted in
the field on one of those syringes and concluded that the residue in that syringe contained
methamphetamine. Because she was testing residue, she recorded no measurable weight of the
drug.
¶ 18 Following Romano’s testimony, the parties stipulated that a proper chain of custody had been
maintained with respect to the syringes from the time they were recovered from the Johnsons’
backyard to the time they were sent to the Illinois State Police Crime Lab.
¶ 19 After presenting the aforementioned evidence, the State rested its case. Defendant moved for
a directed verdict, but the motion was denied. Thereafter, defendant informed the court that he
had elected not to testify and the defense rested without presenting any evidence. The cause was
continued, and at the next court date, the parties delivered closing arguments. After considering
the evidence presented and the arguments of the parties, the court found defendant guilty of
possession of methamphetamine manufacturing materials and participation in methamphetamine
manufacturing. In doing so, the court noted that it had found the testimony of the law enforcement
officers involved in the case to be “very credible” and the testimony of defendant’s father to be
“extremely credible.” The court based its finding of guilt on that fact that defendant had “control
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over an approximate 50 square-foot area in the backyard,” which was the area that law enforcement
officials characterized as a “meth lab.”
¶ 20 Defendant’s posttrial motion was denied and the cause proceeded to a sentencing hearing
where the parties presented evidence in aggravation and mitigation. In aggravation, the State noted
that defendant was “class X mandatory for sentencing” due to his prior criminal background and
was thus subject to a sentence of 6 to 30 years’ imprisonment. The State requested the court to
impose a “significant” sentence on defendant given the fact that his meth lab put his “parents’ lives
and property at risk” and posed a risk to everyone else in the “surrounding community.” In
mitigation, the defense noted that defendant had been receiving treatment at Westcare, a substance
abuse treatment center, for the past 10 months and had been attending AA meetings while in jail.
Although defense counsel acknowledged defendant was subject to Class X sentencing, he
requested “something closer to six than the higher end.” The court was presented with letters
written by defendant’s family members on his behalf and defendant delivered a statement in
allocution in which he acknowledged his “pretty significant” criminal history and explained that
it was “an unfortunate byproduct of addiction and really bad choices.” He also acknowledged that
he “need[ed] to be punished for what he did,” but emphasized that he “never meant to hurt
anybody” and asked the court for “mercy.” After considering the aggravating and mitigating
evidence, the court sentenced defendant to 11 years’ imprisonment. In doing so, the court found
that “it was not fair to the rest of the people in the community to sentence [him] to the minimum,”
but indicated that it did not believe that defendant was a “20 to 30 guy either.” The court explained
that for the purposes of sentencing, “Count 2 [possession of methamphetamine manufacturing
material] merges with Count 1 [participation in methamphetamine manufacturing],” and thus the
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sentencing order reflects that defendant was sentenced to 11 years’ imprisonment for participation
in methamphetamine manufacturing.
¶ 21 Defendant’s motion to reconsider his sentence was denied and this appeal followed.
¶ 22 ANALYSIS
¶ 23 A. Sufficiency of the Evidence
¶ 24 On appeal, defendant first challenges the sufficiency of the evidence. Specifically, he argues
that the State failed to prove him guilty of possession of methamphetamine manufacturing
materials “where he was not in actual possession of the materials or in constructive possession
where he was arrested while sleeping on the other side of the yard at a distance from the
materials.” He further argues that the State also failed to prove him guilty of participating in
methamphetamine manufacturing “where there was no evidence that [he] took any physical
action, or participated, in the production of methamphetamine.”
¶ 25 The State, in turn, initially responds that “there is no basis to review” defendant’s
sufficiency of the evidence challenge pertaining to his possession of methamphetamine
manufacturing materials conviction because the circuit court did not impose a sentence on that
offense; rather, the court merged the two methamphetamine-related offenses and only imposed a
sentence on the participation in methamphetamine manufacturing offense. On the merits, the
State submits that “overwhelming evidence” established his guilty of both offenses. That is, the
State argues that the evidence “affirmatively established defendant’s knowledge of and exclusive
control over the meth lab discovered behind his parents’ shed. Moreover, defendant’s knowing
participation in the meth lab’s production of methamphetamine was properly inferred from his
constructive possession of the meth lab and his own guilty conduct.”
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¶ 26 As a threshold matter, we note that it is well-established that where no sentence is imposed
on a charge following a finding of guilt, there is no final order. People v. Relerford, 2017 IL
121094, ¶ 71; People v. Profit, 2021 IL App (1st) 170744, ¶ 35. Based on the record, it is
evident that the circuit court concluded that possession of methamphetamine manufacturing
materials was a lesser offense of participation in methamphetamine manufacturing. As a result,
the court merged the two offenses and only imposed the 11-year sentence on the participation in
methamphetamine manufacturing offense. Nonetheless, as will be discussed below, given the
overlap in evidence that the State used to establish that defendant both possessed
methamphetamine manufacturing materials and participated in the manufacture of the drug, we
find that the evidence was sufficient to establish defendant’s guilt of both offenses.
¶ 27 Due process requires proof beyond a reasonable doubt to convict a criminal defendant.
People v. Ross, 229 Ill. 2d 255, 272 (2008). In reviewing a challenge to the sufficiency of the
evidence, it is not a reviewing court’s role to retry the defendant; rather, the court must view the
evidence in the light most favorable to the prosecution and determine whether any rational trier
of fact could have found each of the essential elements of the crime beyond a reasonable doubt.
People v. Ward, 215 Ill. 2d 317, 322 (2005); People v. Joiner, 2018 IL App (1st) 150343, ¶ 58.
This standard is applicable to all criminal cases regardless of the nature of the evidence at issue.
People v. Bush, 214 Ill. 2d 318, 327 (2005). In a bench trial, the trial court is responsible for
evaluating the credibility of the witnesses, resolving conflicts and inconsistencies in the
evidence, and determining the weight to afford, and the inferences to be drawn, from the
evidence. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). In weighing the evidence, the
trier of fact is not required to disregard reasonable inferences that flow from the evidence or seek
out all possible explanations to support a defendant’s claim of innocence. People v. Maldonado,
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2015 IL App (1st) 131874, ¶ 18. Ultimately, a reviewing court may not substitute its judgment
for that of the trier of fact (People v. Campbell, 146 Ill. 2d 363, 375 (1992)) and will not reverse
a defendant’s conviction unless the evidence is so improbable or unsatisfactory that it creates a
reasonable doubt as to his guilt (People v. Bradford, 2016 IL 118674, ¶ 12).
¶ 28 Section 30 of the Methamphetamine Control and Community Protection Act
(Methamphetamine Act or Act) prohibits an individual from “knowingly engag[ing] in the
possession, procurement, transportation, storage or delivery of any methamphetamine
manufacturing material *** with the intent that it be used to manufacture methamphetamine.”
720 ILCS 646/30(a) (West 2016). Methamphetamine manufacturing material includes “any
methamphetamine precursor, substance containing any methamphetamine precursor,
methamphetamine manufacturing catalyst, substance containing any methamphetamine
manufacturing catalyst, methamphetamine manufacturing reagent, substance containing any
methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, substance
containing any methamphetamine manufacturing solvent, or any chemical, substance, ingredient,
equipment, apparatus, or item that is being used, has been used, or is intended to be used in the
manufacture of methamphetamine.” 720 ILCS 646/10 (West 2016).
¶ 29 Section 15 of the Act, in turn, prohibits an individual from “knowingly participat[ing] in the
manufacture of methamphetamine with the intent that methamphetamine or a substance
containing methamphetamine be produced.” 720 ILCS 646/15(a)(1) (West 2016). The Act
provides that “ ‘participation’ in the manufacture of methamphetamine means to produce,
prepare, compound, convert, process, synthesize, concentrate, purify, separate, extract, or
package any methamphetamine, methamphetamine precursor, methamphetamine manufacturing
catalyst, methamphetamine manufacturing reagent, methamphetamine manufacturing solvent, or
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any substance containing any of the foregoing, or to assist in any of these actions, or to attempt
to take any of these actions, regardless of whether this action or these actions result in the
production of finished methamphetamine.” 720 ILCS 646/10 (West 2016). Accordingly,
“[u]nder the plain language of the Act, one can be guilty of participating in the manufacture of
methamphetamine merely by assisting in the production of methamphetamine. This assistance
could occur in many forms such as (1) supplying the raw materials to manufacture
methamphetamine; (2) providing the knowledge, equipment, or capital to manufacture
methamphetamine; or (3) consenting to the manufacture of methamphetamine on [one’s]
property.” People v. Marzonie, 2018 IL App (4th) 160107, ¶ 43.
¶ 30 In this case, the testimony at trial established that law enforcement officials recovered items
used to produce methamphetamine via the “one pot” method in the Johnsons’ backyard.
Specifically, Officer Dahm, Detective Anderson, and Sergeant Chestnut testified that they
discovered batteries, tubing, plastic bottles, coffee filters, funnels, sulfuric acid, and lye at the
scene. Although many of those items were “basic common household materials,” Sergeant
Chestnut, who was qualified to testify as an expert in methamphetamine identification and
manufacturing, explained that the “combination” and “accumulation” of those materials made
the scene a methamphetamine manufacturing lab. In addition to those items, Commander Yaras
detected a “chemical-type smell” consistent with methamphetamine production emanating from
the area in which the aforementioned methamphetamine manufacturing materials were found.
Law enforcement officials also recovered two syringes from the Johnson’s backyard and forensic
scientist Gina Romano tested the residue contained in one of those syringes and confirmed that it
contained methamphetamine. Defendant does not dispute that methamphetamine and
methamphetamine manufacturing materials were recovered from his parent’s backyard; instead,
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his challenge to the sufficiency of the evidence is that the State failed to prove that he
constructively possessed those materials and used them to participate in methamphetamine
manufacturing.
¶ 31 The element of possession requires evidence that the defendant had knowledge of the
presence of the narcotics and had “ ‘immediate and exclusive control’ ” over them. People v.
Scott, 2012 IL App (4th) 100304, ¶ 19 (quoting People v. Morrison, 178 Ill. App. 3d 76, 90
(1988)). Possession can be actual or constructive. Id. Actual possession exists where a
defendant “ ‘exhibits some form of dominion over the unlawful substance, such as trying to
conceal it or throw it away.’ ” Id. Constructive possession, in contrast, occurs when a
“defendant exercises ‘no actual personal present dominion over the narcotics,” but evidences an
“ ‘intent and capability to maintain control’ ” over them. Id. “For example, ‘[w]here narcotics
are found on the premises rather than on a defendant, constructive possession may be inferred
from facts showing that he once had physical control with intent to exercise control in his own
behalf, he has not abandoned the drugs and no other person has obtained possession.’ ” Id.(quoting People v. McLaurin, 331 Ill. App. 3d 498, 502 (2002)). The exclusive dominion and
control necessary to establish constructive possession is not diminished by the mere fact that
others had access to the contraband. People v. Givens, 237 Ill. 2d 311, 338 (2010). Constructive
possession is rarely proven by direct evidence; rather, it is generally “proven entirely by
circumstantial evidence.” Maldonado, 2015 IL App (1st) 131874, ¶ 23. Although a defendant’s
“mere proximity” to contraband is insufficient, standing alone, to establish that he had the
requisite control of the items necessary to support a finding of constructive possession (People v.
Ray, 232 Ill. App. 3d 459, 462 (1992)), “where the other circumstantial evidence is sufficiently
probative, proof of proximity combined with inferred knowledge of the presence of contraband
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will support a finding of guilt on charges of possession” (People v. Brown, 277 Ill. App. 3d 989,
998 (1996)).
¶ 32 In this case, there is no dispute that defendant did not have actual possession of the
methamphetamine or the materials used to manufacture methamphetamine at the time of his
arrest. Officer Dahm testified that when he arrived on the Johnsons’ property, he found
defendant sleeping on a swing located close the house. The methamphetamine and
methamphetamine manufacturing materials, however, were found in the northeast corner of the
backyard, approximately 70 feet away from where defendant was found sleeping. Although
defendant is correct hat his “mere proximity” to those items is insufficient to establish that he
constructively possessed those materials (Ray, 232 Ill. App. 3d at 462), the State’s evidence
against him was not limited to his mere proximity to those items; rather, the totality of the
circumstantial evidence that the State presented at trial established that defendant had the
requisite knowledge and control over those items to support a finding of constructive possession.
¶ 33 Notably, Forrest testified that when he and his wife allowed defendant to stay on their
property, defendant was not permitted in their house; rather, he was afforded access to the
northeast corner of the backyard where a shed and a 7-foot long storage container were located.
Defendant used a blanket to make a “bed” in the container, which was located behind the shed.
Forrest further testified that he agreed to stay away from the area of the yard where the storage
container was located while defendant was staying on the property and confirmed that he
“d[idn’t] go back there” and “stayed away” from that area when he mowed and tended to the rest
of his property. Forrest’s testimony about the living arrangement with his son established that
defendant had control over the northeast corner of the yard, which was the same area of the yard
that law enforcement officials recovered the methamphetamine manufacturing materials at issue.
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See People v. Terrell, 2017 IL App (1st) 142726, ¶ 17 (recognizing that “[c]onstructive
possession exists” where “the defendant has control over the area where the contraband was
found”). As explained, above, the officers testified that the plastic bottles, funnels, batteries,
tubing, and solvents were all recovered behind the shed and in and around the storage container.
They also observed a blanket and clothing in the storage container, which corroborated Forrest’s
account of defendant’s living arrangement. Although defendant is correct that nothing bearing
his name was recovered from the storage container, the fact that items purportedly belonging to
him, including the blanket that Forrest identified as defendant’s bedding, were located in close
proximity to the methamphetamine manufacturing materials provides further support that he had
constructive possession of those items. See, e.g., People v. McCoy, 295 Ill. App. 3d 988, 994-95
(1998) (finding that the State presented sufficient evidence that the defendant was in constructive
possession of narcotics, based in part, on the fact that several of his personal items were located
in the same area of the residence where the narcotics were recovered). Law enforcement
officials also corroborated Forrest’s testimony that he stayed away from the northeast corner of
his yard while defendant was residing there. They noted that the yard was well-tended except for
the northeastern corner where the methamphetamine manufacturing materials were scattered.
Ultimately, reviewing the evidence in the light most favorable to the State (Ward, 215 Ill. 2d at
322), we find that the State presented sufficient evidence to establish that defendant was in
constructive possession of the methamphetamine manufacturing materials at issue.
¶ 34 Moreover, the chemical smell detected on the northeastern corner of the Johnsons’ property,
the presence of residue in plastic bottles, and the fact that a syringe found in the vicinity of the
storage container contained methamphetamine, all provide evidentiary support that the
methamphetamine manufacturing materials that defendant constructively possessed were in fact
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used to manufacture methamphetamine. The evidence was likewise sufficient to establish that
defendant participated in methamphetamine manufacturing. As explained above, pursuant to the
Methamphetamine Act, a defendant may be found guilty of participating in methamphetamine
manufacturing by supplying raw materials, knowledge, and equipment used to produce the drug.
Marzonie, 2018 IL App (4th) 160107, ¶ 43. Given his constructive possession of the
aforementioned methamphetamine manufacturing materials and equipment as well as evidence
that methamphetamine was manufactured in the corner of the yard over which he had control, we
find that the State presented sufficient evidence that defendant participated in methamphetamine
manufacturing. We therefore reject defendant’s challenge to the sufficiency of the evidence.
¶ 35 B. Jury Waiver
¶ 36 Defendant next argues that he “did not understandingly waive his constitutional right to a
jury trial where the record indicates that the court only made a perfunctory inquiry into [his]
signed jury waiver and failed to admonish him about his right to a jury trial on the felony charges
against him.”
¶ 37 The State responds that defendant’s claim lacks merit where the record shows that he “was
represented by counsel, spoke with counsel about his decision to waive his right to a jury trial,
executed a written jury waiver, and told the court that he had no questions about his right to a
jury trial.”
¶ 38 As a threshold matter, defendant acknowledges that he failed to raise this issue in the circuit
court and thus failed to properly preserve this claim for appellate review. See People v. Enoch,
122 Ill. 2d 176, 186 (1988) (recognizing that to properly preserve an issue for appeal, a
defendant must object to the purported error at trial and specify the error in a posttrial motion
and that his failure to satisfy both requirements results in forfeiture of appellate review of his
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claim). In an effort to avoid forfeiture, however, defendant invokes the plain error doctrine,
which provides a limited exception to the forfeiture rule and allows for review of forfeited issues
on appeal if the evidence is closely balanced or the error is of such a serious magnitude that it
affected the integrity of the judicial process and deprived the defendant of his right to a fair trial.
Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967); People v. Belknap, 2014 IL 117094, ¶ 48; People v.
Sargent, 239 Ill. 2d 166, 189 (2010); People v. Piatkowski, 225 Ill. 2d 551, 564-65 (2007). The
first step in any plain error analysis is to determine whether any error actually occurred.
Piatkowski, 225 Ill. 2d at 565; People v. Rinehart, 2012 IL 111719, ¶ 15. If an error is
discovered, defendant then bears the burden of persuasion to show that the error prejudiced him.
Sargent, 239 Ill. 2d at 189-90. Keeping this standard in mind, we turn now to evaluate the merit
of defendant’s claim.
¶ 39 A criminal defendant’s right to a jury trial is one that is guaranteed by both the federal and
Illinois State constitutions. U.S. Const. amends., VI, XIV; Ill. Const. 1970, art. I, § 8, § 13. The
right to a jury is also codified in section 115-1 of the Illinois Code of Criminal Procedure of 1963
(Criminal Code) (725 ILCS 5/115-1 (West 2016)). Nonetheless, it is well-settled that a criminal
defendant may waive his right to a jury and elect to proceed by way of a bench trial as long as the
waiver is made knowingly and understandingly in open court. 725 ILCS 5/103-6 (2016) (“Every
person accused of an offense, shall have the right to a trial by a jury unless *** understandingly
waived by the defendant in open court”); People v. Bannister, 232 Ill. 2d 65-66 (2008). Although
a court has a duty to ensure that ensure that a defendant’s jury trial waiver is knowingly and
understandingly made, the court is not required to impart to the defendant a specific set of
admonishments or advise the defendant of the consequences of his waiver. Bannister, 232 Ill. 2d
at 66; People v. Harper, 2017 IL App (4th) 150045, ¶ 31. Ultimately, the validity of a jury waiver
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is not dependent upon any specific formula; rather it is dependent upon the unique facts and
circumstances of each case. Bannister, 232 Ill. 2d at 66; Harper, 2017 IL App (4th) 150045, ¶ 31.
As a general rule, however, courts have consistently held that a jury waiver is valid if there is an
express statement by defense counsel, in the defendant’s presence and without the defendant’s
objection, indicating that his client has been informed of his rights and had decided to forgo his
right to a jury trial. See, e.g., People v. Bracey, 213 Ill. 2d 265, 270 (2004); People v. West, 2017
IL App (1st) 143632, ¶ 10. Ultimately, it is the burden of a defendant challenging validity of his
jury waiver to prove that the waiver made absent the requisite knowledge and understanding.
People v. Parker, 2016 IL App (1st) 141597; People v. Reed, 2016 IL App (1st) 140498, ¶ 7.
¶ 40 In this case, the record reflects that prior to the start of trial, defense counsel apprised the court
that defendant had “signed a written jury waiver just moments ago in the courtroom.” The written
waiver was then submitted to the court. Upon receipt of defendant’s signed written waiver, the
circuit court addressed defendant in open court as follows:
“THE COURT: Okay. Mr. Johnson, I have a document in front of me, and it looks to
be a waiver of your jury trial rights. Is that your signature in the middle of that document?
THE DEFENDANT: Yes, sir.
THE COURT: Okay. And by signing it, you’re formally telling me why you are giving
up your right to a jury trial; is that correct?
THE DEFENDANT: Yes, sir.
THE COURT: Have you talked to your lawyer, Mr. Siegel, about that?
THE DEFENDANT: Yes, sir.
THE COURT: Do you have any questions about it?
THE DEFENDANT: No, sir.
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THE COURT: Okay. Jury trial waiver accepted.”
¶ 41 Our review of the record rebuts defendant’s argument that his jury waiver was not made
knowingly and understandingly. As explained above, defendant executed a signed document
waiving his right to a jury trial. Although not dispositive, courts have recognized that the existence
of a “ ‘signed jury waiver *** lessens the probability that the waiver was not made knowingly.’ ”
People v. Rincon, 387 Ill. App. 3d 708, 720 (2008) (quoting People v. Steiger, 208 Ill. App. 3d
208 Ill. App. 3d 979, 982 (1991)). Moreover, in response to questioning by the court, defendant
expressly acknowledged that he discussed the jury waiver with his attorney and denied that he had
any questions about the waiver.
¶ 42 Although defendant acknowledges these facts, he argues that his waiver was not made with
the requisite knowledge and understanding due to the court’s failure to specifically admonish him
about the nature of jury trials and the significance of foregoing the right to such a trial. For
example, he notes that the court did not specifically advise him of the difference between a bench
trial and a jury trial, did not apprise him of the makeup of a jury or the manner in which its members
would be chosen, and did not inform him that a jury would have to reach a unanimous decision to
convict him of the offenses with which he was charged. We acknowledge no such admonishments
were provided; however, defendant’s argument that the lack of such admonishments rendered his
waiver invalid fails to accord with established legal precedent that recognizes that a court is not
required to impart to the defendant a specific set of admonishments or advise the defendant of the
consequences of his waiver for a jury waiver to be valid. Bannister, 232 Ill. 2d at 66; Harper,
2017 IL App (4th) 150045, ¶ 31. Indeed, although courts have recognized that claims of error with
respect to jury waivers could be avoided by providing such admonishments in open court, they
have routinely recognized that the lack of such admonishments does not render a defendant’s jury
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waiver unknowing and involuntary. See, e.g., People v. West, 2017 IL App (1st) 143632, ¶¶ 15-
16 (observing that admonishments delivered in open court could eliminate claims of error
regarding the validity of jury waivers, but rejecting the defendant’s claim that the trial court’s
failure to provide such admonishments rendered his jury waiver invalid because no specific
admonishments are required). Similarly, the mere fact that the court did not inquire whether
defendant’s jury waiver stemmed from any promise or threat or explain that the waiver applied to
each one of the charges against him is insufficient to undermine the validity of that waiver. See,
e.g., Id. ¶ 12 (finding that the trial court’s lack of inquiry as to whether the defendant’s jury waiver
resulted from any threat or promise did not invalidate the waiver); Parker, 2016 IL App (1st)
141597, ¶ 51 (rejecting the defendant’s suggestion that his waiver was invalid and made absent
knowledge and understanding that it applied to all of the charges against him where there was “no
indication in the record that the discussion regarding his jury waiver related to only a portion of
the case against him”). Ultimately, given that defendant submitted a written jury waiver,
acknowledged discussing the matter with his attorney, and did not express any doubts or ask any
questions when afforded the opportunity to do so, we conclude that defendant’s jury waiver was
made knowingly, understandingly, and voluntarily.
¶ 43 In so holding, we find defendant’s reliance on People v. Sebag, 110 Ill. App. 3d 821 (1982)
unavailing. In that case, a pro se defendant waived his right to a jury trial following a brief
colloquy with the trial court wherein the court informed him that he was entitled to a trial by
judge or jury and the defendant responded he wanted a trial before a “judge.” Id. at 828-29. The
court then informed the defendant that he could not reinstate his right to a jury trial after waiving
that right and the defendant responded that he understood. Id. On appeal, the Second District
found that this brief exchange was insufficient to establish that the defendant knowingly waived
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his right to a jury trial, reasoning that he “was without benefit of counsel, and it does not appear
that he was advised of the meaning of a trial by jury nor does it appear that he was familiar with
criminal proceedings.” Id. at 829. Here, in contrast, defendant was represented by counsel and
indicated that he had conferred with his attorney prior to executing the written jury waiver.
Moreover, when afforded the opportunity to ask any questions about the waiver and its effect,
defendant declined to do so. Therefore, we do not find that Sebag compels a different result;
rather, we find that defendant knowingly and understandingly waived his right to a jury trial.
Having found no error, there can be no plain error. People v. Hood, 2016 IL 118581, ¶ 18;
Parker, 2016 IL App (1st) 141597, ¶ 53.
¶ 44 Circuit Court’s Ruling
¶ 45 Defendant next argues that he is entitled to a new trial because the trial court’s judgment was
premised on its erroneous reliance on hearsay evidence as well as its misapprehension of the
relevant forensic evidence.
¶ 46 The State, in turn, refutes defendant’s characterization of the evidence that informed the
circuit court’s judgment and argues that the circuit court neither relied on hearsay evidence nor
erroneously recalled forensic evidence.
¶ 47 Defendant again acknowledges that he failed to properly preserve these claims for appellate
review and again invokes the plain error doctrine. We must first determine whether an error
occurred. Piatkowski, 225 Ill. 2d at 565.
¶ 48 Hearsay is an out-of-court statement offered to prove the truth of the matter asserted and is
generally inadmissible unless it falls within a specifically recognized exception. Ill. R. Evid.
801(c) (eff. Oct. 15, 2015); Caffey, 205 Ill. 2d at 88; People v. Lawler, 142 Ill. 2d 548, 557
(1991); People v. Wright, 2013 IL App (1st) 103232, ¶ 73. Testimony concerning an out-of-
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court statement that is utilized for a purpose other than to prove the truth of the matter asserted
does not constitute hearsay. People v. Sims, 143 Ill. 2d 154, 173-74 (1991). The general
prohibition of hearsay evidence exists because there is no opportunity to cross-examine the
declarant and therefore the admission of such evidence violates a defendant’s constitutionally
protected right to confrontation. U. S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8;
People v. Peoples, 377 Ill. App. 3d 978, 983 (2007); People v. Jura, 352 Ill. App. 3d 1090, 1085
(2004). Hearsay evidence is not considered competent substantive evidence and the trial court
errs if it considers it as such. People v. Simpson, 2015 IL 116512, ¶ 27.
¶ 49 In this case, defendant’s father testified at trial about the circumstances that led to defendant’s
arrest. Specifically, he testified that he and his wife spoke to two Morton Grove police officers
after they became concerned about defendant’s behavior and his appearance. During that
conversation, Forrest relayed that they had permitted defendant to stay in their backyard even
though they had obtained an order of protection against him. Forrest, however, told the officers
that he thought defendant was “doing meth” and that he “couldn’t take” watching defendant
“trying to kill himself in front of [him]” any longer. In finding defendant guilty, the circuit court
recounted the salient details leading to his arrest and law enforcement’s discovery of
methamphetamine paraphernalia and manufacturing materials. In doing so, the court observed
that several Morton Grove police officers responded to the Johnsons’ backyard after Forrest told
them that he “had concerns over his son using meth, and he could no longer watch his son, in his
words, kill himself in the backyard.” The court then remarked, “the word meth comes long
before the police get there. The methamphetamine part of this equation is in this case long
before *** the police arrive at the Johnson residence.”
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¶ 50 The State suggests that Forrest’s testimony did not involve an out-of-court statement; rather,
he simply explained his observations and his motivation for having his son arrested. Although it
is true that a witness’s testimony about his personal observations does not constitute an out-of-
court statement or inadmissible hearsay (see Village Discount Outlet v. Dept. of Employment
Security, 384 Ill. App. 3d 522, 525 (2008) (citing People v. Tharpe-Williams, 286 Ill. App. 3d
605, 609 (1997)), there is no dispute that Forrest discussed his observations and his belief that
defendant was “using meth” when detailing the out-of-court conversation he had with Morton
Grove police officers that led to his son’s arrest.
¶ 51 Although improper, evidence of defendant’s use and possession of methamphetamine and
methamphetamine manufacturing materials was not limited to Forrest’s out-of-court statement to
law enforcement officials. As set forth above, despite defendant’s suggestion that the evidence
against him was “closely balanced,” there was an abundance of evidence that defendant
constructively possessed methamphetamine manufacturing materials and participated in
methamphetamine manufacturing. Importantly, methamphetamine and methamphetamine
manufacturing materials were recovered from a specific area of the Johnsons’ backyard, i.e., the
northeast corner of the yard where a shed and storage container were located. At trial, Forrest
explained that when he and his wife initially permitted defendant on their property, he was
precluded from entering the residence; rather, he was permitted access to the 7-foot-long storage
container located behind the shed. Defendant created a “bed” in the container with a blanket.
Forrest, in turn, agreed that he would not access that area of that yard while defendant resided
there and testified that he honored that agreement and “stayed away” from that portion of his
yard during defendant’s stay. Forrest’s account of these living arrangements was corroborated
by the observations made by law enforcement officials at the scene. Those officials observed a
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blanket and men’s clothing in the storage container and found that the yard was in good
condition except for the northeast corner of the property where methamphetamine manufacturing
materials were scattered behind the shed. Although we acknowledge that the State did not
present any DNA or fingerprint evidence connecting defendant to the methamphetamine
manufacturing materials, we do not find that the evidence against him was closely balanced
given the multitude of circumstantial evidence connecting him to the materials and their use in
methamphetamine manufacturing. See, e.g., People v. Belknap, 2014 IL 117094, ¶ 56 (rejecting
the defendant’s claim that the evidence against him was closely balanced where strong
circumstantial evidence “pointed to [him] as the perpetrator” and excluded any reasonable
possibility that anyone else was guilty of the crime). Therefore, we find that the plain error
doctrine does not apply. Moreover, given defendant’s inability to show that the error prejudiced
him, his alternative claim that his attorney was ineffective for failing to object to the hearsay
evidence and properly preserve this claim also necessarily fails. See People v. White, 2011 IL
109689, ¶ 134.
¶ 52 Next, defendant argues that the circuit court “misapprehended” and “inaccurately recalled”
relevant forensic evidence.
¶ 53 As set forth above, in a bench trial, the circuit court is responsible for evaluating the
evidence. Siguenza-Brito, 235 Ill. 2d at 228. In doing so, the court is permitted to draw
reasonable inferences from the evidence and determine the weight to afford that evidence. Id. It
is presumed that the trial court accurately recalled and properly considered competent evidence
and this presumption will only be rebutted by affirmative evidence to the contrary. People v.
Moon, 2019 IL App (1st) 161573, ¶ 28; People v. Williams, 2013 IL App (1st) 111116, ¶ 102.
Where it is evident that the circuit court failed to properly recall and consider evidence critical to
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the defense, a defendant’s constitutional right to due process is violated. Id. ¶ 75 (citing People
v. Mitchell, 152 Ill. 2d 274, 323 (1992)).
¶ 54 Defendant’s claim that the circuit court improperly recalled forensic evidence is based on the
court’s statement that the “syringes” recovered by law enforcement officers tested “positive for
meth.” He notes that forensic scientist Gina Romano testified that she only tested the residue
contained in one of the two syringes recovered from the Johnsons’ property, and argues that the
circuit court’s use of the plural when describing the forensic evidence reveals a failure to
properly recall the relevant evidence. We disagree.
¶ 55 In finding defendant guilty of possession of methamphetamine manufacturing materials and
participating in methamphetamine manufacturing, the court made multiple references to the
syringes. When discussing Romano’s testimony, the court stated as follows: “Jeanne Romano
from the Northeast Crime Lab was qualified as an expert and testified that the substance in the
syringe w[as] meth. And it was established on cross-examination that it was just residue, it’s a
small amount.” (Emphasis added.) Later on, when recounting the items found in the northeast
corner of the Johnsons’ backyard, the court concluded that the collection of those items including
tubing, plastic containers, solvents, coffee filters, funnels and “syringes positive for meth” were
evidence of a methamphetamine lab. A fair reading of the record thus shows that the court
accurately recalled Romano’s forensic testimony and was aware that she only tested one of the
two syringes recovered from defendant’s methamphetamine lab and that her testing revealed the
presence of methamphetamine in that syringe. The court’s subsequent use of the plural
“syringes” later in its ruling can either be construed as a reasonable inference that the second
untested syringe also likely contained methamphetamine or a mere slip of the tongue. Either
way, we do not find that the record affirmatively shows that the court completely failed to recall
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evidence relevant to the defense and violated defendant’s due process rights. See, e.g., People v.
Schuit, 2016 IL App (1st) 150312, ¶ 107 (rejecting the defendant’s claim that his due process
rights were violated when the circuit court made an inaccurate statement when engaging in an
“extensive discussion of all of the evidence,” where the statement did not show that the court
fundamentally failed to comprehend the evidence; rather it was more aptly categorized as a
“ ‘slip of the tongue.’ ”). Indeed, to the extent that the court’s discussion of the syringes can be
categorized as a misstatement, there is no evidence that the misstatement had any impact on the
court’s decision-making process given that evidence of defendant’s guilt was not limited to the
syringes; rather, as explained previously, there was a multitude of evidence that defendant
possessed methamphetamine manufacturing materials and participated in methamphetamine
manufacturing. Accordingly, we find that defendant’s claim that the circuit court violated his
due process rights lacks merit.
¶ 56 Excessive Sentence
¶ 57 Lastly, defendant challenges his sentence. He argues that his 11-year sentence is excessive
because his criminal conduct stemmed from his “long-standing drug and alcohol addiction,”
which he was “successfully fighting with treatment prior to trial.” Moreover, he argues the trial
court failed to properly consider other relevant mitigating factors such as his education and
employment history, his familial support, as well as the fact that his criminal history “consist[ed]
primarily of non-violent drug offenses [and] crimes committed to support a drug addiction.”
¶ 58 The State responds that that the circuit court did not abuse its discretion in sentencing
defendant to 11-years’ imprisonment because the sentence “was [e]minently reasonable given
the toxic danger his conduct posed to the community, first responders, and his own parents” and
was “amply supported by his extensive criminal history.”
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¶ 59 The Illinois Constitution requires a trial court to impose a sentence that achieves a balance
between the seriousness of the offense and the defendant’s rehabilitative potential. Ill. Const.
1970, art. I, §11; People v. Lee, 379 Ill. App. 3d 533, 539 (2008). To find the proper balance, the
trial court must consider a number of aggravating and mitigating factors, including: “the nature
and circumstances of the crime, the defendant’s conduct in the commission of the crime, and the
defendant’s personal history, including his age, demeanor, habits, mentality, credibility, criminal
history, general moral character, social environment and education.” People v. Maldonado, 240
Ill. App. 3d 470, 485-86 (1992). The circuit court is not required to explicitly analyze each relevant
factor or articulate the basis for the sentence imposed and when mitigating evidence is presented
before the trial court, it is presumed that the court considered that evidence in imposing the
defendant’s sentence. People v. Averett, 381 Ill. App. 3d 1001, 1021 (2008); People v. Ramos,
353 Ill. App. 3d 133, 137 (2004). Because the circuit court is in the best position to weigh the
relevant factors, the sentence that it imposes is entitled to great deference and will not be disturbed
on appeal absent an abuse of discretion. People v. Stacey, 193 Ill. 2d 203, 209 (2000); People v.
Lee, 379 Ill. App. 3d 533, 539 (2008). As such, when reviewing a defendant’s sentence, this court
may not substitute its judgment for the trial court merely because it could or would have weighed
the factors differently. People v. Jones, 376 Ill. App. 3d 372, 394 (2007). Accordingly, when a
sentence falls within the applicable statutory guidelines, it is presumed to be proper and will not
be disturbed absent an affirmative showing that the sentence is at variance with the purpose and
spirit of the law or is manifestly disproportionate to the nature of the offense. People v. Gutierrez,
402 Ill. App. 3d 866, 900 (2010); Ramos, 353 Ill. App. 3d at 137.
¶ 60 In this case, because of defendant’s criminal history, he was subject to a mandatory Class X
sentence of 6 to 30 years’ imprisonment. 730 ILCS 5/5-4.5-95(b) (West 2016); 730 ILCS 5/5-4.5-
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25(a) (West 2016). There is thus no dispute that the 11-year sentence that the circuit court elected
to impose upon him falls within the lower end of the applicable statutory sentencing range and is
afforded a presumption of propriety. Gutierrez, 402 Ill. App. 3d at 900; Ramos, 353 Ill. App. 3d
at 137. Although defendant suggests that the sentence ignores his rehabilitative potential and is
“particularly inappropriate” given that his criminal conduct “was rooted in his long-standing drug
and alcohol problem,” the record reveals that the circuit court heard and considered relevant
mitigating evidence. In particular, the court noted that defendant had a loving family and that he
had an “addiction, *** a sickness.” The court also acknowledged that defendant was obtaining
addiction treatment and that it had reviewed his treatment records. Although the court
acknowledged the existence of mitigating factors, it was troubled that defendant was a repeat
offender who had reoffended after serving two prior 6-year sentences and that his most recent
conduct put the lives of his family members and the surrounding community at risk. As a result,
the court concluded that it was “not fair to the rest of the people in the community to sentence
[him] to the minimum;” however, it also indicated that it did not believe that defendant was “20 to
30 guy either.” Accordingly, the court elected to sentence him to 11-years’ imprisonment.
¶ 61 Given that the record reflects that the court carefully considered the circumstances of the crime
and the applicable aggravating and mitigating factors prior to imposing defendant’s sentence, we
find that defendant has failed to rebut the presumption of propriety afforded to his sentence and
has failed to establish that the circuit court abused its discretion and imposed an excessive sentence.
Therefore, we affirm defendant’s 11-year sentence.
¶ 62 CONCLUSION
¶ 63 The judgment of the circuit court is affirmed.
¶ 64 Affirmed.
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