People v. Rouser , 199 Ill. App. 3d 1062 ( 1990 )

JUSTICE STOUDER

delivered the opinion of the court:

Following a bench trial, the court convicted the defendant, Kevin Rouser, of unlawful possession of a controlled substance with the intent to deliver (Ill. Rev. Stat. 1987, ch. 56½, par. 1401(c)). The court thereafter sentenced him to six years’ imprisonment. The defendant appeals.

The record shows that on August 8, 1988, undercover police officer Robert Glynn went to a residence at 1032 Charlesworth in Joliet with another man. Glynn gave the man $250 in marked money and the man went into the residence to purchase cocaine. The man subsequently came out with a bag containing a substance appearing to be cocaine.

Later that day, police officers returned to the residence with a search warrant. They knocked on the door, identified themselves, and announced their intentions. After waiting one minute, they entered the house and observed two men in a bathroom, with a third exiting the bathroom. When the third man saw the officers, he ran back into the bathroom and attempted to close the door. As the officers struggled to open the door, they heard the toilet flush. After forcing their way in, they saw the men shuffling around. They thereafter recovered .3 grams of cocaine from an open clothes hamper in the bathroom, along with another packet, the contents of which were not analyzed. They also found a pipe used for smoking marijuana or cocaine. In the kitchen, they found a bottle of grain alcohol, two steel rods, and a test tube, all of which were items used in free-basing cocaine. Items used in cutting and packaging cocaine for sale were also found in the kitchen. Small amounts of cannabis were found in the kitchen and a bedroom.

Although numerous documents, including the rental agreement for the residence, were in another party’s name, documents belonging to the defendant were also recovered in the house. Among these was a social security card application on which the defendant had listed 1032 Charlesworth as his mailing address. $850 in cash, including the marked $250 Officer Glynn had used in the earlier purchase, was found in the unemployed defendant’s pocket.

On appeal, the defendant initially argues that the State failed to prove beyond a reasonable doubt that he possessed the cocaine found in the clothes hamper.

To support a conviction for unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the substance and that it was under his immediate and exclusive control. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) The possession may be constructive, and the rule that possession must be exclusive does not mean that possession may not be joint. (People v. Burke (1985), 136 Ill. App. 3d 593, 483 N.E.2d 674.) When narcotics are found in an area under the defendant’s control, that fact gives rise to an inference that the defendant had knowledge and control of the narcotics, absent other facts and circumstances which might leave a reasonable doubt as to the defendant’s guilt. (People v. Wiley (1988), 174 Ill. App. 3d 444, 528 N.E.2d 26.) Knowledge and control of narcotics are questions of fact for determination by the trier of fact, and its decision will not be disturbed unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable, or unsatisfactory, as to create a reasonable doubt of guilt. (People v. Strong (1986), 151 Ill. App. 3d 28, 502 N.E.2d 744.) In making this determination, the reviewing court will examine the evidence in the light most favorable to the prosecution, and the relevant question is whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the charged crime. People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.

In the instant case, the defendant was in the bathroom, only IV2 feet from the open hamper containing the cocaine. The activities in the bathroom were such that a reasonable person could conclude that the defendant and the other men were disposing of illegal drugs. Despite having flushed the toilet, the men in the bathroom were still shuffling about as the police entered. Again, a reasonable person could conclude that their actions were due to their knowledge that they had not disposed of all the illegal drugs. In sum, we find that a rational trier of fact could have concluded that the defendant was proved guilty beyond a reasonable doubt of possessing the cocaine.

The defendant next argues that the State failed to prove beyond a reasonable doubt that he possessed the cocaine with the intent to deliver.

Whether an individual possesses a controlled substance with the intent to deliver is not always subject to direct proof. (People v. LeCour (1988), 172 Ill. App. 3d 878, 527 N.E.2d 125.) A reasonable inference of intent is permitted when the amount of the contraband possessed could not be viewed as designed for personal consumption. (People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538.) Other factors may also support or enhance the inference that narcotics were possessed with the intent to deliver, namely, the possession of a combination of drugs, the manner in which they were kept, the presence of paraphernalia used in the sale of drugs, the discovery of a large amount of cash, and the existence of weapons. (People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428; People v. Friend (1988), 177 Ill. App. 3d 1002, 533 N.E.2d 409.) A reviewing court will not substitute its judgment for that of the trial court unless the inference of the trier of fact is inherently unreasonable. People v. Schaefer (1985), 133 Ill. App. 3d 697, 479 N.E.2d 428.

Here, the trial court’s statements in finding the defendant guilty indicated that it believed the defendant did not have constructive possession of the house, but only of the bathroom. Accordingly, the drugs and drug paraphernalia found in other parts of the house were largely irrelevant in determining whether the defendant was proved guilty beyond a reasonable doubt of possession with intent to deliver. Further, the pipe found in the bathroom would indicate the drugs were for personal consumption rather than for sale. While the defendant possessed the $250 in marked money, the State never presented any evidence that the substance purchased earlier in the day actually was an illegal drug. Additionally, no evidence was presented that the defendant had anything to do with the sale of that substance. In fact, the only thing the State directly proved was that the defendant possessed a large amount of cash and a tiny amount of cocaine. Under these circumstances, we find that the trial court stretched the limited circumstantial evidence beyond a reasonable inference.

Accordingly, pursuant to our authority under Supreme Court Rule 615(b)(3) (107 Ill. 2d R. 615(b)(3)), we reduce the degree of the defendant’s offense to unlawful possession of a controlled substance (Ill. Rev. Stat. 1987, ch. 56½, par. 1402(b)). We remand the cause to the circuit court of Will County for resentencing based on that offense.

Reduced and remanded.

SCOTT, J., concurs.