People v. Gladney

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).
2022 IL App (3d) 200066-UOrder filed January 19, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-20-0066
v. ) Circuit No. 19-CF-66
)
DURAN K. GLADNEY, ) Honorable
) Kevin W. Lyons,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court.
Justices Hauptman and Holdridge concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: Defendant’s convictions for unlawful possession with intent to deliver heroin,
unlawful possession with intent to deliver cocaine, and unlawful possession of a weapon
by a felon are reversed where the State failed to prove beyond a reasonable doubt that
defendant knowingly possessed the seized contraband.
¶2 Defendant, Duran K. Gladney, appeals from his convictions for unlawful possession with
intent to deliver heroin, unlawful possession with intent to deliver cocaine, and unlawful
possession of a weapon by a felon. On appeal, he argues that (1) the trial court erred in denying
his motion to suppress because the sworn complaint requesting a search warrant failed to establish
the requisite probable cause to justify issuance of a search warrant, (2) evidence presented in
support of his convictions at trial was insufficient to prove that he had constructive possession of
the seized contraband, and (3) trial counsel committed multiple substantive and procedural errors
that deprived him of a fair trial. We find that the State failed to prove beyond a reasonable doubt
that defendant knowingly possessed the contraband seized from the residence and reverse the trial
court’s judgment.
¶3 I. BACKGROUND
¶4 Defendant was charged by indictment with two counts of unlawful possession with intent
to deliver a controlled substance (heroin and cocaine) (720 ILCS 570/401(a)(1)(A), (a)(2)(A)
(West 2018)), two counts of unlawful possession of a controlled substance (heroin and cocaine)
(id. §§ 402(a)(1)(A), (a)(2)(A)), and one count of unlawful possession of a weapon by a felon (id.
§ 24-1.1(a)), stemming from evidence seized pursuant to a search warrant served at 2121 West
Kellogg Avenue in Peoria.
¶5 Defendant filed a motion to quash the warrant and suppress the evidence, requesting the
suppression of the contraband collected during the search. In the motion, defendant alleged that
the search warrant was “too bare bones” to establish probable cause for its issuance. Specifically,
he alleged that the information presented to the warrant judge failed to establish the confidential
informant’s reliability and a nexus between the criminal offense and the place to be searched.
¶6 Defendant attached a copy of the search warrant and the search warrant complaint to his
motion. Officer David Logan presented the complaint to the warrant judge on January 26, 2019.
In his complaint, Logan requested a search warrant for the premises located at “2121 W Kellogg
Avenue,” a single family residence, and the person of defendant, “a/k/a D Boy,” Logan described
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the residence and defendant and averred that he expected to find heroin, currency, and drug related
paraphernalia in the house. The complaint further stated that Logan had interviewed Jane Doe, a
confidential source, and had attached her affidavit in support of the complaint.
¶7 The complaint provided that Jane Doe first contacted Logan on January 17, 2019, and
informed him that a man, known to her as “D Boy,” was selling heroin at a house located on NE
Perry Street. Logan drove past the house and established that the address was 811 NE Perry Street.
After further research, he discovered that defendant’s address of record was 811 NE Perry Street.
Defendant’s physical description matched the description of D Boy given by Jane Doe. On January
25, 2019, Jane Doe contacted Logan again. This time, she informed him that D Boy was using
2121 West Kellogg Avenue as a “stash house,” and was selling heroin there. Jane Doe stated that
she saw D Boy inside 2121 West Kellogg Avenue with several grams of a tan, rock-like substance,
which she knew to be heroin. Jane Doe also stated that she saw heroin packaged for sale inside the
residence. Logan and another officer drove Jane Doe past the West Kellogg residence. She
confirmed that the house at 2121 West Kellogg Avenue was the residence where she witnessed D
Boy selling heroin, and she identified defendant from a photo lineup as the man she referred to as
“D Boy.” In her attached affidavit, Jane Doe stated that she had witnessed D Boy in possession of
heroin at 2121 West Kellogg within the last 72 hours.
¶8 Following a hearing, the trial court issued a written order denying defendant’s motion to
suppress and set the matter for trial.
¶9 At trial, Logan testified that officers executed the search warrant on the afternoon of
January 26, 2019. During the course of the search, they found several small plastic baggies,
multiple foil packets, and a handgun underneath a dresser in one of the bedrooms. The baggies and
packets contained a light brown substance, believed to be heroin, and a white chunky substance,
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believed to be cocaine. Logan testified that while officers searched the house, the current tenant,
Kimberly Harper, arrived in her vehicle. Officer searched her vehicle as well and found what
appeared to be heroin in her purse.
¶ 10 Officer Matthew Lane testified that no one answered the door when he and other officers
knocked at the residence to execute the search warrant. Officers then “breached” the door. Inside
the residence, they found foil packets containing suspected heroin, multiple plastic baggies
containing a white substance, and a Glock semiautomatic pistol under a bedroom dresser. Officer
Lane testified that the video of the search of the bedroom showed that the baggies and handgun
were revealed after officers removed the bottom drawer from a tall tan dresser just inside the
bedroom door. A blue duffel bag, containing defendant’s social security card, was on the floor
next to the dresser. Officers also observed several articles of men’s clothing, a heroin “user’s kit,”
and a digital scale in the bedroom. As the search continued, officers found a bag of unused plastic
baggies, a box of partially torn aluminum foil, and a scale in the kitchen.
¶ 11 Peoria Police Officer Jacob Beck testified that he reported to the scene and collected all the
items recovered from 2121 West Kellogg. He explained that the bag containing the baggies and
foil packages was found under the tall dresser. All the drawers had to be removed before the bag
of drugs could be revealed. Officer Beck also clarified that defendant’s social security card was
found inside the blue duffel bag.
¶ 12 Officer Nick Mason testified that, while officers searched the residence in question, he
arrested defendant at another location. He found $476 and a key on defendant’s person. Officer
Mason later used the key to successfully unlock the door at 2121 West Kellogg.
¶ 13 Harper testified that she used heroin for about 15 years and was going to treatment for her
addiction. She had known defendant for quite a while because she bought heroin from him. She
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arrived home as the search warrant was being executed, and officers arrested her after finding
heroin in her purse. She was cooperating with investigators in exchange for a deal with the State’s
Attorney’s office in the hopes of regaining custody of her children.
¶ 14 Harper testified that a few weeks before officers searched her house, she ran into defendant
at the store, and they exchanged numbers. Defendant contacted her shortly after that and said he
was having issues with his family. He asked if he could stay at her house “once in a while.” She
said that he could and gave him a key. Harper testified that defendant “didn’t sleep there every
night or anything, just a few times.”
¶ 15 The day before officers executed the search warrant, defendant returned to Harper’s house
following a trip to Kentucky. He brought a blue duffel bag with his clothes in it and put it in
Harper’s bedroom. Harper testified that she had previously offered defendant the use of a dresser
and the bedroom closet. She explained that there were two dressers in her bedroom, a tall tan one
and a black one, and she kept her clothes in both of them. She told defendant that he could use the
tall dresser.
¶ 16 The night before the search warrant was executed defendant showed up at Harper’s house
with several friends. Harper purchased $20 worth of heroin from defendant. He showered and
listened to music with his friends, and then they all left. Defendant did not spend the night at
Harper’s house that evening. He returned the next morning, January 26, 2019, with his aunt. Harper
had a short conversation with defendant in the living room, and then he left. Defendant did not go
in her bedroom.
¶ 17 On cross-examination, Harper testified that she still kept personal clothing items in the tall
dresser that she offered to defendant. When the officers searched the dresser, the drawers contained
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her lingerie, swimsuits, and pajamas. Harper denied ownership of the gun that was found under
the dresser. She also stated that she had never seen defendant with a gun.
¶ 18 Pamela Passolano, a forensic scientist with the Illinois State Police, testified that she tested
the substances found in the foil packages and the small plastic baggies. There were a total of 50
small foil packets inside 5 larger foil packages. The substance in those packages testified positive
for heroin, and the chunky white substance found in the plastic baggies tested positive for cocaine.
Officer John Foster, an officer with the Peoria crime scene unit, testified that he swabbed the
handgun and conducted fingerprint testing on the packages of heroin and cocaine but found no
identifiable prints.
¶ 19 At the conclusion of the witnesses’ testimony, the parties stipulated that defendant had a
prior felony conviction.
¶ 20 The jury found defendant guilty of unlawful possession with intent to deliver heroin,
unlawful possession with intent to deliver cocaine, and unlawful possession of a weapon by a
felon. Following a sentencing hearing, the trial court sentenced defendant to concurrent terms of
imprisonment of 22 years, 8 years, and 8 years, respectively.
¶ 21 II. ANALYSIS
¶ 22 On appeal, defendant raises three contentions of error: (1) the trial court erred in denying
his motion to suppress based on a deficient search warrant; (2) the State failed to present sufficient
evidence to support his convictions; and (3) multiple errors committed by defense counsel denied
him a fair trial. Because we find that his challenge to the sufficiency of the evidence is dispositive,
we address it first.
¶ 23 When faced with a challenge to the sufficiency of the evidence, it is not the function of the
reviewing court to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242 (2006); People
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v. Collins, 106 Ill. 2d 237, 261 (1985). Rather, viewing the evidence in the light most favorable to
the prosecution, a reviewing court is tasked with determining whether any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable doubt.
Sutherland, 223 Ill. 2d at 242. It is the responsibility of the trier of fact to determine the credibility
of the witnesses, to weigh the witnesses’ testimony, to resolve conflicts in the evidence, and to
draw reasonable inferences that flow from the evidence. People v. Williams, 193 Ill. 2d 306, 338
(2000). A defendant’s conviction will be overturned based on insufficient evidence only where the
proof is so improbable or unsatisfactory that a reasonable doubt as to the defendant’s guilt remains.
Id.¶ 24 To sustain a conviction for unlawful possession of a weapon by a felon, the State must
prove beyond a reasonable doubt that the defendant knowingly possessed a firearm and has been
convicted of a prior felony. 720 ILCS 5/24-1.1(a) (West 2018). To sustain a conviction for
unlawful possession of heroin or cocaine, the State must prove beyond a reasonable doubt that the
defendant knowingly and unlawfully possessed 15 grams or more of the controlled substance. Id.§§ 401(a)(1)(A), (a)(2)(A). Both statutes require proof of possession of the contraband in question
to obtain a conviction.
¶ 25 Proof of possession of contraband requires the State to demonstrate that (1) the defendant
had knowledge of the presence of the contraband, and (2) the contraband was in the defendant’s
immediate and exclusive control. People v. Tates, 2016 IL App (1st) 140619, ¶ 19. Possession may
be actual or constructive and is often proved with circumstantial evidence. People v. Love, 404 Ill.
App. 3d 784, 788 (2010).
¶ 26 “Constructive possession exists where there is no actual, personal, present dominion over
the contraband, but defendant had knowledge of the presence of the contraband, and had control
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over the area where the contraband was found.” People v. Hunter, 2013 IL 114100, ¶ 19.
Knowledge may be inferred from the surrounding circumstances, such as the defendant’s actions,
declarations, or other conduct, which indicate that the defendant knew the contraband existed in
the place where it was found. People v. McLaurin, 331 Ill. App. 3d 498, 502 (2002); People v.
Minniweather, 301 Ill. App. 3d 574, 578 (1998). Control is established when the defendant has the
capability and intent to maintain dominion and control over the contraband. People v. Spencer,
2012 IL App (1st) 102094, ¶ 17. Proof that a defendant had control over the premises where the
contraband is found gives rise to an inference of knowledge and possession of the contraband.
People v. Givens, 237 Ill. 2d 311, 335 (2010).
¶ 27 Constructive possession is not diminished by evidence of others’ access to contraband. Id.
at 338. Nevertheless, “[w]here there is no evidence that the defendant controls the premises, proof
of mere presence, even combined with defendant’s knowledge of [contraband], will not support a
finding of constructive possession unless there is other circumstantial evidence of defendant’s
control over the contraband.” Tates, 2016 IL App (1st) 140619, ¶ 20.
¶ 28 Habitation of the location where contraband is found can constitute sufficient evidence of
control to establish constructive possession. People v. Maldonado, 2015 IL App (1st) 131874, ¶
29; Spencer, 2012 IL App (1st) 102094, ¶ 17. Evidence of habitation often takes the form of rent
receipts, utility bills, or mail. People v. Fernandez, 2016 IL App (1st) 141667, ¶ 19. Possessing
keys to a residence may constitute evidence of constructive possession. People v. Chicos, 205 Ill.
App. 3d 928, 935 (1990). However, a conviction cannot be based solely on the possession of keys
to a residence. Fernandez, 2016 IL App (1st) 141667, ¶ 21; People v. Orta, 361 Ill. App. 3d 342,
349 (2005).
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¶ 29 Here, the evidence supporting defendant’s constructive possession of the drugs and the
handgun is minimal. It is undisputed that defendant was not in the residence at the time the
evidence of criminal activity was discovered. Defendant’s absence meant defendant did not have
immediate access to the area within the residence where the controlled substance and firearms
were seized. Moreover, the evidence did not establish that defendant inhabited the location where
the contraband was found. No bills or mail in defendant’s name were found at the residence.
Although defendant possessed a key to the house, a conviction based solely on the possession of
a key cannot stand. See Fernandez, 2016 IL App (1st) 141667, ¶ 21. Under these facts, a reasonable
person would not be able to conclude that defendant had exclusive control over the residence such
that defendant could be found to have knowingly possessed the contents of the residence.
¶ 30 Moreover, the State cannot meet its burden of proof regarding constructive possession by
introducing circumstantial evidence tying defendant to the controlled substances or the firearm.
Cf. Minniweather, 301 Ill. App. 3d at 578 (evidence that defendant hid from police, drugs were
found within feet of where defendant was hiding, and no one else was seen in the area provided
strong circumstantial evidence sufficient to prove constructive possession). The investigation did
not reveal defendant’s fingerprints or DNA on the bags of heroin and cocaine or on the handgun.
There was no direct evidence showing defendant touched or actually possessed any of the items.
And there was little, if any, circumstantial evidence to support a reasonable inference that
defendant intended to exercise control over the contraband. Defendant was not found in close
proximity to the contraband (officers arrested him blocks away during execution of the search
warrant), and he was not the last person seen in the area where the contraband was located.
¶ 31 In this case, defendant was one of multiple individuals inside Harper’s residence in the
days leading up to the execution of the search warrant. Harper’s uncontroverted testimony
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established that defendant was not living at 2121 West Kellogg and did not have exclusive control
over the dresser where officers discovered the contraband. Further, there were no identifiable prints
recovered from the packaged heroin, the baggies of cocaine, or the handgun. Absent defendant’s
presence at 2121 West Kellogg on the morning of January 26, 2019, there is no evidence linking
defendant to the controlled substances or the firearm. Such evidence is insufficient to support
defendant’s convictions for possession.
¶ 32 Because we reverse defendant’s convictions, we need not address the remaining issues
raised on appeal.
¶ 33 III. CONCLUSION
¶ 34 Defendant’s convictions and the judgment of the circuit court of Peoria County are
reversed.
¶ 35 Reversed.
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