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People v. Mourning

APRIL 2, 1975.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFFS-APPELLEES,

v.

BRUCE MOURNING, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Madison County; the Hon. JOHN GITCHOFF, Judge, presiding.

MR. JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

The defendant, Bruce Mourning, was indicted for the offense of unlawful delivery of a controlled substance. After a bench trial was held the circuit court of Madison County found the defendant guilty. The court denied the defendant's application for probation and imposed a sentence of not less than 2 years and not more than 6 years in the penitentiary. This appeal followed.

The defendant contends in this appeal that: (1) the trial court erred in denying his motion for a continuance; (2) he was not proven guilty beyond a reasonable doubt; and (3) the trial court erred in admitting State's Exhibits Nos. One and Two into evidence. We shall first discuss defendant's contention that he was not proven guilty beyond a reasonable doubt.

• 1, 2 The defendant's argument in support of this contention is based upon the fact that all of the prosecution's evidence was circumstantial. Our supreme court discussed the quantum of circumstantial evidence necessary to support a conviction in People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436. Therein the court stated:

"[A] conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill.2d 328, 161 N.E.2d 309,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Magnafichi, 9 Ill.2d 169, 137 N.E.2d 256; People v. Grizzel, 382 Ill. 11, 46 N.E.2d 78.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused's guilt." (30 Ill.2d 359, 367, 197 N.E.2d 436, 441.)

The foregoing was quoted and relied upon in People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770. See also People v. Holt, 7 Ill. App.3d 646, 288 N.E.2d 245; People v. Lenker, 6 Ill. App.3d 335, 285 N.E.2d 807.

• 3 Although a conviction based solely upon circumstantial evidence cannot stand if the proof supports any reasonable hypothesis of the defendant's innocence, the trier of fact is not required to search for a series of possible explanations compatible with innocence and elevate them to the status of a reasonable doubt. People v. Huff, 29 Ill.2d 315, 194 N.E.2d 230; People v. Helm, 10 Ill. App.3d 643, 295 N.E.2d 78.

In the instant case the defendant contends that the State failed to prove two propositions beyond a reasonable doubt: first, that a quantity of heroin was delivered to agent Lackey at the time and place alleged; and secondly, that the heroin was delivered by the defendant and no one else. In other words, the defendant alleges that the evidence presented in the trial court supports two reasonable theories compatible with his innocence. One theory is that agent Lackey may have possessed the heroin before he entered the defendant's apartment. The defendant's other theory is that some person other than the defendant may have transferred the heroin to Lackey.

• 4 There is, however, substantial circumstantial evidence in the record from which it could be inferred that agent Lackey did not possess the heroin before he entered the defendant's apartment. The testimony of agent Kocis, Tim Moulton, and Kathy Moulton all indicate that the heroin possessed by agent Lackey after he left the defendant's apartment was not in his, Lackey's, possession before he entered the apartment. On the other hand, there is no evidence supporting the defendant's theory that agent Lackey possessed the heroin before he entered the apartment. We, therefore, conclude that the theory that agent Lackey was in possession of the heroin before he entered the defendant's apartment is not a reasonable hypothesis of innocence.

• 5 There is also sufficient circumstantial evidence to support a finding that agent Lackey obtained the heroin from the defendant and not from some other person. The testimony of agent Kocis, Tim Moulton, and Kathy Moulton refutes the theory that there may have been some unknown party in the apartment who transferred the heroin to agent Lackey. Nor does the record reveal any evidence to support the theory that either Tim or Kathy Moulton sold the heroin to agent Lackey. The defendant introduced no evidence to support such a theory. Hence, we conclude that the theory that some person other than the defendant transferred the heroin to agent Lackey is not a reasonable hypothesis of innocence consistent with the evidence introduced in the trial court.

• 6 Since the proof supports neither of the defendant's theories of his innocence, we find that the trial court did not err in overruling the defendant's motion for a directed verdict. The circumstantial evidence present in the instant case was of a sufficiently conclusive nature and tendency for the trial court to conclude that the defendant was guilty beyond a reasonable doubt.

The defendant also contends that the trial court erred in admitting State's Exhibits Nos. One and Two into evidence. These exhibits were the two packs of heroin allegedly purchased by agent Lackey from the defendant. The defendant objected to the admission into evidence of these exhibits on the ground that the State failed to show a connection between the defendant and these State's exhibits. The defendant did not object on the ground that the State failed to demonstrate a proper chain of custody of the exhibits.

• 7 We find no error in the trial court's overruling of the defendant's objection to the admission into evidence of State's Exhibits Nos. One and Two. There is testimony that the defendant possessed two tinfoil packs of heroin when he entered his apartment with agent Lackey. As previously recounted, there is sufficient circumstantial evidence to prove that agent Lackey and the defendant were alone in the apartment and that agent Lackey purchased the tinfoil packs of heroin from the defendant. Thus, the State succeeded in establishing a connection between the defendant and State's Exhibits Nos. One and Two.

The defendant's remaining contention is that the trial court erred in denying his motion for a continuance. In order to review this contention it becomes necessary to review the events ...


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