APPEAL from the Circuit Court of Lake County; the Hon. FRED H.
GEIGER, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
After a joint jury trial the co-indicted defendants, David P. Margraf and Georgiann Kline, were convicted of possession of cannabis in excess of 500 grams with intent to deliver, possession of cannabis in excess of 500 grams, possession of LSD less than 30 grams and possession of cocaine less than 30 grams. The court entered judgment on the verdict on all counts but sentenced the defendants only on the charge of possession of cannabis in excess of 500 grams with intent to deliver. The defendant Margraf was sentenced to 5 to 15 years' imprisonment and the defendant Kline was sentenced to 4 to 12 years' imprisonment. The separate appeals of the defendants have been consolidated for opinion.
• 1 Defendants first contend that their conviction and sentencing under the Cannabis Control Act and under the Controlled Substances Act (Ill. Rev. Stat. 1973, ch. 56 1/2, pars. 1401, 1404) violated constitutional guarantees of due process and equal protection. These contentions have now been ruled upon adversely to the defendants in People v. Mayberry, 63 Ill.2d 1 (1976).
The defendants next contend that they were not proven guilty of the offense of possession of cannabis with intent to deliver beyond a reasonable doubt. They argue that the evidence shows only that the defendant Margraf possessed more than 500 grams of cannabis and that there was no sufficient proof of the necessary intent to deliver. Defendant Kline additionally argues that her mere possession of the cannabis was not proved beyond a reasonable doubt.
It was proved that defendants lived together from time to time in a mobile home. Pursuant to a search warrant 6443.33 grams of marijuana were found in the home. In addition the police found 100 packets of reefer rollers containing 32 cigarette papers per packet. $5650 in currency was found hidden about the mobile home. Small amounts of cocaine (4.55 grams) and of LSD (13.74 grams) were also found, together with various paraphernalia, including scales, pipes, pans and tweezers.
There was testimony for the State that after the police arrived, the defendant Kline was seen standing by the toilet in the bathroom, looking down at it. There was a green leafy substance floating on the top of the toilet in the bowl which was skimmed and later determined to be marijuana. In the bottom of the toilet bowl the officer found four plastic bags, three containing pink pills and one containing a white powder. There was testimony identifying the items as contraband under either the Cannabis Control Act or the Controlled Substances Act.
Defendant Margraf did not testify nor did he call any witnesses in his own behalf.
Defendant Kline testified that many of the clothes found in the trailer were hers; that she had been staying with the defendant on weekends and on several evenings during the week during the month of January, 1974, and prior to that time had stayed with him for approximately 2 weeks in October, 3 weeks in November and 3 weeks in December of 1973. She said that when she saw the police cars that she ran out and warned the defendant and another person who was in the trailer. The latter ran to the bathroom. She then grabbed a bag containing green plant material from the table and ran back towards the bathroom after him. When she arrived there she looked in the toilet and saw that there were a few flakes of marijuana floating in it. She testified that other than the marijuana in the bathroom toilet she had never seen any of the other contraband substances introduced during the trial. She also testified that she had never used LSD or cocaine although she had smoked marijuana in wrapping paper similar to the ones found in the trailer on numerous occasions in the trailer. She also testified that Margraf had never given, sold, provided, furnished or made available to her any marijuana or any other drugs. She said that the money found in the trailer was that which the defendant saved through the years.
Defendant Kline also called a witness who testified that the scales found in the trailer were antique, had parts missing and were not suitable for accurate weight measurement.
• 2 There can be no question on this record that the proof showed beyond a reasonable doubt that the defendant Margraf possessed marijuana and controlled substances in contravention of the statutes. We also conclude that the proof establishes beyond a reasonable doubt that defendant Georgiann Kline also possessed the contraband substances found in the home.
The prosecution has the burden of showing that the substances were in the immediate and exclusive control of the accused and that she had knowledge of such possession but actual physical possession may be inferred from the fact that constructive possession existed at the place where the items were found (see People v. Scott, 110 Ill. App.2d 368, 374-75 (1969)); and such possession may be joint (see People v. Embry, 20 Ill.2d 331, 334-35 (1960); see also People v. Galloway, 28 Ill.2d 355, 358 (1963), and People v. Bell, 53 Ill.2d 122, 126-27 (1972)). The questions of possession and knowledge are ones of fact to be determined by the jury. Its findings will not be disturbed on review 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. Galloway, at 358.
• 3 Applying these principles, we must agree with the State that the facts establish beyond a reasonable doubt that Margraf was in constructive possession of all of the contraband substances found in the mobile home. It is equally clear that Georgiann Kline was also in constructive possession of the substances. In addition to her testimony as to her occasional living in the home and the presence of her clothes in the trailer, the manager of the trailer park testified that he had seen her five or six times, spoken to her on the phone several times, had seen her once at the trailer, had collected rent from her on one occasion, and had conversations involving a television set in the trailer. There was testimony that when one of the officers first saw the defendant Margraf he was told by him that Georgiann Kline was Margraf's wife. In addition, she was seen flushing marijuana down the toilet when the officer arrived. Under the facts the evidence was clear that the defendant Kline either intentionally possessed the contraband substances or possessed them in furtherance of the common design with the defendant Margraf and another person who was in the trailer. See People v. Dickens, 19 Ill. App.3d 419 (1974). See also People v. Nelson, 109 Ill. App.2d 396, 401 (1969).
The question whether either or both defendants were proved guilty beyond a reasonable doubt of possession of more than 500 grams of any substance containing cannabis with intent to deliver (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 705) is the more difficult issue. Defendants argue that the elements which the State proved, i.e., the quantity of the marijuana, the number of packets of reefer rollers and the large amount of currency were not sufficient to circumstantially prove beyond a reasonable doubt that defendants had intended to deliver marijuana. They reason that if the legislature had meant to make possession of more than a certain amount of cannabis prima facie evidence of an intent to deliver, the statute would have stated the presumption. *fn1
They also argue, distinguishing People v. Galloway, 28 Ill.2d 355 (1963), that no inference may be drawn from the amount of currency found in the house in view of the explanation of the defendant Kline and the lack of rebuttal by the State. As to the large amount of cigarette papers, they reason that an individual who sells marijuana which by its nature is a secretive transaction would not sell transfer papers which were easily available in any tobacco store. And finally they argue that the mere quantity of the marijuana does not make it a virtual certainty that the defendants were selling the substance. It notes that the possession of more than 500 grams of marijuana is a Class 3 felony and since the possession with intent to deliver is a Class 2 felony the legislature ...