APPEAL from the Circuit Court of Peoria County; the Hon.
STEPHEN J. COVEY, Judge, presiding.
MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:
Defendant Roger Parks appeals to this court from a judgment of conviction of the offense of unlawful delivery of a controlled substance in violation of section 401(c) of the Controlled Substances Act (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(c)). The judgment was entered in the Circuit Court of Peoria County following a jury trial. Defendant was sentenced to a term of 5 years probation.
On appeal in this Court, defendant contends that (1) the State failed to prove defendant's guilt beyond a reasonable doubt, and (2) defendant was denied a fair trial by reason of certain remarks made during the prosecutor's opening and closing arguments.
The instant case involves an accountability problem. The conviction of defendant was based upon his acts in aiding and abetting Larry McMullen in the commission of the offense of unlawful delivery of a controlled substance. The State prosecuted defendant on the theory that defendant was accountable under the provisions of section 5-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 5-2) by reason of the delivery of a controlled substance by Larry McMullen.
It appears from the record that an Officer Conley and a companion identified only as a "confidential source," were leaving a tavern in Princeville, Illinois, when the confidential source hailed a passing vehicle. That vehicle was driven by McMullen, and defendant and a Gary Rodgers were passengers in the vehicle. After the vehicle stopped, Conley and the confidential source walked over to it. Conley's testimony was that he, Conley, and the confidential source then engaged in a conversation with defendant Parks about the possible delivery of mescaline or LSD. Conley testified that defendant Parks stated that he (Parks) had "a gram" but could get an ounce. Conley also testified that he and the confidential source did not converse with any occupant of the vehicle other than defendant. Defendant and his companion, Rodgers, testified that the confidential source and Conley conversed with McMullen regarding the possible sale of drugs, and that defendant told McMullen that if McMullen was going to sell drugs, defendant did not want anything to do with such sale.
It appears from the record that subsequent to the initial approach by Conley and his companion to the car and a conversation with an occupant of the car, the vehicle proceeded down the road and then stopped. McMullen then left the automobile, while defendant and Rodgers remained in the vehicle and listened to the radio. McMullen then delivered a bag containing LSD to the confidential source, and Conley gave McMullen a 10-dollar bill. After the jury had heard the evidence and arguments of counsel, the jury found defendant guilty of unlawful delivery of a controlled substance, as we have noted.
• 1 As we have indicated, defendant first argues that the State failed to establish his guilt beyond a reasonable doubt. Defendant's conviction resulted from defendant being held accountable for the delivery of the LSD by McMullen. Section 5-2 of the Criminal Code of 1961 provides in part:
"A person is legally accountable for the conduct of another when: * * * (c) Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. * * *."
In People v. Barnes (1924), 311 Ill. 559, 562, 143 N.E. 445, the Illinois Supreme Court observed:
"Aiding, abetting or assisting are affirmative in their character. It is not sufficient that there is a mere negative acquiescence not in any way made known to the principal malefactor. The mere presence of a person is not sufficient to constitute him a principal unless there is something in his conduct showing a design to encourage, incite or in some manner aid, abet or assist the actual perpetrator of the crime."
As we have noted, also, in People v. Marquis (3d Dist. 1974), 24 Ill. App.3d 653, 664, 321 N.E.2d 480, the statute makes it clear that the legislature did not intend to establish criminal responsibility simply through guilt by association. We did note in that case, however, that:
"It is not necessary for the defendant to be present when the sale takes place * * *, nor is it required that he be in possession of marked money * * *."
• 2 In the instant case, the evidence adduced by the State at trial was sufficient, if believed and accepted by the jury, to render defendant accountable for the sale by McMullen of the LSD. Conley's testimony indicated that defendant communicated the availability of the drugs prior to the delivery of the drugs by McMullen. That communication was a positive act which facilitated the eventual delivery and could only have been made with the specific intent to aid in a sale or delivery by McMullen. We recognize that the defendant and his companion Rodgers testified to the contrary but as stated in People v. Tate (1976), 63 Ill.2d 105, 108, 345 N.E.2d 480, 482:
"Although the evidence at trial was contradictory, the jury, after hearing the testimony and weighing the credibility of witnesses, resolved the issues against appellant. While it is true that mere presence or negative acquiescence is not enough to constitute a person a principal, we feel that the circumstances are such as to show a common design assented to by the appellant. The determination of the jury will not be set aside unless the ...