APPEAL from the Circuit Court of De Kalb County; the Hon.
WILSON D. BURNELL, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The defendant was found guilty of unlawful delivery of cannabis (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 705(e)), and sentenced to 3 years' probation, with the first 6 months to be spent in the county jail; the defendant was also fined $3000, ordered to make restitution of $550, and required, as a condition of his probation, to obtain or look for full time employment. He appeals contending that (1) he was not proven guilty beyond a reasonable doubt; (2) that the trial court erred in admitting certain hearsay evidence; (3) the trial court erred in admitting evidence of an alleged prior delivery of cannabis, and (4) that his sentence is unconstitutional and an abuse of the trial court's discretion.
The evidence may be summarized as follows: On October 30, 1974, Illinois Bureau of Investigation agents, DeFranco and Andreen, met Bruce Evans, a paid informant, in a university parking lot in DeKalb. Evans and DeFranco then left in DeFranco's car, and proceeded to Bunky's Hot Dog Stand. When they arrived, Agent Andreen was already inside. Evans made several phone calls and DeFranco and Evans went outside.
As DeFranco and Evans sat at the picnic table, Evans told DeFranco, "here he comes," and DeFranco observed James Pionke approaching them. DeFranco testified, over a defense objection, that after introductions were made, Pionke told DeFranco and Evans that, "[m]y man's got the stuff in his car over in the next lot," and asked "[d]o you have the money?" DeFranco responded that he had the money and the three walked to an adjacent parking lot, where DeFranco observed the defendant standing in front of a 1966 Chevrolet. DeFranco took down the license number of the Chevrolet, which he stated in his testimony belonged to the defendant.
Evans introduced DeFranco to the defendant and told the defendant that DeFranco "was here to buy the grass." DeFranco asked, "how much?"; the defendant replied, "$550," and Pionke said that he would get "the stuff" and put it in Evans' car. DeFranco stated that he "would like to see the bag" before he purchased its contents, and Pionke responded "I have it. I will leave it in [Evans'] car. Just pay Jaffe [the defendant]." Pionke took a bag out of the defendant's Chevrolet and placed it in Evans' vehicle. DeFranco counted $550 in bills as he gave them to the defendant, counting "very fast." The defendant shook his head, "like he was confused," and asked "[i]s it all there?" DeFranco slowly recounted the bills. After the defendant had received the entire $550, he put the money in his pocket. While Pionke was still placing the bag in Evans' car, the defendant asked DeFranco if he had access to "acid" and DeFranco responded that he did not. The defendant then stated that he was "in a hurry" and had to go and got into the Chevrolet and drove away. Subsequently, field and laboratory tests indicated that the bag which had been placed in Evans' car contained more than 600 grams of cannabis.
The testimony of DeFranco, Andreen and other officers who were involved in surveillance of the transaction, conflicted on certain points. DeFranco testified that he, Andreen, and other officers field tested the contents of the bag in an alley, whereas Andreen and other officers testified that the field test was conducted at the home of one of the officers. Further, although DeFranco recalled that he had first seen the defendant after they walked to the parking lot which was adjacent to the hot dog stand, Andreen and other officers who viewed the transaction recalled that the defendant had been with Pionke, when he first approached Evans and DeFranco.
The defendant did not testify. The only defense witness was Marc Kurzman, an expert who was presented in an effort to discredit the procedures used by the State's chemist to determine that the substance introduced into evidence was cannabis.
• 1, 2 The defendant has cited a number of cases holding that mere presence at the scene of a crime does not render a person culpable for the offense (e.g., People v. Washington (1970), 121 Ill. App.2d 174), and argues that in this case, "any criminal involvement can only be inferred from speculation stemming from the mere presence of the defendant," and that he was therefore not proven guilty beyond a reasonable doubt. We disagree. The record would support a finding that the defendant was an active and willing participant in the transaction. The defendant could not have been ignorant of the purpose of the transaction, since DeFranco stated at the outset that "we are going to buy grass," and, as noted below, there was evidence that the defendant had previously engaged in a similar sale to Evans. When DeFranco asked the price, it was the defendant who responded, "$550," and it was the defendant to whom DeFranco gave the cash consideration for the illegal sale, and it was the defendant who accepted the $550. Finally, DeFranco testified at trial that Pionke removed the bag which held the cannabis from the defendant's car. Although there were certain discrepancies in the testimony presented by the State, the presence of such discrepancies presented questions of credibility to be resolved by the trier of fact, and would not justify this court in substituting its judgment for that of the trial judge, by setting aside the trial court's finding. People v. Patrick (1977), 46 Ill. App.3d 122.
• 3, 4 The defendant's next contention is that the trial judge committed reversible error by considering hearsay evidence. The defendant asserts that the court erred in allowing DeFranco to testify that Pionke told him, outside of the presence of the defendant, that "[m]y man's got the stuff in his car over in the next lot. Do you have the money?" and that the court should not have allowed DeFranco to testify that Evans told the defendant, "We're here to buy the grass."
Again, we are forced to disagree. Pionke's statements to DeFranco and Evans fell within the "co-conspirator exception" to the hearsay rule. The co-conspirator exception "allows acts and declarations of one co-conspirator to be admitted against another who is a defendant, even when the acts and declarations are made out of the presence of the defendant." (People v. Jackson (1977), 49 Ill. App.3d 1018, 1020.) There is no need for the State to introduce evidence of verbal or written communication between alleged conspirators to establish a conspiracy, "where the acts themselves, subsequent to the alleged conspiracy, inferentially establish the existence of an agreement." (People v. Graham (1971), 1 Ill. App.3d 749, 752.) Here there was sufficient evidence of an apparent concert of action between Pionke and the defendant to establish the existence of a conspiracy between the two, and there was, therefore, no error in the trial court's admission of DeFranco's testimony regarding his conversation with Pionke.
• 5 The other instance of alleged improper hearsay, involving Evans' out-of-court statement that "[w]e're here to buy the grass," was offered to show that the defendant was put on notice of the unlawful nature of the transaction, and was, thus, not hearsay;
"[h]earsay evidence includes only those statements made outside court which are offered to prove the truth of that which is asserted in the statement." Hunter, Trial Handbook for Illinois Lawyers § 65:2 (4th ed. 1972).
The defendant's contention that the trial court had committed reversible error when it admitted evidence of an alleged prior delivery of cannabis by the defendant, presents a closer question. The evidence complained of consisted of testimony by police officers describing an incident which occurred 6 days earlier on October 24, 1974. On that date, three police officers met Bruce Evans at a church. The officers set up a telephoto camera and searched Evans, giving him two $10 bills. As the officers watched, Evans went to an adjoining parking lot. After a short time, the defendant appeared in a 1965 or 1966 Chevrolet. The defendant approached Evans, and after a short conversation, was observed exchanging money for two plastic bags; the defendant then put the money in his wallet, and left in his car. Subsequent analysis showed that the plastic bags contained 16 grams of cannabis. Counsel for the defendant made a timely objection to the admission of all of this testimony.
• 6 Was this evidence of an earlier criminal transaction improper? The general rule is that evidence of offenses other than those for which a defendant is being tried is inadmissible. (People v. Romero (1977), 66 Ill.2d 325, 330.) ...