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People v. Atchley





APPEAL from the Circuit Court of Stark County; the Hon. CHARLES M. WILSON, Judge, presiding.


The defendant, Lanny Atchley, appeals from his conviction for delivery of more than ten grams but not more than thirty grams of a substance containing cannabis, in violation of section 5(c) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 705(c)). He was sentenced to two years in the custody of the Illinois Department of Corrections.

The defendant's first contention on appeal is that he was not proved guilty beyond a reasonable doubt, because the evidence failed to establish that he had delivered a substance containing cannabis. The State called two occurrence witnesses. The first, 18-year-old Dennis Bogner, testified that he came to defendant's house trailer on the evening of February 16, 1980. Bogner testified that, upon entering the trailer, he saw defendant and Tom McNabb seated on a couch. McNabb was to the defendant's left. Bogner asked for a bag (of marijuana). Defendant said nothing, but smiled. McNabb then picked up from the floor a plastic bag containing marijuana. McNabb handed this bag to the defendant, who, in turn, handed it to Bogner. Bogner then handed the defendant $35 and left.

Tom McNabb testified for the State. His description of the events was the same as Bogner's up to the point of his handing the bag of marijuana to the defendant. McNabb testified that the defendant then rose and crossed the room to converse with Bogner. Their conversation lasted about a minute and Bogner then departed. When defendant returned to the couch he no longer had the bag of marijuana. Some time that evening, the defendant gave McNabb $35 "for the marijuana."

The defendant testified on his own behalf. He testified that Bogner entered his trailer and asked if anyone had a "bag." "I didn't say anything. I knew there was one, so I just smiled and looked over to Tom." McNabb picked up a bag from the floor to the left of McNabb's left foot and "handed it out." "Bogner was reaching for it and I just took up the slack and took it from Tom and I handed it to Dennis." Then, "Dennis handed me the $35.00 and I handed it to Tom." He acknowledged that he knew the "bag" in question to contain cannabis.

The defendant contends that the transaction was between Bogner as buyer and McNabb as seller, and that the defendant was merely present. Therefore, argues the defendant, he was not proved guilty of "delivery" of cannabis. No accountability instruction was read to the jury.

The testimony of both Bogner and McNabb reveal that Bogner carried out the transaction with the defendant, although McNabb admits that the marijuana was his own and that he was the ultimate recipient of the money. In People v. Aldridge (1960), 19 Ill.2d 176, 179, 166 N.E.2d 563, cert. denied (1960), 364 U.S. 873, 5 L.Ed.2d 95, 81 S.Ct. 117, our supreme court affirmed the conviction of the defendant for a heroin sale, even though there was

"* * * no direct testimony that Aldridge ever owned or had possession of the heroin, or that he acted as principal in the transaction. Also, the record shows that at the time of his arrest Aldridge had not received any of the money which had been paid for the drug. However, the scope of the offense here involved is not restricted by the principles of law that relate to normal sales. Section 2-11 of the Uniform Narcotic Drug Act defines `sale' to include `barter, exchange, or gift, or offer therefor, and each such transaction made by any person whether as principal, proprietor, broker, agent, servant, or employee.' (Ill. Rev. Stat. 1957, ch. 38, par. 192.28-2.11.) Under the broad reach of this definition it is not necessary to trace title to the drug with technical nicety in order to establish an unlawful sale. Nor does one who is proved to have participated in some capacity forbidden by the statute escape guilt because the proof does not fix with certainty the particular capacity in which he acted. Proof that a person participated in a transaction as principal, agent, servant, or employee is sufficient. Cf. People v. Glass 16 Ill.2d 595, 597; People v. Shannon, 15 Ill.2d 494, 496."

• 1 The Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 701 et seq.) defines "delivery" as follows:

"(d) `Deliver' or `delivery' means the actual, constructive or attempted transfer of possession of cannabis, with or without consideration, whether or not there is an agency relationship." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 703(d).)

We find this definition consonant with the reasoning of our supreme court in People v. Aldridge. Under this definition, the jury was justified in finding, on the basis of the evidence before it, that the defendant was proved guilty beyond a reasonable doubt of the delivery of cannabis.

• 2 The defendant next contends that the marijuana placed in evidence as People's Exhibit No. 3 should have been excluded because the chain of custody was insufficiently established.

The State's evidence indicates that a bag containing a substance later identified as cannabis was taken from Dennis Bogner on February 17, 1980, when Bogner was arrested. The arresting officer, Stark County Deputy Sheriff Patrick Horrie, took custody of the bag. It remained in Horrie's continuous custody, locked in a tool box to which Horrie had the only key. The box was kept at Horrie's home. The cannabis was removed from the box for testing by the Illinois Crime Lab, for inspection by the State's Attorney, and for court appearances, but was accounted for at all times.

The defendant asserts that "the substance was seized on February 17, 1980, but was not taken to the Illinois Crime Lab at Morton for testing until April 15, 1980. There is no testimony that up to that time the plastic bag in which the plant material was contained at the time it was seized had been in any way marked or identified." Also, Pat Horrie continued to hold this evidence at his residence for one month after he resigned as deputy sheriff. "There is no evidence that he was asked by anyone about this evidence at the time he resigned or prior thereto as to where he kept it, and there is no evidence of any conversation that he had with anyone as to the safekeeping of this substance after he resigned." This, argues the defendant, constitutes such "careless and ...

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