Appeal from the Circuit Court of Fulton County; the Hon.
Charles H. Wilhelm, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
The defendant, Dallas Gore, was arrested and charged with the offenses of driving while under the influence of intoxicating liquor and illegal transportation of alcoholic liquor in violation of sections 11-501(a) and 11-502(a) of the Illinois Vehicle Code (Ill. Rev. Stat. 1979, ch. 95 1/2, pars. 11-501(a), 11-502(a)). A third charge was added for unlawful possession of cannabis in violation of section 4(d) of the Cannabis Control Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 704(d)). Following a jury trial, defendant was found guilty as charged and sentenced by the Fulton County Circuit Court to serve concurrent prison sentences of 18 months and 364 days for unlawful possession of cannabis and driving under the influence, respectively, and fined $35 plus $2 surcharge and costs for illegal transportation. On appeal, defendant contends that his convictions should be reversed because the State's evidence against him was insufficient as a matter of law; or, in the alternative, that his convictions should be reversed and a new trial granted because the trial he had was unfair.
In September 1981, several days prior to the events giving rise to the offenses herein, Kathryn Lindsey agreed to lend the use of her car to the defendant in exchange for his repairing of it. By September 26, 1981, the car was in working order and Lindsey drove it to the grocery store accompanied only by her five-year old son. There were several beer bottles strewn around the floor, but to Lindsey's knowledge, no cannabis was present in the vehicle. Later that day, the defendant appeared at Lindsey's home and requested to use the car. The request was granted. The defendant, together with Jerry and Anita Carnes, drove Lindsey's car from Canton to Pekin, Illinois, where they parked the car on the street and went to a tavern for about three hours.
Around 8 p.m., Sergeant Sackett and Deputy Joyce of the Fulton County Sheriff's Department, as they were patrolling along Route 78 south of Canton, received a radio dispatch informing them that a white Mercury bearing an Illinois license plate No. 148 160 was observed driving in an erratic manner and headed towards Canton.
At 8:20 p.m., the officers observed the white Mercury described in the radio dispatch about a mile west of Monterey on Route 9. The vehicle was westbound. It weaved across the center line and into the left lane and then pulled onto the shoulder on the right side several times during a 1/4-mile stretch observed by the officers. The officers pulled the car over and Sackett asked the driver, defendant Gore, to step out for sobriety testing. Deputy Joyce, meanwhile, approached the front passenger side of the car and talked to the Carnesses. While doing so, he shone his flashlight into the passenger compartment and observed what appeared to be an open beer bottle on the back floorboard. He requested that the Carnesses step out, and he retrieved a partially emptied Pabst Blue Ribbon beer bottle. Joyce then conducted a more thorough search and found a brown grocery sack, which appeared to contain cannabis, and a second open beer bottle. The three items were removed from the Mercury and deposited in the squad car. The defendant, having failed the sobriety tests, was placed into the squad car as well. The officers and defendant proceeded to the sheriff's office, where defendant was formally charged. The Carnesses left the scene in the Mercury.
In this appeal, defendant charges that the State failed to prove his guilt of the offenses of illegal transportation of alcohol and unlawful possession of cannabis beyond a reasonable doubt. Specifically, defendant renews his arguments that the substance in the beer bottles was not proved to be alcoholic and that, for purposes of constructive possession of the cannabis, the defendant was not proved to have the requisite knowledge of its presence in the car.
• 1 The question as to whether the liquid contained in the beer bottles was, in fact, alcoholic, was, in our opinion, a factual one which the jury was competent to determine based upon the testimony of the witnesses called by the State and the jurors' own observations of the beer bottles placed into evidence. Expert testimony in this regard is not essential to a conviction of unlawful transportation of alcoholic liquor. City of Crystal Lake v. Woit (1972), 3 Ill. App.3d 1059, 280 N.E.2d 4; Keeler Mart Liquors, Inc. v. Daley (1978), 57 Ill. App.3d 32, 372 N.E.2d 1049.
• 2 Officer Joyce testified that he had observed "bottles of beer." Anita Carnes testified that he had removed "alcohol" from the car. The bottles were labeled Pabst Blue Ribbon Beer. They had been sealed, and the liquid was preserved thereby for the jury's consideration. No evidence was introduced which in any way contradicted an inference that, in fact, the liquid was alcoholic. We cannot say, based on the record before us, that the State's evidence of the alcoholic nature of the beer bottles' contents was so unsatisfactory as to create a reasonable doubt of the defendant's guilt of the offense of illegal transportation of alcoholic liquor.
• 3 However, so far as the sufficiency of the evidence to support the conviction for possession of cannabis is concerned, we believe a different result is required or in other words, we believe the evidence is insufficient to support the conviction.
As may be concluded from the statement of facts, this issue arises because, as the parties concede, the defendant was not in actual possession of the cannabis. It is undisputed the cannabis was discovered by a police officer in a closed brown paper bag underneath the right front seat, the seat being occupied at the time the car was stopped by Jerry and his wife Anita Carnes. It is also undisputed that the bag was discovered in a place where it was not visible to the driver of the car.
The gist of this offense is that it is illegal "knowingly to possess cannabis" (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704). Possession may be either actual or constructive but the terms are not mutually exclusive. Rather they form a continuum based on the relative immediacy of control. People v. Nettles (1961), 23 Ill.2d 306, 178 N.E.2d 361, is a leading case for the proposition that exclusive control of premises or of an area in which a substance is located may be considered constructive possession of the article. Depending on the nature of the control of the area exercised, both control of the article and knowledge thereof may be inferred from the control of the area. In Nettles, however, the constructive possession of the defendant was shown not merely by his tenancy of the apartment alone, but rather by such tenancy accompanied by his declaration that whatever was discovered in the apartment pursuant to the search was his.
Whether the charge of possession of contraband depends on actual or constructive possession, the offense requires knowledgeable control of the contraband. In People v. Day (1977), 51 Ill. App.3d 916, 366 N.E.2d 895, the owner driver of a car in which there were six other passengers, was held not to be in possession of everything located within the passenger compartment of the car merely because he was the driver. This declaration is perhaps broader than warranted by the facts in the Day case since the evidence showed that the bag containing the cannabis was in the actual possession of one of the passengers, it being located beneath her legs on the floor in plain sight. At least, according to Day, the driver of the car in which there are other passengers does not knowingly possess cannabis merely because he is the driver of a car in which cannabis is discovered. To support this conclusion the Day court relied in part on People v. Boswell (1974), 19 Ill. App.3d 619, 312 N.E.2d 17, which held that where admittedly cannabis was thrown from a car, nevertheless, this did not prove possession by the passenger seated closest to the window where there were other persons in the car. (See also People v. Millis (1969), 116 Ill. App.2d 283, 252 N.E.2d 395, and People v. Connie (1964), 52 Ill. App.2d 221, 201 N.E.2d 641.) Knowledge as one of the essential elements of the offense will not be inferred merely from access shared by others to the area in which the drugs are discovered. People v. Wolski (1975), 27 Ill. App.3d 526, 327 N.E.2d 308.
• 4 Where, as in this case, there is a lack of evidence the defendant was in exclusive control of the area under the passenger seat in which the cannabis was concealed and thereafter discovered, evidence is lacking the defendant was any more in possession of the contraband than the passengers in the car or for that matter the owner of the car. All of the parties, including owner, passengers and defendant, denied possession of the contraband or any knowledge about it; anyone of them may have been responsible. The only difference between the situation of these persons and the defendant was that he was the driver of the car at the time of the arrest and at some time prior thereto in the afternoon. Accordingly, we believe the defendant's guilt was not established beyond a reasonable doubt.
There are of course cases in which courts> have affirmed convictions for the offense of the illegal possession of cannabis by drivers of cars. The common thread of these cases, at least where there are passengers also involved, demonstrate the presence of additional facts showing special or specific knowledge possessed by the driver. None of these cases purports to hold that when there are passengers in a car, the driver in general control of the operation of the car is in exclusive possession of all areas within the passenger compartment and hence in knowledgeable possession of all articles located within the car. For example, in People v. O'Neal (1975), 35 Ill. App.3d 89, 341 N.E.2d 36, the driver's illegal possession of shotgun shells was affirmed because the defendant "knew the registration was in the compartment, the trial court could have reasonably inferred that he placed it there; and since the shells fell out when the door was opened, it was also reasonable to infer that he knew they were there. Obviously, the shells were in the front of the compartment within easy view. They were not wedged in the back of the compartment or buried under other material. Furthermore, the fact that he hastily pushed the fallen shells back into the compartment shows not only prior knowledge of their presence, but an attempt at concealment and the futile hope that their falling may have been unnoticed." (People v. O'Neal (1975), 35 Ill. ...