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People v. Hunter

OPINION FILED MAY 11, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

FRED HUNTER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant was convicted and sentenced to a term of three years for possession of a controlled substance with intent to deliver. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; (2) he was denied his sixth amendment right to confront witnesses against him when the State introduced the hearsay testimony of a police informer; (3) he was deprived of a fair trial by the admission of evidence suggesting his involvement in other crimes; (4) the trial court erred in admitting irrelevant and prejudicial testimony regarding illicit drug usage; (5) he was denied due process of law by the State's failure to timely disclose the identity of rebuttal witnesses in violation of Supreme Court Rule 412 (87 Ill.2d R. 412); (6) he was denied a fair trial by the admission of (a) irrelevant evidence during cross-examination of a defense witness, and (b) improper rebuttal testimony on that collateral matter; (7) the trial court erred in (a) refusing tendered instructions concerning lawful possession of controlled substances, and (b) failing to grant a mistrial based on prosecutorial misconduct; and (8) one of his convictions for possession of a controlled substance with intent to deliver must be vacated since the two counts arose from a single physical act.

At trial, Officer Sebeck testified that during his seven-year career as a Chicago police officer, he had participated in approximately 500 investigations involving many types of narcotics, the most common being injectable pills, which are pills usually taken orally when prescribed by a physician but injected in solution form by illicit users. Among those injectable pills was a combination known as "T's and Blues," consisting of equal parts of Talwin, a peach-colored pill commonly prescribed as a pain killer, and Pyrobenzamine, a blue-colored, nonprescription pill used in the treatment of colds. Illicit users generally purchase the pills in tinfoil packets containing one of each pill.

Sebeck further testified that on September 4, 1981, he and his partner were working in the area of Montrose and Broadway on an unrelated case when they noticed defendant seated alone in his parked station wagon. Based on a conversation with an informant a month earlier regarding defendant and that car, they began surveillance and observed an individual approach the car and exchange something with defendant. He (defendant) was then followed to another location, where three to five other persons approached his parked car and exchanged something with him. Suddenly, one of the individuals recognized them as police officers, and the group around the car scattered and ran. Defendant pulled away from the curb and turned the corner, but stopped when they signaled for him to do so. When defendant opened the door, he (Sebeck) noticed 10 to 14 pink and blue pills scattered on the front seat and floor. He recognized them as "T's and Blues," and immediately placed defendant under arrest and searched the car. No other substances were found in the front portion of the car, but he discovered five bottles in a locked rear compartment which contained Talwin, Pyrobenzamine, Preludin, Ritalin, and Dilaudid. He and his partner then transported defendant to a police station where the bottles of pills were placed in a sealed narcotics envelope and sent to a police laboratory for analysis.

On cross-examination, Sebeck acknowledged that his reports did not mention any exchanges between defendant and the individuals who approached the car; that no attempt was made to apprehend any of those persons; that he found no tinfoil or syringes in defendant's car; and that, in testimony at a pretrial hearing, he had stated he saw 10 to 14 pink pills, which he recognized as Talwin, on the front seat of defendant's car. He also stated that a separate inventory of 10 to 14 loose pills was not filed, explaining that his partner placed those pills in the appropriate containers found in defendant's trunk prior to the inventory, and that he did not search defendant for money, since at that time cash was considered contraband only when commingled with the narcotics.

Officer Audino corroborated Sebeck's testimony and added that he recognized the individuals who approached defendant's car as illicit narcotics users. He also testified that he searched defendant when he was arrested and found approximately $90 in cash on his person, but no controlled substances; that after Sebeck gave him the pills found on the front seat of defendant's car, he placed them in the containers found in the rear compartment; and that Sebeck had to open the locked rear compartment forcibly when defendant claimed that he had no key therefor. Audino admitted that although he recognized the individuals who approached defendant's car, he made no attempt to apprehend them, nor had he sought to question any of them since that time. He also stated that the bottles found in defendant's car had labels bearing the name of a physician and a date, as well as a second name which was illegible. However, one bottle bore the date April 6, 1979, and one of the bottles labeled Talwin actually contained Ritalin.

Gerald Pazin, a forensic chemist, testified that he examined the bottles of pills recovered from defendant's car, and four of the bottles contained, respectively, pentazocine (commonly called Talwin), methylphenidate (commonly called Ritalin), phenometrizine (commonly called Preludin), and triple minimine (commonly called Pyrobenzamine). The contents of the fifth bottle were insufficient to make a positive identification, but it was possible that the substance therein was Dilaudid. All but Pyrobenzamine were controlled substances, and all were manufactured by pharmaceutical companies.

Sergeant McCue, testifying as an expert witness for the State on the use and abuse of narcotic substances, stated that Talwin is used by drug abusers almost exclusively in conjunction with Pyrobenzamine, and the combination, known as "T's and Blues," is a substitute for heroin. They are purchased on a one-to-one ratio, called a set, for $8 to $10 per set, and are crushed, mixed with liquid, heated, and injected. A user will inject two to six sets per day. Ritalin is usually sold individually, in conjunction with Talwin and Pyrobenzamine, but is sometimes misrepresented as Talwin. McCue further testified that he knew of no legitimate purpose for having Talwin, Ritalin, and Preludin in conjunction with one another; however, he admitted that all three are commercially manufactured and prescribed by doctors. Ritalin and Preludin are stimulants, while Talwin is an analgesic used primarily to relieve light to moderate pain. Pyrobenzamine, an antihistamine, is a nonprescription drug used in the treatment of allergies and asthma.

Letisha Stadelman testified for defendant that she was the wife of Dr. Chester Stadelman and had worked for him as a receptionist, as well as keeping records and dispensing medication, during the 55 years that he practiced medicine. On September 1, 1981, defendant, whom she recognized as one of her husband's patients, came to his office complaining of pain. She called her husband, who was at home ill that day, and after talking to him gave defendant a two-month supply of Talwin (120 pills), a two-month supply of Ritalin (120 pills), and 30 Preludin tablets. The pills were kept on the premises, and she placed them in plastic containers before giving them to defendant.

On cross-examination, Mrs. Stadelman stated that she noted in defendant's medical record that he was given the pills, but her husband disposed of all his records when he retired on September 15, 1981, and defendant's records were no longer in existence. Mrs. Stadelman further stated that her husband, who was then 81 years old, had been ill for approximately five years and had had a very limited practice since suffering a stroke in 1980. She acknowledged that at the time defendant came to the office, her husband was no longer seeing patients and had not been to the office in three to four weeks. Defendant had no appointment, and the office just happened to be open because she was there preparing to close it permanently. Mrs. Stadelman denied that she ever dispensed medication to other patients, and admitted that defendant was not given a physical examination prior to receiving the drugs.

Thomas Dwyer, an assistant State's Attorney testifying for the State in rebuttal, read several sections of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1100 et seq.), which provided that if a drug containing pentazocine is dispensed other than by administering, an official triplicate form must be filed with the State and a copy thereof retained in a separate patient's record for two years; that the ultimate user can lawfully possess a controlled substance only in the container in which it was delivered by the person dispensing it; and that an oral prescription for a substance containing pentazocine may be issued only in an emergency situation. At defendant's request, Dwyer also read sections of the act providing that an ultimate user or a person in possession of any controlled substance pursuant to a lawful prescription of a practitioner may lawfully possess controlled substances; and that "prescription" means a lawful written or verbal order of a physician.

Michael Fullman, an assistant deputy director of the Illinois Department of Registration and Education, also testifying for the State in rebuttal, stated that a search of that agency's records revealed that Dr. Stadelman made no filings of the required triplicate form for the months of September through December 1981. He acknowledged that the ultimate user is not required to file anything with the State, and that Dr. Stadelman was licensed to prescribe and dispense controlled substances in September 1981.

OPINION

Defendant initially contends that he was not proved guilty beyond a reasonable doubt, arguing first that the State failed to prove an essential element of the crime charged.

With regard to this contention, defendant asserts that the State must prove each element of the crime charged (People v. Wolter (1979), 78 Ill. App.3d 32, 396 N.E.2d 1102), and posits that in order to prove that he knowingly possessed controlled substances with intent to deliver, the State must prove (1) that his possession of those substances was unlawful, and (2) that he intended to deliver them. He argues that since the substances in question were dispensed to him by an agent or employee of a licensed physician, the State has failed to prove the first of these elements.

• 1 Initially, we note that defendant was not charged with violation of section 402 of the Illinois Controlled Substances Act (the Act) (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1402), proscribing unlawful possession, but with violation of section 401 (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401), which provides in relevant part that "[e]xcept as authorized by this Act, it is unlawful for any person knowingly to * * * possess with intent to * * * deliver, a controlled substance." Nevertheless, it is apparently defendant's position that if his possession of the drug was lawful, he may not be convicted of violating section 401, regardless of what he intended to do with that substance. We find this argument untenable; in effect, he argues that, if an individual receives a controlled substance from a licensed practitioner, he may thereafter do whatever he wishes with it, including delivering it to an illicit user. Such a result was clearly not the legislature's intention in enacting this statute, nor is such an interpretation possible under the Act.

An analysis of the relevant portions of the Act reveals that the gist of the crime of possession with intent to deliver is the intended disposition of the controlled substance, not the manner in which possession was acquired. Section 302 of the Act would authorize possession with intent to deliver by "[p]ersons registered by the Department of Registration and Education under this Act to manufacture, distribute, or dispense controlled substances * * *." (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1302(b).) The Act would further authorize possession with the intent to deliver by the following unregistered persons: "an agent or employee of any registered manufacturer, distributor, or dispenser of any controlled substance if he is acting in the usual course of his employer's lawful business or employment; a common or contract carrier or warehouseman, or an agent or employee thereof, whose possession of any controlled substance is in the usual lawful course of such business or employment; [and] a registered pharmacist who is employed in, or the owner of, a pharmacy licensed under this Act * * * at the licensed location, or if he is acting in the usual course of his lawful profession, business, or employment." (Ill. Rev. Stat. 1981, ch. 56 1/2, pars. 1302(c)(1), (2), (5).) Defendant does not contend that he falls within any of these categories of persons authorized by the Act to possess controlled substances with the intent to deliver them, and there is nothing in the evidence which would so indicate. Instead, he argues that his possession was authorized by section 302(c)(3) of the Act, which provides that controlled substances may lawfully be possessed by the ultimate user thereof. (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1302(c)(3).) However, while that section would be relevant to section 402 of the Act, prohibiting unlawful possession, it is irrelevant to section 401, since by definition an ultimate user is not one who possesses a controlled substance with intent to deliver, but one who possesses it "for his own use or for the use of a member of his household * * *." (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1102(ss).) Thus, an ultimate user would not fall within the category of persons "authorized by [the] Act * * * knowingly to * * * possess with intent to * * * deliver, a controlled substance." (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 1401.) It is true that possession of a controlled substance by an ultimate user does not violate section 401, but that is because he has no intent to deliver, not because his possession thereof is lawful.

It is our view that in proving the crime of possession with intent to deliver, the State must show that the defendant knowingly possessed the controlled substance, that he did so with the intent to deliver it, and should there be indication to the contrary, that the defendant was not authorized by the Act to possess it with that intent. The manner in which the defendant acquired the controlled substance may be relevant insofar as it bears on his intent or on his authorization, but it is not a separate element of the crime of possession with intent to deliver. Defendant's argument here with regard to his possession of the controlled substances as an ultimate user is clearly directed at the element of intent to deliver rather than at any separate element of lawful possession.

• 2 We turn, then, to his alternative contention, that the State has failed to prove beyond a reasonable doubt that he intended to deliver these controlled substances, maintaining that it can most reasonably be inferred from the evidence that he possessed them for his own use. In particular, he relies on the testimony of Mrs. Stadelman to the effect that he came to her husband's office complaining of severe pain and, after talking to the doctor, she dispensed various controlled substances to him; that the substances found in the car were not accessible to him because they were locked in the trunk, and he had no key; and that he did not have large amounts of cash in his possession when arrested.

A verdict of guilty will not be set aside on review unless the evidence fails to sustain that verdict, or the evidence is so improbable, unsatisfactory, or inconclusive as not to be worthy of belief (People v. Ellis (1978), 74 Ill.2d 489, 384 N.E.2d 331; People v. Rhoads (1982), 110 Ill. App.3d 1107, 443 N.E.2d 673), and where an element of the crime charged is a specific mental state, the existence thereof is a question of fact to be determined by the jury, as with any other fact (People v. Terrell (1982), 110 Ill. App.3d 1086, 443 N.E.2d 742). Of course, mental states by their very nature must generally be inferred from the facts and circumstances surrounding the alleged offense (People v. Kline (1976), 41 Ill. App.3d 261, 354 N.E.2d 46); however, where those facts and circumstances could give rise to either of two inferences, our standard on review is the same as with any conflicting evidence: we will not substitute our judgment for that of the jury unless the inference it accepts is inherently impossible or unreasonable (People v. Schaefer (1980), 87 Ill. App.3d 192, 409 N.E.2d 129; People v. Colley (1980), 83 Ill. App.3d 834, 404 N.E.2d 378; People v. Trump (1978), 62 Ill. App.3d 747, 379 N.E.2d 370).

In the instant case, defendant argues that the only reasonable inference to be drawn from the evidence is that he possessed the controlled substances in question for his own use. We disagree. It is our view that the facts and circumstances of this case point overwhelmingly to but one reasonable inference; namely, that defendant possessed Talwin and Ritalin with intent to deliver them. While Mrs. Stadelman asserted that the drugs were dispensed to defendant for his own use, the circumstances of their acquisition indicate otherwise. Dr. Stadelman was an 81-year-old physician who apparently had been incapable of practicing medicine for some time and was no longer seeing patients. Nevertheless, his wife stated that after speaking with him, she dispensed large quantities of controlled substances to defendant without determining the origin of his supposed pain or the truth of his claim, nor does it appear that she even suggested defendant should consult with a practicing physician. The jury could reasonably have believed that Mrs. Stadelman lacked credibility, particularly in view of her testimony that any records which might have corroborated that defendant had been a patient, or disclosed that defendant suffered from some illness requiring long-term consumption of both analgesics and stimulants, had been destroyed shortly after his arrest.

Any inference that defendant possessed these substances for his own use is further negated by the volume and combination of controlled substances in his possession and the manner in which they were kept. The jury was not confronted here with possession of a small amount of medication in defendant's pocket or in his home medicine cabinet; rather, the evidence showed that he had approximately 350 pills locked in the trunk and scattered on the front seat of his car. Furthermore, there was evidence that the combination of drugs in his possession was of the type most commonly abused, specifically, "T's and Blues" and Ritalin, which is often misrepresented as Talwin. In this regard, we also note that there was evidence that the Ritalin was in a container marked as Talwin. In addition, the Talwin which was allegedly dispensed to defendant for his own use on September 1, 1981, was not only still in the trunk of his car on September 4 — an unusual place to keep prescribed medication — but also in a container bearing the date April 6, 1979.

Defendant urges that the jury could not reasonably have found that he possessed these drugs with intent to deliver because the evidence disclosed that he had no key to the trunk and had only $90 in his possession. We do not believe that this evidence is dispositive on the issue of defendant's intent, since it did not establish that defendant had no key, but rather, that he merely claimed to have none when the arresting officers asked for a key in order to search the trunk of his car. With regard to the amount of money in defendant's possession, we note that the evidence does not indicate how many transactions defendant might have engaged in immediately before his arrest, apart from the four to six persons who approached his car as the officers observed him. Assuming that each of the transactions observed was a drug transaction, although there is no positive evidence thereof, the amount of cash in defendant's possession was in keeping with that number of transactions.

Finally, the facts and circumstances observed by the arresting officers further contribute to the inference that defendant possessed Ritalin and Talwin with the intent to deliver them. They first observed defendant sitting alone in his parked car. A known drug user approached, and an exchange took place. Defendant then moved to another location just two blocks away, and again parked his car and remained seated therein. Several more known drug users approached him, and further exchanges took place. When those individuals realized that police officers were observing them, they scattered and ran, and defendant immediately left the scene. When stopped by the officers, he had 10 to 14 of the pills known as "T's and Blues" on the front seat of his car.

Defendant asserts that the testimony of the officers was not credible, noting a number of alleged inconsistencies in their statements. The credibility of witnesses and the weight to be given their testimony is within the province of the jury to determine, and we do not believe that the minor inconsistencies, if any, noted by defendant rendered their testimony so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt as to his guilt. (People v. Rainge (1983), 112 Ill. App.3d 396, 445 N.E.2d 535.) Defendant maintains that Sebeck testified that Audino approached the passenger side of the car, while Audino stated that he remained at the back of the vehicle to protect his partner. We do not see this as a discrepancy, since Audino may well have stationed himself at the rear passenger side, and his testimony in no way contradicts that of Sebeck. Defendant also points out that Sebeck testified that nothing was found in the search of defendant's person, while Audino stated that defendant had $90 in his pocket. However, it was Audino, not Sebeck, who conducted the search, and we believe that Sebeck's testimony was directed to the presence of contraband, and he explained that he did not consider cash contraband unless it was commingled with the drugs. Finally, defendant asserts that Audino testified that both he and Sebeck recognized the people who approached his car, while Sebeck allegedly stated that he did not recognize them. We find this to be a mischaracterization of Sebeck's testimony. He was not asked if he recognized those individuals, and never said that he did not. In the testimony referred to by defendant, Sebeck, when asked on cross-examination if he wrote down a description of the persons who approached defendant's car, responded that he did not. There is nothing in that response which would indicate that Sebeck did not recognize them.

Defendant also argues that Sebeck's testimony at trial was impeached on a vital point, and it was thus not worthy of belief. Sebeck testified at trial that there were 10 to 14 pink and blue pills, which he recognized as "T's and Blues," on the front seat of defendant's car. However, he acknowledged that, at a pretrial hearing, he testified that he saw 10 to 14 pink pills, which he recognized as Talwin. Defendant maintains that this discrepancy destroys the State's case, since the State "admits" that it is only the presence of those loose blue pills on the front seat which gives rise to an inference of intent to deliver. We are aware of no such admission by the State and, as we have already discussed, there are numerous facts and circumstances giving rise to that inference. Furthermore, Sebeck's testimony at the pretrial hearing was offered for the sole purpose of establishing probable cause for defendant's arrest and the search of his car. As such, the important information would have been the fact that a controlled substance, in this case Talwin, was in plain view in the car, and it is not unreasonable to believe that Sebeck saw no reason to mention the blue pills at the hearing. In addition, Sebeck's trial testimony was corroborated by Audino, who stated that Sebeck handed him 10 to 14 pink and blue pills before searching the rear compartment of defendant's car.

Given the totality of facts and circumstances established by the evidence, it is our view that the jury could easily have concluded therefrom that defendant possessed these substances with the intent to deliver them, and not for his personal use.

• 3 Defendant next contends that he was denied his sixth amendment right to confront witnesses against him by the admission of hearsay testimony regarding information provided to the arresting officers by an informant, in violation of a motion in limine granted by the trial court which specifically excluded that testimony. At a pretrial hearing regarding probable cause to arrest defendant and search his car, Officer Sebeck testified that approximately one month before the arrest, an informant said that defendant, whom he identified as "Speedy," was selling drugs in the area, having taken over the usual route of a deceased member of the El Rukn gang. The informant also provided a description of defendant's car, including the license plate number. The trial court ruled that the substance of this information could not be revealed at trial, but stated that the officers could testify then to the fact that the conversation took place. Pursuant to this ruling, Officers Audino and Sebeck were allowed to testify, over defendant's objection, that they placed defendant under surveillance based on a conversation with an informant concerning defendant and his car. It is defendant's position that this hearsay testimony violated the trial court's order and was highly prejudicial because it raised the inference that he had engaged in other crimes. It is our view that the testimony was in compliance with the court's ruling on the motion in limine; nevertheless, the question remains whether even that limited testimony should have been admitted.

Hearsay is an out-of-court statement which is offered to prove the truth of the matter asserted therein and dependent for its value on the credibility of the out-of-court declarant. (People v. Jones (1983), 114 Ill. App.3d 576, 449 N.E.2d 547.) With limited exceptions, such statements are inadmissible because the party against whom they are offered has no opportunity to test that credibility through cross-examination of the declarant. (People v. Parrott (1976), 40 Ill. App.3d 328, 352 N.E.2d 299.) However, it has been held that where the testimony of an out-of-court statement is offered, not for the truth thereof, but for the limited purpose of explaining the reason the police conducted their investigation as they did, the testimony is not hearsay. People v. Sanders (1980), 80 Ill. App.3d 809, 400 N.E.2d 468.

In the instant case, the testimony in question was admitted for the purpose of explaining the officers' investigatory procedure, and therefore was not hearsay. The trial court took care to avoid undue prejudice to defendant by assuring that the damaging substance of the conversation would not be heard by the jury. Under similar circumstances, officers have been permitted to testify that after conversing with an individual they took certain actions. (See, e.g., People v. Griggs (1982), 104 Ill. App.3d 527, 432 N.E.2d 1176; People v. Daliege (1976), 40 Ill. App.3d 706, 352 N.E.2d 247.) Such testimony is not hearsay because it is based on the officers' own personal knowledge, and is admissible although the inference logically to be drawn therefrom is that the information received motivated the officers' subsequent conduct. Here, of course, the officers made that inference explicit when they testified that, based on the information received, they placed defendant under surveillance. However, such statements also have been held not to constitute hearsay, again because they were not offered for the truth of the matter asserted therein, but merely to explain the officers' conduct. See, e.g., People v. Thomas (1975), 25 Ill. App.3d 88, 322 N.E.2d 597.

Testimony similar to that offered by Officers Sebeck and Audino was recently held admissible under remarkably similar circumstances in People v. Munoz (1982), 103 Ill. App.3d 1080, 432 N.E.2d 370. The defendant therein was also charged with unlawful possession of a controlled substance with intent to deliver. It was revealed at trial that a confidential informant related a description of defendant's car to police officers and, based on that information, the officers began surveillance of the car and eventually effected defendant's arrest. On appeal, the court held that the testimony regarding the conversation with the informant was admissible since it was offered merely to explain why the police followed the defendant and searched his car. Similarly, here, the testimony was admitted merely to explain why the officers commenced surveillance of defendant.

Defendant asserts that the testimony was nevertheless inadmissible because, since the conversation took place one month before his arrest, the jury could have inferred that he had engaged in other crimes. We do not believe that this distinguishes the instant case from other cases where the evidence has been held admissible, since in all such cases the objection raised is that the jury could infer therefrom that information was provided which implicated the defendant in crime. In cases where officers have testified that they spoke to an accomplice in order to gather information about others involved in the crime charged, and immediately after that conversation arrested the defendant, we have found such testimony admissible despite the fact that the jury could reasonably infer therefrom that the accomplice implicated the defendant. (See, e.g., People v. Jackson (1979), 72 Ill. App.3d 231, 390 N.E.2d 47; People v. Williams (1977), 52 Ill. App.3d 81, 367 N.E.2d 167; People v. Coleman (1974), 17 Ill. App.3d 421, 308 N.E.2d 364.) We find those cases dispositive, since the inference that an accomplice implicated the defendant has no less potential for prejudice than the possible inference than an informant implicated him in another crime.

Defendant further argues, however, that contrary to its assertion that the testimony was offered merely to explain investigatory procedure, the State treated the testimony as evidence of intent to deliver in closing arguments. Therefore, he posits, the information was offered for the truth of the matter asserted therein and should have been excluded as hearsay. The conversation with the informant was mentioned by the prosecutor on three occasions in closing argument. On two of those occasions, it appears that the reference was clearly to investigatory procedures, and constituted proper argument on the evidence. On the third occasion, in arguing to the jury evidence from which it could infer intent to deliver, one factor mentioned was "the prior conversation of the officers with their informant." We agree that this was improper use of the evidence. (See, e.g., People v. Buckner (1984), 121 Ill. App.3d 391, 459 N.E.2d 1102.) However, it is objectionable because it constituted improper argument, not because the testimony was hearsay. During trial, when the trial court ruled on defendant's objections, it correctly held that the testimony was admissible for the limited purpose of explaining the officers' actions. There is no way the court could have then known that the prosecutor would subsequently make improper use of that testimony, and it is our view that the later argument cannot serve to make a proper evidentiary ruling of the court retroactively erroneous.

• 4 With regard to the impropriety of the prosecutor's argument concerning that testimony, it should be noted that prosecutors have recently begun to take improper advantage of the admissibility of such evidence by ostensibly offering it for the limited purpose, and, once it is admitted, making impermissible use thereof in closing argument (see, e.g., People v. Buckner (1984), 121 Ill. App.3d 391, 459 N.E.2d 1102), and we would warn that this conduct is improper and, in flagrant cases, may lead to reversal (see, e.g., People v. Campbell (1983), 115 Ill. App.3d 631, 450 N.E.2d 1318). If the State indeed intends to use it for the limited purpose permitted, the prosecutor should confine his arguments to that purpose, and any improper use should not be tolerated. Here, however, there was only a single improper reference to which the trial court sustained defendant's objection and further admonished the jury that the content of the conversation with the informant was not in evidence and was not to be considered by them. We believe that by promptly sustaining the objection and instructing the jury to disregard it, the trial court cured any prejudice to defendant resulting from the improper argument. (See People v. Baptist (1979), 76 Ill.2d 19, 389 N.E.2d 1200.) Moreover, in the light of the overwhelming evidence of defendant's guilt, we do not believe that it can be said the jury's verdict would have been different had this single remark not been made.

• 5 Defendant also contends that he was denied a fair trial by the admission of evidence suggesting his involvement in other crimes. When arrested, defendant had in his possession approximately 30 tablets of Preludin, which is also a controlled substance. Although he was not charged with possession thereof with intent to deliver, the trial court denied his motion in limine to exclude any evidence of other drugs found in his car. The trial court also allowed testimony that the Ritalin was in a container marked "Talwin," and it appears that, pursuant to section 312(g) of the Act, "[a] person to whom or for whose use any controlled substance has been * * * dispensed * * * may lawfully possess such substance only in the container in which it was delivered to him by the person dispensing such substance." (Ill. Rev. Stat. 1979, ch. 56 1/2, par. 1312(g).) Defendant argues that admission of this testimony regarding other crimes was highly prejudicial and inflammatory, and his conviction must therefore be reversed.

It is generally true that evidence of offenses other than those for which a defendant is being tried is inadmissible (People v. Romero (1977), 66 Ill.2d 325, 362 N.E.2d 288); however, exceptions are made where that evidence is probative of motive, intent, identity, absence of mistake, or modus operandi in establishing the crime charged (People v. McDonald (1975), 62 Ill.2d 448, 343 N.E.2d 489). Where it appears that the proffered evidence is within one of these exceptions, the decision whether to admit it lies within the sound discretion of the trial court (People v. Lieberman (1982), 107 Ill. App.3d 949, 438 N.E.2d 516) based on a balancing of the need for and strength of that evidence in proving the crime charged against "`* * * the degree to which the jury will probably be roused by the evidence to overmastering hostility'" (People v. Rollins (1982), 108 Ill. App.3d 480, 492, 438 N.E.2d 1322, 1331).

We see no abuse of discretion in the instant case, since the evidence in question was highly relevant on the issue of defendant's intent to deliver. His defense was that these drugs were dispensed for his own use, and that claim is negated by the fact that he had in his possession approximately 350 pills, all of them commonly abused substances. Furthermore, there was testimony which established that the combination of drugs found in his possession would not have been possessed for any legitimate purpose. Thus, both the quantity and the combination of the substances in defendant's possession were probative of his intentions, and the evidence that he possessed Preludin in addition to Talwin and Ritalin was relevant to that question. The testimony regarding the mislabeled Ritalin was further evidence of his intentions, since it appears from other testimony that Ritalin is frequently misrepresented to illicit users as Talwin. Finally, we do not believe that the evidence concerning 30 Preludin tablets, in addition to approximately 225 Ritalin and Talwin, or the evidence that the Ritalin was mislabeled, would have so "roused the jury to overmastering hostility" that the evidence should have been excluded despite its probative value on the issue of intent.

Evidence of other drug-related crimes has frequently been held admissible where it tended to establish intent or knowledge with regard to the crime charged (see, e.g., People v. Goodman (1979), 75 Ill. App.3d 369, 393 N.E.2d 1233; People v. Hanson (1977), 44 Ill. App.3d 977, 359 N.E.2d 188), but defendant argues that these cases are distinguishable, and asserts that the possession of a completely different substance cannot be used to establish intent to deliver the substance charged. However, as noted above, we do not believe that it is only the possession of the subject matter of the charge which can shed light on a defendant's intentions. Furthermore, it appears to us that defendant misinterprets the case he relies upon to establish the proposition that the evidence is inadmissible unless it involves the identical substance as the subject of the crime charged. In People v. Pates (1980), 80 Ill. App.3d 1062, 400 N.E.2d 553, the defendant was charged with possession of 10 pounds of cannabis with intent to deliver. The substance was in the back of a friend's pickup truck; however, after defendant's arrest, officers found a burning marijuana cigarette in the ashtray of his car, and a small amount of marijuana in the pocket of a jacket on the back seat. The court held that the marijuana found in the car should not have been admitted because it simply was not probative of the offense charged, stating that "[i]t [was] merely probative of the fact that defendant and/or a passenger in his car, used or possessed marijuana." (80 Ill. App.3d 1062, 1068, 400 N.E.2d 553, 558.) The supreme court agreed that, under those circumstances, the possession of a small amount of marijuana was not probative of his intent to deliver the 10 pounds which was the subject matter of the crime charged. (People v. Pates (1981), 84 Ill.2d 82, 88, 417 N.E.2d 618, 621.) Defendant relies on the fact that both courts>, in discussing the evidence, noted that the marijuana discovered in defendant's car was not of the same type as the marijuana in the back of the pickup truck. However, contrary to defendant's assertions, a review of the totality of the evidence in that case reveals that this was not the basis for the court's ruling. It was concerned, as we are here, with whether or not the separate crime was probative of any issue to be proved in the crime charged, and found that it was not, under the circumstances therein. In the instant case, we believe that the circumstances of the other crimes were probative on the issue of intent, and therefore properly admitted.

• 6 Defendant further contends that the trial court erred in admitting the testimony of Officers Sebeck and McCue relating to the abuse of controlled substances. He maintains that this evidence was totally irrelevant to the crime charged, and was extremely prejudicial because "[i]t was designed to acquaint the jury with lurid details of drug addicts and drug trafficking thereby suggesting that the defendant was responsible for its existence." Furthermore, he asserts, the evidence served to distract the jury from the issue to be decided, i.e., whether he possessed Ritalin and Talwin with the intent to deliver them.

Evidence is relevant which tends to prove or disprove a disputed fact (People v. Jones (1982), 108 Ill. App.3d 880, 439 N.E.2d 1011), or tends to make a point in issue more or less probable (People v. Reed (1982), 108 Ill. App.3d 984, 439 N.E.2d 1277), or explains a fact in evidence (People v. Neiman (1967), 90 Ill. App.2d 337, 232 N.E.2d 805); it has been said that whatever is relevant is admissible, and "`* * * [e]xceptions to that principle must justify themselves'" (People v. Monroe (1977), 66 Ill.2d 317, 321, 362 N.E.2d 295, 296). The initial determination of what is relevant is within the sound discretion of the trial court, and ...


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