Appeal from the Circuit Court of Macon County; the Hon. Donald
W. Morthland, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 25, 1984.
The defendant, Paris Lenoir, was convicted in a bench trial of two counts of armed violence and sentenced to concurrent 10-year terms of imprisonment. The convictions stem from the search of a house in Decatur on August 25, 1983, by State and municipal law enforcement officers. The defendant, a guest in the house, was found alone in a bedroom lying on a bed; beside him were two controlled substances — phencyclidine (PCP) and pentazocine — and a revolver, which was loaded. The defendant argues that the State failed to prove that he knew about or was in possession of these items. The defendant also argues that using a drug-possession offense as the underlying felony for armed violence is inconsistent with the purpose of the armed violence statute. The defendant argues alternatively, and the State concedes, that one of his two convictions must be vacated because they are based on a single offense.
The defendant's bench trial was held October 17, 1983. Gerald Shields, an agent of the Division of Criminal Investigation, Department of Law Enforcement, led the search and arrested the defendant. Shields testified that at about 5 p.m. on August 25 he and eight or nine other officers went to a house at 1415 North Gulick in Decatur to execute a search warrant. Shields was wearing the uniform of an Illinois Bell repairman, and by that disguise he was able to lead his cohort into the house safely after he spoke with an adult female, Jacqueline Green, who answered and unlocked the front door. Inside the house an adult male, Frank Ware, was sitting at a table with two young children; they were eating bowls of chili. Shields found the defendant in a bedroom in the southwest corner of the house. The door to the room was shut, and Shields opened it; his weapon was drawn. The defendant was lying on the bed in a position that enabled him to view a television set, which was on. On the bed with the defendant were a bowl of chili, a .38 caliber revolver, two packs of cigarettes, a television schedule, a small, plastic film container, and several bags of green, leafy material. The film container held yellow pills, blue pills, and several small bags of white powder. Next to the bed was a night stand, and among the things on it were a plastic bag of blue pills and a pill bottle containing yellow pills; the bag and bottle were inside another plastic bag. Assays of these items showed that phencyclidine was present in the white powder and pentazocine in both groups of yellow pills.
Shield's further search of the bedroom turned up shaving gear on the dresser, several pairs of men's shoes on the floor, and women's clothing and a sawed-off shotgun in the closet. Shields also found a traffic ticket that had been issued to the defendant.
According to Green's and the defendant's testimony, he was asleep in the bed while Green placed first the drugs and later the gun beside him, and he did not wake up until Shields entered the room. Green testified that the defendant, who was her boyfriend at that time, arrived at the house sometime in the morning on the day of the search. After playing with Green's two children for awhile he went to sleep in the southwest bedroom. Green had been watching television in that room, and she left the set on even though the defendant was asleep. When the defendant began his nap neither the drugs nor the revolver was present; Green said that the defendant was on parole then and would not have allowed illicit drugs in the house.
Green testified that at about 3 o'clock that afternoon she made an appointment with someone to obtain drugs for a third person. Green left the house, picked up the drugs, and then returned home. She was in the southwest bedroom, preparing to hide the drugs, when one of her daughters ran in and reported that the other child had hurt herself. Interrupted in her task, Green left the drugs on the bed and night stand.
Green explained that the gun that was found next to the defendant had come from a pot in the kitchen. She said that she keeps weapons hidden throughout the house, and that this particular gun turned up in the pot that she was going to use to prepare the chili. She laid the gun next to the defendant on the bed. Later, she took a bowl of chili in to the defendant, who was still asleep. Green was impeached: she pleaded guilty to forgery just the week before she testified, apparently in a plea agreement involving charges from the events here, and in March 1983 she was convicted of misdemeanor theft.
The defendant testified. He said that his residence was in Chicago and that on occasion he stayed overnight with Green at her house in Decatur. The defendant explained that on August 25 he arrived at Green's house at about 1 o'clock in the afternoon. He had come from Chicago that day with Frank Ware, the other man that the police found in the house. The defendant was tired, and on his arrival he retired to the bedroom to rest. He lay on the bed and watched television until he fell asleep. He woke up to find Shields standing in the doorway. The defendant said that he did not notice the bowl of chili when he woke, and that the gun and drugs were not present when he went to sleep. The defendant was impeached with his conviction for attempted burglary, which he had pleaded guilty to in September 1982.
The trial judge found the defendant guilty of the two counts of possession of a controlled substance and the two counts of armed violence. The judge said that he did not believe the defendant's or Green's testimony, and he said specifically that Green's account was incredible and that he had disregarded it entirely. The trial judge later vacated the convictions for the underlying felonies and sentenced the defendant to concurrent 10-year terms of imprisonment for the two convictions for armed violence, Class X felonies here because the defendant was armed with a firearm.
The defendant argues first that the State failed to prove his guilt for the offenses beyond a reasonable doubt. With respect to the controlled substances, the defendant points out that they were found in closed, opaque containers and argues that the State did not prove his knowledge of what those containers held. The defendant also argues that the State failed to prove his possession, actual or constructive, of the drugs, and he emphasizes a number of circumstances that may indicate his innocence: he was merely a visitor in the house, the drugs were not on his person, and he did not grab them or attempt to exercise any control over them when Shields entered the room. With respect to the gun, the defendant argues that the State failed to prove his knowledge of its presence, and he emphasizes that it was not on his person. The defendant also points out that his and Green's testimony went uncontradicted.
• 1, 2 It should be noted at the outset that the version of events related by Green and the defendant went uncontradicted only in the sense that no one else provided direct evidence of what occurred in the bedroom before the search began. The trial judge said that he did not believe their testimony, and he found Green's to be incredible. This was in keeping with the common-sense principle that the trier of fact may reject testimony simply because it is incredible and unbelievable, for "when a defendant elects to explain his presence at the scene of an offense it is incumbent upon him to tell a reasonable story or be judged by its improbabilities. [Citations.]" (People v. Morehead (1970), 45 Ill.2d 326, 330, 259 N.E.2d 8, 10.) This would apply with equal force to the testimony of a witness who is not a party to the action. Thus, the reason for rejecting or disregarding a witness' testimony may be found in the testimony itself rather than in the contradictions posed by conflicting testimony. Its only effect is destructive, however, and it cannot be used to supply deficiencies in the State's case. (People v. Holsapple (1975), 30 Ill. App.3d 976, 333 N.E.2d 683; see People ex rel. Brown v. Baker (1981), 88 Ill.2d 81, 430 N.E.2d 1126.) The burden is on the State to prove every element of the offense beyond a reasonable doubt. In re Winship (1970), 397 U.S. 358, 25 L.Ed.2d 368, 90 S.Ct. 1068.
To sustain the charges of unlawful possession the State was required to prove the defendant's knowledge that the substances were present and his actual or constructive possession of them (People v. Calhoun (1977), 46 Ill. App.3d 691, 361 N.E.2d 55), in addition to the identity of the substances, which is not in dispute here. The substances were found in a film container and a pill bottle, and both of these were opaque and closed. The defendant cites People v. Binns (1975), 27 Ill. App.3d 978, 327 N.E.2d 369, reversing a conviction for possession of cannabis, which the police had discovered in the defendant's apartment in several closed manila envelopes. The appellate court found insufficient evidence that the defendant knew what was in the envelopes. This result rested in part on one unusual, remarkable aspect of the case: the testimony of a 15-year-old neighbor, given in the defendant's behalf, that he had framed the defendant as an act of revenge by planting the envelopes in the apartment and then notifying the police.
• 3 The defendant also argues that the State failed to prove his possession, actual or constructive, of the drugs. He was a visitor in the house, the drugs were only near him, not on his person, and he did not exercise any control or dominion over them. The defendant cites People v. Pugh (1967), 36 Ill.2d 435, 223 N.E.2d 115, which reversed a conviction for possession of narcotics because of insufficient evidence of possession. The defendant there was found lying in bed in a bedroom, and he said that he was a visitor rather than a resident. The narcotics were discovered behind a hinged ...