Appeal from the Circuit Court of Randolph County; the Hon.
Carl H. Becker, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Following a plea of guilty to the offense of unlawful possession of cannabis in an amount exceeding 500 grams (Ill. Rev. Stat. 1981, ch. 56 1/2, par. 704(e)), defendant, Sharon Kane, was placed on 30 months' probation. The State subsequently sought to revoke defendant's probation, alleging that while on probation, she committed the offense of unlawful possession of a controlled substance (codeine) with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(c)). Following a hearing, the court found that the State had proved the allegations of the petition by a preponderance of the evidence and subsequently revoked the defendant's probation and sentenced her to two years' imprisonment.
On appeal, defendant contends that the evidence at the probation revocation hearing did not establish that she had knowingly possessed the codeine with the intent to deliver the same and that, accordingly, the court erred in finding that she had violated the terms of her probation and in revoking her probation. In a supplemental brief, defendant contends that she is entitled to an additional credit of two days on her sentence of imprisonment.
The facts below reveal that on September 21, 1983, an information was filed charging the defendant, jointly with her husband and others, with the September 20, 1983, offense of unlawful possession of more than 500 grams of a substance containing cannabis. On October 3, 1983, the defendant pleaded guilty and was sentenced to a 30-month term of probation and ordered to pay a fine of $750. On August 28, 1984, the State's Attorney filed a petition to revoke defendant's probation, alleging that on June 21, 1984, defendant had possessed a controlled substance (codeine) with the intent to deliver. A hearing was held on September 19, 1984, on the petition to revoke defendant's probation.
Norman L. Mudd, a Randolph County jailer, testified that on the night of June 21, 1984, the defendant brought to the jail a book and a bottle of prescription pills, which she said were for her husband, Kelly Kane, who was then incarcerated in the jail. Mudd told the defendant that the sheriff would have to check the items before they could be given to her husband. Mudd did not inspect the book but put it on his desk and attached a note for the sheriff.
Dean A. Schnoeker, another Randolph County jailer, testified that he came on duty at 7:30 a.m. on June 22, 1984. He was cleaning the cell block when defendant's husband asked him if his wife had brought him a book. Schnoeker saw the book and a note on the desk. Between 9 a.m. and 9:30 a.m., Schnoeker gave the book to the sheriff. The sheriff noticed that the binding at the top of the book was loose, and pulled out a strip of tinfoil about six inches long.
Ardell Currat, the Randolph County sheriff, testified that he examined the book brought by the defendant. He noticed that the top of the binding was tight, while the bottom was loose. He bumped the book a few times, exposing part of a piece of tinfoil. In order to remove the tinfoil, Sheriff Currat cut the binding with a razor blade. He unfolded the tinfoil and found a white powder inside, which he gave to a deputy to take to Desoto for analysis. Currat also examined the container of medication but did not give the medicine to Kelly. Currat explained that the jail policy regarding prescription medicine was that an inmate was only allowed medicine that had been prescribed or approved after he had been jailed. With respect to the defendant's husband, Sheriff Currat related that during the three or four days he was in jail, he did not receive any prescription medication and was only permitted aspirin.
The parties stipulated that Daniel LeCocq, a chemist, would testify that he analyzed the white powder and determined that it weighed .9 grams and contained codeine.
Testifying in her own behalf, defendant told the court that she was married to Kelly Kane and that on June 21, 1984, she visited her husband at 1 p.m. During the visit, defendant's husband requested that she bring him a bottle of prescription drugs and a book entitled, "Audio Encyclopedia, Volume Two." Defendant stated that, in the company of a sister and two brothers, she drove back to her trailer to obtain the book and medicine. The four searched for the book Kelly had requested but were unable to locate it. Finally, according to the defendant's account, the defendant's brother, Robert Whitby, "just picked up a book and handed it to [the defendant] and said, here, this is good enough." Defendant was able to find the medicine bottle, which contained "Emprin [sic] compound, codeine 3." This medicine had been prescribed by a doctor in East St. Louis. Defendant then drove back to the Randolph County jail, where she left the items. Defendant denied knowing that the book contained drugs. On cross-examination, defendant admitted that her husband was addicted to codeine, and that she was aware that no medicine would get to him without a doctor's approval.
Robert Whitby, defendant's brother, testified that on the evening of June 21, 1984, he accompanied the defendant to her trailer, to get a book for the defendant's husband. Whitby described the book as the second volume of some sort of encyclopedia. Whitby related that they were unable to locate the book and eventually, when he grew tired of looking, he decided to take another book instead. As he explained:
"I picked it up and gave it to Sharon and told her to give him, Kelly, the book. I was tired of looking for the other one. We couldn't find it. * * * It was in the back room, the table there, and I just reached out and picked it up. I said, here, just give him this one."
They then drove back to the Randolph County jail. Whitby denied placing the tinfoil in the book.
Kelly Kane, defendant's husband, testified that at about 10 a.m. or 11 a.m. on June 21, 1984, the defendant visited him at the Randolph County jail. At that time he asked defendant to bring him a bottle of prescription medicine, some wrestling magazines, and volume 2 of his Audio Encyclopedia. He stated that he took the medicine, Empirin compound with codeine, because he had "bad knees." Kane identified People's exhibit No. 1 as his digital electronics book. He told the court that he put codeine in a tinfoil packet and placed it inside the binding of this book. He explained that the reason he concealed the drug was because he did not want the defendant to know that he used it. On cross-examination, Kane admitted that he was addicted to codeine. He also admitted that when the defendant saw him in jail, he had been without codeine for three days and was "strung out." He conceded further that defendant knew that he needed codeine. As he put it, "she could tell by looking at me."
The court found that the circumstantial evidence established that the defendant knew that the book contained codeine. The court noted that the defendant was aware that her husband was in need of codeine and that she had seen him earlier that day. The court further observed, in this regard, that the defendant brought her husband a book which he did not request. The court remarked that this did not make ...