Appeal from the Circuit Court of Williamson County; the Hon.
Snyder Howell, Judge, presiding.
JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant, Ronald Evans, appeals from his convictions for unlawful possession of a controlled substance and unlawful possession of a controlled substance with intent to deliver after a jury trial in the circuit court of Williamson County.
At approximately 9 a.m. on March 22, 1984, Freida Marks, a housekeeper employed at the Holiday Inn in Marion, observed a man, whom she later identified as defendant, across the motel driveway digging underneath a tree for about one hour. At 3 p.m. that same day Marks and a fellow employee, Lewis Mobley, went to the spot where defendant had been digging and uncovered a plastic bag containing smaller plastic bags filled with a white powdery substance. These bags were later found to contain 35.1 grams of a substance containing cocaine. Marks and Mobley gave the cocaine to an assistant manager who put the cocaine in the motel safe. The assistant manager turned the cocaine over to Detective Roger Odom who, at 3:30 p.m., returned the bag to the spot where it had been found and reburied it. The area was placed under surveillance until 5:30 a.m. the next morning to no avail and the bag was reconfiscated.
On March 29, 1984, Marks and Mobley again observed defendant at the motel, accompanied by a female. Defendant returned to the area where he had been observed the week before and began digging. Larry Vanway, a security guard at the motel, testified that he had a conversation with defendant in which defendant inquired about construction work. Defendant returned to his car and had a discussion with the female. Defendant paced up and down the parking lot and then began digging underneath the tree again. The female got out of the car and helped defendant dig. The two returned to the car, and, as they were leaving the parking lot, were arrested. A broken garden trowel was found underneath the tree and a similar trowel was later found during an inventory search of the car.
Defendant was convicted by a jury of unlawful possession of a controlled substance (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1402(a)(2)) and unlawful possession with intent to deliver (Ill. Rev. Stat. 1983, ch. 56 1/2, par. 1401(a)(2)). Defendant was sentenced on the latter charge to 25 years' imprisonment, and a $3,500 "street value fine" was imposed. Ill. Rev. Stat. 1983, ch. 38, par. 1005-9-1.1.
Defendant raises five issues on appeal: (1) whether the State failed to prove beyond a reasonable doubt that defendant was in possession of cocaine; (2) whether the 25-year sentence is excessive and an abuse of the trial court's discretion; (3) whether the statute authorizing a "street value fine" is unconstitutionally vague; (4) whether defendant is entitled to a $1,005 credit toward his fine for jail time served prior to sentencing; and (5) whether the trial court erred in failing to appoint new counsel for defendant.
• 1 Defendant's initial contention is that the State failed to prove beyond a reasonable doubt that defendant knowingly possessed the cocaine in question. The State responds that, although cocaine was not found on defendant's person and there was no eyewitness testimony of defendant actually physically possessing the cocaine, possession was proved by strong circumstantial evidence sufficient for the jury to find defendant guilty beyond a reasonable doubt.
To sustain a conviction for unlawful possession of a controlled substance, the State must prove that defendant had knowledge of the presence of the cocaine and that the cocaine was in defendant's immediate possession and control. (People v. Matthews (1960), 18 Ill.2d 164, 170, 163 N.E.2d 469, 472.) Possession may be actual, requiring an act of physical dominion over the cocaine (People v. Briggs (1983), 112 Ill. App.3d 979, 981, 446 N.E.2d 305, 307), or constructive, which may be inferred from defendant's exclusive control of the premises where the controlled substance is found. (People v. Hester (1980), 87 Ill. App.3d 50, 53, 409 N.E.2d 106, 108-09.) Where possession is proved, the element of knowledge may be inferred from the surrounding facts and circumstances. (People v. Jackson (1961), 23 Ill.2d 360, 365, 178 N.E.2d 320, 322.) Both knowledge and possession may be proved by circumstantial evidence (People v. Stewart (1975), 27 Ill. App.3d 520, 523, 327 N.E.2d 287, 289); however, suspicion, no matter how strong, is insufficient to establish the elements of unlawful possession. (People v. Evans (1966), 72 Ill. App.2d 146, 149, 218 N.E.2d 781, 782-83.) Lastly, whether the requisite elements have been proved are questions for the trier of fact, and its findings will not be disturbed on review unless the evidence is patently contrary to the verdict or so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. People v. Galloway (1963), 28 Ill.2d 355, 358, 192 N.E.2d 370, 372, cert. denied (1964), 376 U.S. 910, 11 L.Ed.2d 608, 84 S.Ct. 665.
As defendant correctly points out, the doctrine of constructive possession is not at issue in this case. The State does not contend otherwise, but asserts that the circumstantial evidence presented is sufficient to prove defendant's actual physical possession of the cocaine on March 22. Defendant relies on three principal cases to demonstrate the infirmity of his conviction. In all three of these cases the defendants were convicted of unlawful possession of a controlled substance, yet none of these defendants were ever directly observed exerting control over the substance in question.
In People v. Jackson (1961), 23 Ill.2d 360, 178 N.E.2d 320, defendant locked herself in her bathroom, which had a window opening upon an airwell, and was arrested after police located a package containing narcotics at the bottom of the airwell amongst other debris. Seven other apartments had access to the airwell. (23 Ill.2d 360, 361-62, 178 N.E.2d 320, 321.) The court held that the State failed to meet its burden of showing that defendant had exercised some actual or potential dominion over the narcotics and reversed her conviction. 23 Ill.2d 360, 365, 178 N.E.2d 320, 322.
In People v. Evans (1966), 72 Ill. App.2d 146, 218 N.E.2d 781, police approached defendant in a tavern after being informed that he possessed narcotics. When defendant and his companion saw the police approaching they hurried to the restroom. (72 Ill. App.2d 146, 147, 218 N.E.2d 781, 782.) No narcotics were found on either man, but two cigarette packages containing narcotics were found stuck underneath the bar with chewing gum. (72 Ill.2d 146, 147, 218 N.E.2d 781, 782.) There was no evidence that anyone saw either man put the packages there. (72 Ill. App.2d 146, 147, 218 N.E.2d 781, 782.) The court, relying on Jackson, found defendant's behavior suspicious, but insufficient to establish possession. 72 Ill. App.2d 146, 149, 218 N.E.2d 781, 782-83.
In People v. Stewart (1975), 27 Ill. App.3d 520, 327 N.E.2d 287, three witnesses observed defendant leave his car in a well-lighted portion of the parking lot, stoop over, return to his car and then drive away. A bag of marijuana was discovered where defendant had bent over. (27 Ill. App.3d 520, 522, 327 N.E.2d 287, 289.) The court held that the inference of possession was too weak to remove all reasonable doubt of defendant's guilt. 27 Ill. App.3d 520, 525, 327 N.E.2d 287, 291.
• 2, 3 We believe that the circumstantial evidence presented in the instant case provides a stronger inference of possession than that in the cases relied upon by defendant. Proof beyond a reasonable doubt does not require the exclusion of every possible doubt, and a conviction may be sustained upon wholly circumstantial evidence where the entire chain of circumstances leads to a reasonable and moral certainty that the defendant committed the crime. (People v. Williams (1977), 66 Ill.2d 478, 484-85, 363 N.E.2d 801, 804.) Unlike the cases discussed above, defendant was seen twice at the precise area where the cocaine was found. Also, while the cocaine was found in a public area, as in the above cases, access by others to the place where the cocaine was found cannot be contemplated as reasonably as was access by others to the airwell, parking lot or tavern. The possibility that the cocaine was there before defendant arrived must be viewed in light of all the evidence presented. Freida Marks testified that the hole was carefully filled and patted down suggesting that, on March 22, defendant was not merely looking for the cocaine and failed to find it. Marks also stated that, except for her morning coffee break and lunch break, she watched the area until 3 p.m. when the cocaine was found, which could reasonably lead to the conclusion that someone else had not buried the cocaine between 9 a.m. and 3 p.m. Anita Swift, defendant's companion on the day he was apprehended, testified that defendant told her that he was going to the Holiday Inn to look for something. When she asked defendant if she could help him, he told her that, "You don't want to get involved." Swift also testified that when the police cars approached, defendant remarked, "God, there's the police," although the police cars were unmarked. A garden trowel, similar to one found at the site, was found in the car defendant was driving. The jury could certainly find defendant's contention that he was just digging a hole and someone else happened to bury cocaine in that same hole later that day implausible. Moreover, regardless of whether defendant buried the cocaine originally or dug it up and reburied it, the jury could find that defendant had knowledge of and control over the cocaine on the morning of March 22.
• 4 Actual possession is proved by evidence which establishes that defendant exercised some actual or potential dominion over the controlled substance. (People v. Jackson (1961), 23 Ill.2d 360, 365, 178 N.E.2d 320, 322.) The act of dominion may be defendant's attempt to conceal the substance. (People v. Howard (1975), 29 Ill. App.3d 387, 389, 330 N.E.2d 262, 264.) The jury was free to reject defendant's explanations, and we see no reason to interfere with its determination, for we are convinced that the ...