APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
539 N.E.2d 261, 183 Ill. App. 3d 571, 131 Ill. Dec. 908 1989.IL.708
Appeal from the Circuit Court of Cook County; the Hon. Themis N. Karnezis, Judge, presiding.
JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN
After a joint bench trial Lisa Valen (defendant) and Neal Logue (codefendant) were found guilty on information number 87-CR-405 of possession of more than 30 grams of a controlled substance with the intent to deliver and delivery of more than 30 grams of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(a)(2).) Codefendant was also found guilty on information number 87-CR-406 of delivery of a controlled substance. (Ill. Rev. Stat. 1985, ch. 56 1/2, par. 1401(b)(2).) Defendant was sentenced to two concurrent terms of six years' imprisonment and co-defendant was sentenced to three concurrent terms of six years' imprisonment. Both appeal from their convictions and their appeals have been consolidated.
Defendant contends that she was not proven guilty of the offenses beyond a reasonable doubt because the evidence adduced at trial was insufficient to show that she participated in the delivery or exerted control over the contraband. Co-defendant contends that he was not proven guilty beyond a reasonable doubt because there was insufficient evidence that a delivery took place or that the weight of the controlled substance exceeded 30 grams. Co-defendant also contends that the trial court erred by finding him guilty of both the delivery and possession charges when his conduct constituted a single offense.
Both defendant and co-defendant were charged by information number 87 -- CR -- 406 with calculated criminal drug conspiracy and delivery of a controlled substance based on the events occurring on November 24, 1986, and by information 87 -- CR -- 405 with calculated criminal drug conspiracy, delivery of more than 30 grams of a controlled substance and possession of more than 30 grams of a controlled substance with intent to deliver based on the events occurring on November 25, 1986. At trial Chicago police officer Curtis Scherr testified that while working in an undercover capacity on November 24, 1986, he contacted Eugene Boerema regarding the possible purchase of one ounce of cocaine. *fn1 Later that day Scherr met Boerema at Boerema's apartment at 4048 West 63rd Street to make the purchase. It was at this apartment that Scherr first saw defendant and codefendant. Scherr testified that Boerema introduced him to codefendant, who was standing in the doorway to the kitchen. Then Boerema brought a mirror, scales and plastic bag containing a white "brick" of cocaine from a bedroom to the dining room table. There Boerema cut off a portion from the "brick," weighed it on the scales and asked Scherr if it "looked alright." During this time defendant walked around the room and the dining room table while codefendant remained in the kitchen doorway.
Scherr testified that he paid Boerema the agreed price of $1,400 and that Boerema counted the money. He then passed it to codefendant, who again counted it while he walked into the bedroom. Boerema packaged the ounce of cocaine and Scherr left. Scherr then met with his surveillance team, returned to the police station and processed the contraband he received.
Still later that same day Scherr had several telephone conversations with Boerema and co-defendant regarding a possible second purchase. Scherr testified that Boerema told him that he could procure any amount of cocaine Scherr needed. Scherr then made arrangements to purchase 10 ounces of cocaine the following day.
On November 25, 1986, Scherr arrived at Boerema's apartment between noon and 1 p.m. to make the second cocaine purchase. Boerema, defendant and co-defendant were present, but he was told that the cocaine was not yet available. Scherr then left the apartment and told Boerema to page him when the contraband was available. During that afternoon Scherr made several telephone calls to Boerema's apartment. The first telephone conversation was with Boerema, who stated that the "produce" was still not available. The second telephone conversation was with codefendant, who confirmed that the "stuff" was not there yet. Codefendant also told Scherr at this time that Boerema was a "nice guy" but "a little soft." Co-defendant told Scherr that he (codefendant) was the "main guy" and that Scherr should deal directly with him.
Scherr then had two telephone conversations with defendant. In both conversations defendant told Scherr that Boerema and codefendant were not there. When Scherr expressed concern that the deal was taking too long, she told him to "be patient" and "hang in there" because they would soon bring his purchase. In the second telephone conversation with defendant, Scherr told defendant that his patience was gone, and he was not going to go through with the deal. Within 10 minutes of this telephone conversation Boerema paged Scherr and told him that his merchandise had arrived.
Scherr and his partner, Detective Thomas Keough, then proceeded to the Boerema apartment. It was about 5:30 p.m. on November 25, 1986, when Scherr again entered Boerema's apartment. Both defendant and codefendant were present in the apartment along with Boerema. Defendant stayed in the dining room near Boerema, while co-defendant stood near the kitchen doorway. On the dining room table was a scale containing a large chunk or "brick" of cocaine. Boerema again asked Scherr if the weight "looked alright." Scherr agreed and then told Boerema to come outside to get the money from his partner. Boerema then instructed co-defendant to package the cocaine on the scale as he stepped outside with Scherr.
Outside the apartment Boerema entered Scherr's vehicle and met his partner Detective Keough. Keough turned over $12,500 of DEA funds to Boerema. But as Boerema counted the money he was informed that he was under arrest. Boerema was advised of his rights and informed that there was a search warrant for his apartment. Scherr and the entire surveillance team then accompanied Boerema back into the apartment, searched the premises and arrested defendant and codefendant. As Scherr entered the apartment, he observed co-defendant sliding ...