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10/02/89 the People of the State of v. Michael A. Romero

October 2, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL A. ROMERO, DEFENDANT-APPELLANT

MICHAEL A. ROMERO WAS CONVICTED OF UNLAWFUL POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER (ILL. RE

v.

STAT. 1987, CH. 56 1/2, PAR. 1401(A)(2)), AND WAS SENTENCED TO THE ILLINOIS DEPARTMENT OF CORRECTIONS FOR A PERIOD OF 15 YEARS. WE REVERSE, AND REMAND THE CAUSE.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 7, 189 Ill. App. 3d 749, 137 Ill. Dec. 383 1989.IL.1584

Appeal from the Circuit Court of McHenry County; the Hon. Roland A. Herrmann, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. LINDBERG and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

On May 20, 1987, police entered the home of Michael A. Romero (defendant) pursuant to a search warrant. Defendant did not possess any contraband on his person. However, a search of the upstairs loft bathroom produced a toiletry bag containing a bottle of perfume, a toothbrush, an emery board, a sewing kit, a comb, and four plastic bags containing a total of 36.9 grams of white powder, subsequently identified as cocaine. The toiletry bag also contained part of a Deering-type grinder, a glass vial containing cocaine residue, and a "snow blower." The only things protruding from the toiletry bag were the tops of the plastic bags. The white powder was not visible from outside the toiletry bag. Police also found in the bathroom medicine cabinet a small scale covered with white residue.

A search of the room connected with the bathroom revealed an envelope containing $2,400 in cash. Also found on top of a chest of drawers in the room was another part of a Deering grinder and $520 in cash. Police discovered a bottle of Inositol, used to cut or adulterate cocaine, buried under assorted men's and women's clothing in a hamper. Police also seized a handgun and some marijuana.

After the search, defendant was arrested.

At the time of the arrest, Quinn Molenda was living at the Romero home. Molenda's brother, Ralph, was also visiting at the time. On May 19, the day before defendant's arrest, Quinn Molenda was arrested, along with his friends, Bill Balacek and Phillip Corea, for delivery of a controlled substance containing cocaine. Quinn Molenda and Balacek may have been present at the Romero home on the afternoon of May 19, 1987. Also present at the Romero home at various times on May 19 were social friends of the Romeros, Amy Eisenhart and Bob Mears. Mears, who was also doing construction work for the Romeros, possessed a key to the house.

On the day of the trial, a story about the case appeared on pages 1 and 2 of a local newspaper. This story contained information on defendant's two previous arrests for possession of cocaine and marijuana. It also reported that a handgun and marijuana were found in defendant's house. The trial court had previously suppressed all these facts via an order in limine. Reports on the case had also been broadcast on the radio. Defense counsel moved to have the jury questioned to determine if any of the jurors had read the story. The court denied the motion.

During the trial, the court heard contradictory testimony as to the living arrangements in the Romero house. Prosecution witnesses testified that there was no evidence that the Romeros slept on the first floor of the house. Police officers testified that they only saw a crib in the first-floor bedroom. They did find men's and women's clothing in the loft room, as well as a dresser containing socks, a watch, a wallet, and a wedding picture of the Romeros. Defense witnesses testified that the first-floor bedroom contained a bed. A closet containing men's suits was also located on the first floor. There was no dispute regarding the fact that Quinn and Ralph Molenda slept in the basement of the house.

One of the prosecution witnesses was Bill Balacek. Balacek testified that, while riding to the police station and again in a jail cell, defendant told him that either Balacek or Molenda would "have to take the fall . . . [and] say that we had access to the bathroom." However, an affidavit prepared by Balacek's lawyer before trial contained no mention of the incident in the jail cell. Balacek also testified that defendant promised to obtain a lawyer for Balacek, and that attorney Timothy McNamee did visit him in jail. However, jail records did not show any visit by McNamee.

At the time of his testimony, Balacek was out of jail on bond, facing four indictments for delivery of controlled substance, including one Class X felony. He testified that he had not discussed the topic of obtaining leniency in exchange for his testimony and had no expectation of receiving it.

On cross-examination, Balacek admitted that his affidavit attached to his motion to reduce bond contained a false statement. He swore falsely that his driver's license had never been suspended or revoked. He testified that the affidavit had been prepared by his attorney and that he signed it without reading it first.

Defendant did not testify at trial. Prosecution, in its closing argument, asserted that the alleged conversations between defendant and Balacek were uncontradicted and unrebutted. Defendant objected, but the court overruled the objection, stating that the jury had heard the evidence of the conversations., Defendant was convicted and sentenced to the Illinois Department of Corrections for 15 years. It is from this conviction that defendant appeals., Defendant's first contention is that the evidence is insufficient to sustain his conviction. We disagree.

To prove one guilty of possession of controlled substances (drugs), the State must establish knowledge on the part of the defendant of the presence of the drugs and that the drugs were in defendant's immediate and exclusive control. (People v. Embry (1960), 20 Ill. 2d 331, 334; People v. Birge (1985), 137 Ill. App. 3d 781, 790.) Since possession may be constructive, actual physical possession by the defendant is not required. (People v. Galloway (1963), 28 Ill. 2d 355, 358; Birge, 137 Ill. App. 3d at 790.) As it is difficult to prove directly that defendant had knowledge of the presence of drugs, this element may be proved by "evidence of acts, declarations or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of the narcotics at the place where they were found." (Embry, 20 Ill. 2d at 334.) If it is shown that defendant controls the premises, an inference of both knowledge and possession by defendant arises which may be sufficient to sustain a guilty verdict, absent other facts and circumstances which might raise a reasonable doubt as to guilt. (People v. Nettles (1961), 23 Ill. 2d 306, 308-09; People v. Luetkemeyer (1979), 74 Ill. App. 3d 708, 713.) Mere access by other persons is no defense, as defendant's possession may be joint with another. (Birge, 137 Ill. App. 3d at 790.) Finally, whether or not defendant had knowledge and possession is a question of fact, and the findings of the trier of fact will not be reversed unless the evidence is so palpably contrary to the verdict, or so improbable as to create a reasonable doubt of guilt. Galloway, 28 Ill. 2d at 358; Birge, 137 Ill. App. 3d at 791.

Our review of the evidence fails to reveal such contrary or improbable evidence. Defendant was co-owner of the house in which the cocaine was found and was living in the house at the time of the search. Evidence that the drugs were found at the same address as that at which defendant lives supports the conviction for constructive possession. (Galloway, 28 Ill. 2d at 359-60; Birge, 137 Ill. App. 3d at 791.) Also supporting the conviction was the testimony, though contradicted, of the living arrangements at the Romero home. Ralph Molenda, who was living at the Romero home at the time of the search, testified that defendant and his wife slept in the upstairs loft bedroom, which was next to the bathroom in which the cocaine was found. That bedroom was also the room in which the two piles of cash, part of a grinder, and the bottle of Inositol were found. Molenda also testified that he was instructed by the Romeros to use the downstairs bathroom instead of the upstairs bathroom. This testimony is further corroborated by the fact that men's and women's clothing, both clean and dirty, were found in the upstairs bedroom.

It is true that others may have had access to the loft rooms. We infer that defendant's wife had the run of the house. The Molendas, although allegedly directed not to use the loft, lived in the basement. There was disputed testimony as to whether or not Bill Balacek was seen in the loft. Bob Mears, who testified to Balacek's presence, himself had a key to the Romero house and had access while the Romeros were not at home. However, access by others does not preclude a finding of possession. (Nettles, 23 Ill. 2d at 308.) Defendants have even been found in possession of drugs discovered in abodes in which they lived only part time. (See Galloway, 28 Ill. 2d 355; Birge, 137 Ill. App. 3d 781; Luetkemeyer, 74 Ill. App. 3d 708.) We do not find a ...


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