Appeal from Circuit Court of Adams County. No. 93CF302. Honorable Dennis K. Cashman, Judge Presiding.
Released for Publication March 1, 1996. Petition for Leave to Appeal Denied April 3, 1996.
Justices: Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring
The opinion of the court was delivered by: Garman
The Honorable Justice GARMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Adams County, defendant Nathaniel Parker, Sr., was convicted of unlawful possession of a controlled substance (720 ILCS 570/402 (West 1992)) and permitting the unlawful use of a building (720 ILCS 570/406.1 (West 1992)). The court sentenced him to four years' imprisonment on each count, with the sentences to run concurrently. Defendant now appeals his conviction for permitting the unlawful use of a building, arguing the statute is unconstitutional and he was not proved guilty beyond a reasonable doubt. We affirm defendant's conviction.
In the late evening hours of September 14, 1993, members of the police department conducted a drug raid at a residence located at 832 North 11th Street in Quincy, Illinois. Defendant was present at the time, along with his girlfriend, Holly Scott, their two children, and several other people, including Eddie McKee. A pat-down search of defendant revealed a homemade pipe in his front pants pocket used for smoking crack cocaine. In what appeared to be a child's bedroom, police discovered eight small bags of cocaine hidden in a mattress. The police also discovered several pieces of mail addressed to defendant at 832 North 11th Street.
Defendant and Scott were arrested and charged with unlawful possession of a controlled substance and permitting the unlawful use of a building. Holly entered into a plea agreement with the State in which she pleaded guilty to permitting the unlawful use of a building in exchange for her testimony at defendant's trial. Defendant's trial was held on March 17, 1994.
At trial, Holly testified that defendant lived with her at 832 North 11th Street on the date of the drug raid. She also stated that her grandparents owned the home and rented it to her. She was responsible for paying the rent, while defendant worked for her grandfather's plumbing business to pay for the utilities. Holly also testified that Eddie McKee began living at the house about three weeks before the raid. McKee sold drugs out of the house and provided Holly and defendant with drugs in exchange for staying there. However, McKee stopped supplying defendant with drugs after a week, but continued to provide them to Holly. Defendant became upset with McKee and wanted him to leave. Holly stated that she also wanted McKee out of the house. Nonetheless, McKee continued to stay at the house and sell drugs.
On cross-examination, Holly testified that defendant moved many of his personal belongings out of the house prior to the drug raid. However, on redirect examination, Holly stated that defendant continued to stay at the house and received his mail there, even after moving his belongings out. In her opinion, the residence at 832 North 11th Street continued to be defendant's home.
Deputy sheriff Randy Johnson testified that he interviewed defendant after his arrest. Defendant told him that McKee had been staying at the house to deal crack cocaine. In addition, defendant told Deputy Johnson that he did not live at the house, but stayed there occasionally. However, defendant also stated that he and Holly received drugs in return for allowing McKee to stay at the house and sell drugs.
Defendant testified at trial that he had moved from the residence at 832 North 11th Street one or two months before the drug raid and lived with his cousin, Marion French. He stated that he came over occasionally to help out with the children and saw McKee at the residence, although he was not aware McKee was living there. Further, he had no control or authority to tell people to leave. However, defendant also testified that he had previously ordered several people to leave the house. On cross-examination, defendant admitted that not only did he ask Holly to throw McKee out, he personally told McKee to leave. In addition, defendant received his mail at 832 North 11th Street.
The jury found defendant guilty on both counts, and the trial court sentenced him to concurrent terms of four years' imprisonment on each count. His timely appeal followed.
On appeal, defendant challenges his conviction for unlawful use of a building, contending (1) the statute is unconstitutionally vague; (2) the statute is unconstitutional because it is overly broad and punishes innocent conduct; (3) the statute is unconstitutional because it violates the prohibition against ...