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February 13, 1996



The Honorable Justice Scariano delivered the opinion of the court: Hartman, P.j., and Burke, J., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the court:

On September 11, 1990, Officer Bruce Kading, special agent with the United States Immigration and Naturalization Service drug task force, acting undercover, made arrangements to purchase five ounces of cocaine from Jose Colon for $5,000. At about 2:00 p.m. that day, Kading went to 808 North Western Avenue in Chicago, the prearranged meeting place, and parked his undercover car on the west side of the street facing South. From twenty feet away, Kading noticed two women, defendant Carmen Martinez *fn1 and Wanda Flores, standing with Colon in front of an ice cream store located at 808 North Western Ave. Colon approached Kading's vehicle and told him that the person who was bringing the cocaine would be there in fifteen minutes. Colon then returned to the front of the store and rejoined defendant and Flores. According to Kading, the three appeared to be talking.

At 2:15, Kading saw defendant remove a piece of paper from her purse and give it to Flores. Both Kading and Frank Guerra, another surveillance officer, testified that Flores took the paper and walked south on Western Avenue toward the Lighthouse, a restaurant. The parties stipulated that a telephone call was made from co-conspirator Ramon Otero's mobile phone to the Lighthouse restaurant at 2:17 p.m..

A few minutes later, Flores returned to the ice cream store where Colon and defendant were standing and apparently conversing. After Kading had waived Colon over to his car, Colon told him that the source would arrive in five minutes. Flores also approached Kading's car and told him that she had just talked to the source on the car phone, and that he was somewhere north and would be arriving in five minutes. Colon and Flores then returned to the front of the store.

Five minutes later, defendant, carrying only a small black purse, walked to the corner of Chicago and Western and entered a grey Cadillac driven by Otero. The car turned east on Chicago Ave, circled the block, and parked at the gas station on the corner of Rice and Western where undercover surveillance agent Kenneth R. Burkhart was also parked. From fifteen feet away, Agent Burkhart saw defendant get out of the Cadillac holding her black purse. She then reached into the car and pulled out a brown paper bag, a bit smaller than a grocery bag, but larger than her purse. Defendant left the vicinity of the gas station and walked across the street to just north of 808 North Western Ave, where she met Colon, and handed him the bag. Colon and defendant walked over to Kading's car, and Colon entered the passenger section with the brown paper bag. Defendant crouched beside Kading's passenger car door and looked on as Kading and Colon completed their drug transaction. Colon removed five wrapped bags containing cocaine from the brown paper bag, and after Kading paid Colon, Kading signaled to the surveillance officers in the area and Otero, Colon, Flores, and defendant were arrested. No fingerprints were taken from the brown bag.

Defendant was found guilty of unlawfully and knowingly delivering a controlled substance (specifically, over 100 grams of cocaine) in violation of chapter 56-1/2, section 1401-A-2-B of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(B)(West 1994)) on an accountability theory, conviction of which constitutes a Class Super X Felony and carries a minimum sentence of nine years imprisonment. Prior to sentencing, however, the trial judge took into consideration that Colon received only six years, and, deciding that it was not fair to award a longer sentence to defendant, he sentenced her to six years under the lesser included offense of possession of a controlled substance. However, on motion of the State, the supreme court issued a supervisory order requiring the trial judge to vacate the six year sentence, and to impose one based on the conviction of delivery of a controlled substance. Pursuant to that order, the trial judge sentenced defendant to nine years in the custody of the Department of Corrections and fined her $2,500.

Defendant appeals, claiming (1) that the trial court erred in finding her guilty beyond a reasonable doubt; (2) that it also erred in admitting hearsay statements under the co-conspirator hearsay exception; (3) that her constitutional right against double jeopardy was violated when the trial court resentenced her pursuant to a supreme court order, and (4) that she was denied her statutory right to five dollars a day credit against her fine.

Whether the evidence is sufficient to sustain a conviction on appeal is determined by whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781; People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267, 87 Ill. Dec. 910, cert. denied (1985), 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267.

To sustain a conviction for delivery of a controlled substance on the basis of accountability, the State must establish the following beyond a reasonable doubt:

"(1) the defendant solicited, ordered, abetted, agreed or attempted to aid another in the planning or commission of the delivery; (2) the defendant's participation took place before or during the commission of the delivery, and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the offense." ( People v. Deatherage (1984), 122 Ill. App. 3d 620, 624, 461 N.E.2d 631, 78 Ill. Dec. 47 (See Illinois Criminal Code of 1961 (720 ILCS 5/5-2 (West 1994)) (formerly Ill. Rev. Stat. 1981, ch. 38 para. 5-2).)

Mere presence at the scene of a crime and knowledge that a crime is being committed are not alone sufficient to establish guilt on an accountability theory. ( People v. Evans (1981), 87 Ill. 2d 77, 429 N.E.2d 520, 57 Ill. Dec. 622.) However, a fact finder may infer a defendant's accountability from her approving presence at the scene of the crime ( Roppo, 234 Ill. App. 3d at 126, 599 N.E.2d 974) and from evidence of conduct showing a design on defendant's part to aid in the offense. People v. Schlig (1983), 120 Ill. App. 3d 561, 458 N.E.2d 544, 76 Ill. Dec. 144.

Defendant, citing Deatherage, argues that there was insufficient evidence to find her guilty. In Deatherage, there was evidence that defendant was present during the drug transaction, that he may have known about it, and that he answered a question about the price of drugs, but the court held that it was not enough to sustain an unlawful delivery conviction on a theory of accountability. ( Deatherage, 122 Ill. App. 3d at 623-624, 461 N.E.2d 631.) In contrast to Deatherage, however, defendant here, as the ...

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