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03/18/96 PEOPLE STATE ILLINOIS v. CHARLES L. NIXON

March 18, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CHARLES L. NIXON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. No. 94-CF-366. Honorable John Donald O'Shea, Judge Presiding.

Released for Publication April 22, 1996.

Present - Honorable William E. Holdridge, Presiding Justice, Honorable Michael P. McCUSKEY, Justice, Honorable Kent Slater, Justice. Holdridge, P.j., and Slater, J., concur.

The opinion of the court was delivered by: Mccuskey

JUSTICE McCUSKEY delivered the opinion of the court:

Following a jury trial, the defendant, Charles Nixon, was convicted of possession with intent to deliver more than 1 but less than 15 grams of a substance containing cocaine, a Class 1 felony (720 ILCS 570/401(c)(2) (West 1994)). The defendant was sentenced to a term of four years' imprisonment and was ordered to pay a $600 street value fine and a $2,000 drug assessment fee.

On appeal, the defendant argues that: (1) the evidence was insufficient to prove possession with intent to deliver; (2) the $600 street value fine should be reduced; (3) the $2,000 drug assessment fee should be vacated; and (4) he should be given a $355 credit against his fine for 71 days of pretrial custody.

After carefully reviewing the record, we find the evidence was not sufficient to prove beyond a reasonable doubt that the defendant possessed a controlled substance with intent to deliver. Accordingly, we reverse the defendant's conviction and reduce it to the lesser included offense of unlawful possession of less than 15 grams of a substance containing cocaine, a Class 4 felony (720 ILCS 570/402(c) (West 1994)). As a consequence, we remand the case to the circuit court of Rock Island County for a new sentencing hearing. On remand, the street value fine of $600 may be reimposed. Additionally, the mandatory drug assessment fee must be reduced to $500, and the defendant must be given a credit of $355 against his fine.

FACTS

On May 19, 1994, a search warrant was executed at a residence in East Moline. All of the individuals found in the residence were taken to the police station. Officer Thomas Reagan transported the defendant and Kenyan Helm in the back seat of his squad car. Reagan testified that he found nothing in the vehicle when he examined the back seat prior to transporting the defendant and Helm. Helm was the target of the search and was also named in the search warrant. He was strip-searched prior to being placed in Reagan's vehicle. After the defendant and Helm exited the vehicle, Officer Reagan again searched the vehicle and found a clear plastic baggy containing a white powdery substance. Reagan found the baggy stuck up behind the back seat where the defendant had been sitting.

Officer Victor Moreno testified that the baggy weighed 6.6 grams. The white powdery substance was packaged in four separate packets. A forensic scientist stated that she tested one of the packets. She said it weighed 2.2 grams and contained cocaine. Several witnesses testified that the street value of a gram of cocaine was between $100 to $125. Moreno said the street value of 6.6 grams of cocaine was in excess of $600.

Officer Moreno testified he had been assigned to the narcotics task force for less than one year. He stated that a normal amount of cocaine for personal use was two or three grams. The officer said that possession of more than that amount generally indicated the person was selling drugs.

Officer Jeffrey Boyd testified he had worked in narcotics and contraband intervention for about two years. Boyd said the normal amount of cocaine for personal or recreational use was 1.7 to 2.4 grams or less.

Officer Mark Hanna testified he had been assigned to the narcotics task force for almost two years. Hanna said that possession of less than two grams of cocaine indicated personal use.

Based on this testimony, the jury found the defendant guilty of possession of a controlled substance with intent to deliver. Following sentencing, the ...


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