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07/18/97 K.A. v. K.A.

July 18, 1997

IN RE K.A., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
K.A., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County. No. 88--J--303. Honorable Steven M. Nash, Judge, Presiding.

Released for Publication August 20, 1997.

The Honorable Justice Colwell delivered the opinion of the court. Thomas and Rathje, JJ., concur.

The opinion of the court was delivered by: Colwell

The Honorable Justice COLWELL delivered the opinion of the court:

The State filed a second supplemental delinquency petition against the respondent, K.A., seeking to have him adjudicated a delinquent minor and made a ward of the court pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/1--1 et seq. (West 1994)). The petition alleged that K.A. had committed the following offenses: unlawful possession of a controlled substance for knowingly and unlawfully possessing less than 15 grams of a substance containing cocaine (720 ILCS 570/402(c) (West 1994)); unlawful delivery of a controlled substance for knowingly and unlawfully possessing with the intent to deliver less than one gram of a substance containing cocaine (720 ILCS 570/401(d) (West 1994)); unlawful possession of a controlled substance for knowingly and unlawfully possessing more than 15 but less than 100 grams of a substance containing cocaine (720 ILCS 570/402(a)(2)(A) (West 1994)); and unlawful delivery of a controlled substance for knowingly and unlawfully possessing with the intent to deliver more than 15 but less than 100 grams of a substance containing cocaine (720 ILCS 570/401(a)(2)(A) (West 1994)). The trial court subsequently issued an order of adjudication finding K.A. to be a delinquent minor for committing the charged offenses and issued a dispositional order revoking K.A.'s probation and committing K.A. to the juvenile division of the Department of Corrections. K.A. appeals.

On appeal, K.A. argues that the evidence was insufficient to find him guilty beyond a reasonable doubt on any of the counts of unlawful possession of a controlled substance and unlawful possession of a controlled substance with the intent to deliver. In addition, K.A. contends that the trial court committed errors during K.A.'s dispositional hearing. We reverse.

Testimony at the adjudicatory hearing revealed the following facts. Detective Joe Vincere testified that at approximately 12:10 p.m. on November 1, 1994, several members of the Rockford police department metro narcotics unit executed a search warrant at 313 South Fourth Street. The building at that address was a two-story dwelling containing three or four apartments. The search warrant was executed in a lower apartment.

Detective Vincere knocked on the rear door of the apartment and announced his office. He received no verbal response but heard some type of movement within. At that point, an officer used a battering ram to force open the door.

Detective Vincere was the first officer to enter the apartment. Detective Vincere immediately observed K.A. and Myron Taylor running in the living room toward the front door. K.A. exited the apartment behind Myron but stopped on command after about 40 yards. Myron continued running, was caught, and was returned to the apartment.

Detective Vincere estimated that, when he first observed K.A. and Myron, they were between one foot to three feet away from a McDonald's box under which cocaine was later discovered and five to six feet away from a closet in which cocaine was later discovered in a hole in the floor. The closet was located between the kitchen and the living room.

Detective Vincere testified that K.A. and Myron told him at the scene that they were visiting the apartment. Detective Vincere also testified that K.A. later told him that Myron had told him to go to the apartment the evening before the raid and that he had arrived at the apartment at about 11:45 a.m. to smoke a joint and listen to some music. K.A. explained that he ran because he was afraid. K.A. denied any knowledge of narcotics within the apartment.

Detective Vincere also testified that no cannabis was recovered in the apartment or on K.A. In addition, Detective Vincere admitted on cross-examination that no scales or cutting agents were recovered and that K.A. did not have a key to the apartment.

Detective Vincere further testified to the condition of the interior of the apartment. The apartment contained some McDonald's boxes in a garbage bag, an empty refrigerator, no furniture, except for a kitchen chair and some cushions, and no clothing. He did not recall observing any type of device to play music. He did not observe any indications that someone was staying in the apartment on a regular basis and no documents were located regarding the tenancy of the apartment.

Detective Vincere also testified that the apartment had been raided on three previous occasions within the last four months. The apartment was also under surveillance earlier in the morning prior to the November 1, 1994, raid. K.A. was never observed on any of the prior occasions or on the morning ...


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