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November 26, 1997


Appeal from the Circuit Court of Cook County. Honorable Daniel J. Kelly, Judge Presiding.

Released for Publication January 22, 1998.

The Honorable Justice Leavitt delivered the opinion of the court Cousins, J., and Cahill, J., concur.

The opinion of the court was delivered by: Leavitt

The Honorable Justice LEAVITT delivered the opinion of the court:

Defendant Jose Rivera was charged with possession of a controlled substance with intent to deliver in violation of section 401 of the Illinois Controlled Substances Act (720 ILCS 570/401(a)(2)(A) (West 1992)). Following a bench trial, defendant was convicted and sentenced to eight years' imprisonment, to run consecutively with another conviction. In these consolidated cases, defendant appeals from his conviction and sentence and the denial of his petition for post-conviction relief.

On appeal, the parties agree as to the relevant facts in this case. Chicago police officer Dennis O'Shea was working narcotics surveillance on July 31, 1993. A tip had been received from a confidential informant, who related that a drug transaction was to take place in the 400 block of West Dickens in Chicago. Upon arriving at that location, O'Shea observed defendant talking with another individual, Reynaldo Moctezuma. Moctezuma handed defendant a small plastic bag. O'Shea did not observe money change hands.

When O'Shea approached, defendant threw the bag he had been given into the gutter. O'Shea recovered a golf ball-sized object, which he suspected contained cocaine. It was stipulated at trial that the bag was found to contain 26.8 grams (slightly less than an ounce) of cocaine. O'Shea estimated an ounce of cocaine sold for $850 to $1,100 on the street. (We note that both parties, in their appellate briefs, refer to the recovered cocaine as having a total weight of 28.6 grams. However, the stipulation at trial was that the weight of the cocaine was 26.8 grams. We assume the stipulation to be accurate, and we will refer to the quantity of recovered cocaine as 26.8 grams for purposes of this appeal.)

The trial judge found defendant guilty of possession with intent to distribute, though he noted the evidence of intent to deliver was "not so clear." Addressing the fact that no money had been exchanged between defendant and Moctezuma, the trial judge reasoned that "people who are in the higher echelons of this type of business don't require their mules or their sellers to pay them in advance for what they take out to sell." He considered the amount of cocaine involved (slightly less than an ounce) as proof that defendant did not possess the cocaine for personal consumption, although he remarked that it has been held "in some cases that the mere possession of an amount such as that [in this case] is not sufficient to show intent to deliver."

On appeal, defendant does not challenge the trial court's finding that he possessed the cocaine recovered by O'Shea. Rather, he argues the State failed to introduce evidence sufficient to support a finding that he intended to distribute the cocaine. We agree.

In reviewing defendant's conviction, we must ask whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have concluded beyond a reasonable doubt that defendant intended to deliver the cocaine given to him by Moctezuma. See People v. Robinson, 167 Ill. 2d 397, 407, 657 N.E.2d 1020, 212 Ill. Dec. 675 (1995); People v. Nixon, 278 Ill. App. 3d 453, 457, 663 N.E.2d 66, 215 Ill. Dec. 316 (1996). Since direct evidence of intent to deliver is rare, such intent is usually proved by circumstantial evidence. Robinson, 167 Ill. 2d at 408; People v. Jones, 286 Ill. App. 3d 777, 784, 676 N.E.2d 1335, 222 Ill. Dec. 131 (1997); People v. Clemons, 277 Ill. App. 3d 911, 923, 661 N.E.2d 476, 214 Ill. Dec. 622 (1996). A variety of factors are indicative of intent to deliver, such as: (1) whether the quantity of the controlled substance possessed is too large to be viewed as being for personal consumption; (2) the high purity of the drug confiscated; (3) possession of weapons; (4) possession of large amounts of cash; (5) possession of police scanners, beepers or cellular telephones; (6) possession of drug paraphernalia; and (7) the manner in which the substance is packaged. Robinson, 167 Ill. 2d at 408; Nixon, 278 Ill. App. 3d at 457; People v. Beverly, 278 Ill. App. 3d 794, 799, 663 N.E.2d 1061, 215 Ill. Dec. 547 (1996).

None of the above indicia of intent to deliver are present here. No evidence was introduced that the cocaine possessed by defendant was of high purity and therefore likely to be "cut" or diluted for sale on the street (in fact, there was no evidence whatsoever as to the purity of the cocaine). No weapons were found in defendant's possession. No amounts of cash were recovered from defendant and inventoried. He was not found in possession of a police scanner, beeper, or cellular telephone, and no paraphernalia associated with the selling of cocaine was recovered. The packaging of the cocaine in this case (one package as opposed to many) does not evidence an intent to deliver.

As evidence of intent to deliver, the State points out "the trier of fact could consider that police received word of a potential drug exchange occurring at a particular time and place, police witnessed a drug exchange, as expected, and no money was exchanged at the same time." We fail to see how the transaction observed by police in the present case supports a finding that defendant possessed the cocaine with the intent to distribute it. Defendant was observed receiving cocaine, not selling it. The fact that defendant was observed being handed cocaine supports only a finding of simple possession, given the absence of other indicia of an intent to distribute. The trial court's reasoning that defendant was probably a "mule" who was being "fronted" the cocaine (which would explain why no cash changed hands here) is simply too speculative to justify defendant's conviction of possession with intent to deliver.

The State urges that we uphold the trial court's ruling in light of our supreme court's decision in People v. Robinson, 167 Ill. 2d 397, 657 N.E.2d 1020, 212 Ill. Dec. 675 (1995). The Robinson court found there was sufficient evidence to justify the jury's finding that the defendant possessed 2.8 grams of cocaine and 2.2 grams of phencyclidine (PCP) with the intent to deliver. Robinson, 167 Ill. 2d at 414. Yet Robinson is easily distinguished from the present case. A number of the factors discussed earlier as being indicative of intent to deliver were present in Robinson. Forty individual packets, containing two different types of controlled substances, were recovered in Robinson. Moreover, police responding to several anonymous complaints of drug sales occurring at defendant's apartment building observed heavy traffic moving in and out of defendant's building. Robinson, 167 Ill. 2d at 413-14.

The only factor which arguably supports an inference of intent to deliver in the present case is the quantity of cocaine (26.8 grams) defendant possessed. As the State correctly points out, our supreme court has recognized that quantity alone may, under certain circumstances, constitute sufficient circumstantial evidence of intent to deliver. Robinson, 167 Ill. 2d at 410-11. However, quantity alone will suffice "only where the amount of controlled substance could not reasonably be viewed as designed for personal consumption," and, as the Robinson majority further noted, "as the quantity of controlled substance in the defendant's ...

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