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State v. Hagberg

December 09, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
PATRICK A. HAGBERG, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of McHenry County. No. 95--CF--534 Honorable Ward S. Arnold, Judge, Presiding.

The opinion of the court was delivered by: Justice Thomas

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Following a bench trial in the circuit court of McHenry County, defendant, Patrick A. Hagberg, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1994)) and of a traffic violation. Prior to the trial, defendant pleaded guilty to the offense of resisting a peace officer (720 ILCS 5/31--1 (West 1994)). With respect to the unlawful possession conviction, the trial court sentenced defendant to 24 months' probation with various conditions and costs. After the trial court denied his motion for a new trial, defendant filed a timely notice of appeal. Defendant appeals only from his conviction of unlawful possession of a controlled substance.

Defendant raises three issues on appeal: (1) whether a field test, by itself, was sufficient to prove beyond a reasonable doubt that he possessed a controlled substance; (2) whether the trial court erred in admitting the field test evidence; and (3) whether he understandingly waived his right to a jury trial. Because the the field test evidence in this case was insufficient to prove beyond a reasonable doubt that defendant possessed a controlled substance, we reverse his conviction and vacate his sentence.

At trial, the State presented evidence tending to show that defendant possessed small amounts of cocaine in two separate containers, a glass vial and a folded piece of paper. The trial court found that defendant did possess the folded piece of paper but that the State failed to prove beyond a reasonable doubt that defendant possessed the glass vial. Defendant's appeal concerns only the substance in the folded piece of paper.

The incident that gave rise to the charges against defendant occurred about 11:30 p.m. on June 26, 1995. At that time, Officer William Bukovsky of the McCullom Lake police department was on duty as a uniformed patrolman in a one-person squad car. Bukovsky testified that he observed a car being driven with an improper taillight. Bukovsky activated the flashing lights and siren on his squad car and pursued the car. The car did not stop until it had proceeded about a half mile and turned into a parking lot near an apartment complex. Defendant was driving the car. After stopping the car in the parking lot, defendant exited the car and stood next to it.

Bukovsky approached defendant and informed him that he was under arrest because his driver's license was suspended. According to Bukovsky, defendant then resisted his arrest. Two other police officers helped Bukovsky handcuff defendant and place him in the back of Bukovsky's squad car. Bukovsky then transported defendant to the police station and processed his arrest.

Bukovsky's testimony regarding the folded piece of paper included the following. During the processing of defendant's arrest, defendant requested his wallet. Bukovsky then went to his squad car and searched for defendant's wallet. At the start of his shift, Bukovsky had inspected his squad car to insure that nothing had been left in the squad car from a previous shift. On the date in question, no one else was in the back of Bukovsky's squad car before defendant's arrest. Bukovsky found defendant's wallet on the floor of his squad car behind the driver's seat. At the same time, Bukovsky also found a folded piece of paper on the floor of the squad car a few inches from defendant's wallet. Bukovsky took the folded piece of paper into the police station where he unfolded it and found a white powdery substance inside. Defendant denied that the folded piece of paper was his.

Bukovsky testified that he performed a field test on the substance in the folded piece of paper and that the field test was positive for cocaine. In performing the field test, Bukovsky followed the directions included with the field test materials. Bukovsky had previously performed 20 to 30 field tests. About five or six of the previous field tests that Bukovsky had performed were for the presence of cocaine. On cross-examination, Bukovsky testified that he had received from four to six hours of training regarding field tests at the University of Illinois Corrections Academy. He also received additional training in field tests from personnel at the McCullom Lake police department. Bukovsky testified that he was trained in the type of field test that he performed on the substance in the folded piece of paper. This type of field test involved putting the substance tested in a little vial with another substance and observing the color that then appeared. Bukovsky did not know the name of the test. He was not aware of any other types of field tests. When he was asked if he knew what color to look for when performing a field test, Bukovsky responded, "Off hand, no. I just read the directions whatever it tells you to do."

On appeal, defendant contends that the State failed to prove him guilty beyond a reasonable doubt of possessing a controlled substance. Defendant first argues that a field test by itself is insufficient to prove beyond a reasonable doubt that a substance is a controlled substance. Defendant also argues that, even if a field test was sufficient by itself, the trial court erred in admitting the field test evidence in this case because the State failed to establish an adequate foundation for Bukovsky's testimony regarding the field test and, in the absence of any other evidence proving that he possessed a controlled substance, the State failed to prove his guilt beyond a reasonable doubt.

When resolving a challenge to the sufficiency of the evidence in a criminal trial, a reviewing court considers all the evidence in the light most favorable to the prosecution and determines whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). A reviewing court will not reverse a criminal conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Manning, 182 Ill. 2d 193, 210 (1998).

In a criminal case, the State has the burden to establish beyond a reasonable doubt the essential elements of the crime. People v. Sanford, 24 Ill. 2d 365, 368 (1962). To prove a defendant guilty of unlawful possession of a controlled substance, the State must prove beyond a reasonable doubt that the substance possessed by the defendant was in fact a controlled substance. People v. Hanna, 296 Ill. App. 3d 116, 121 (1998).

In this case, despite his initial denial, on appeal defendant does not dispute the State's contention that he possessed the folded piece of paper found by Bukovsky on the floor of the squad car or that the folded piece of paper contained a white powdery substance. Rather, defendant asserts that the State failed to prove that the substance in the folded piece of paper was a controlled substance. In support of this assertion, defendant argues that a field test alone is insufficient to prove that a substance is a controlled substance and that the trial court abused its discretion by admitting the evidence of the field test in this case.

We first address defendant's contention that a field test, by itself, is insufficient to prove beyond a reasonable doubt that a substance is a controlled substance. In support of his contention defendant argues that we should not follow People v. Clark, 7 Ill. 2d 163 (1955), which courts have frequently cited for the proposition that a field test alone is sufficient to prove beyond a reasonable doubt that a substance is a controlled substance. See, e.g., People v. Harrison, 26 Ill. 2d 377, 379-80 (1962); People v. Hernandez, 229 Ill. App. 3d 546, 556 (1992); People v. United States Currency, 213 Ill. App. 3d 899, 903 (1991); People v. Vazquez, 180 Ill. App. 3d 270, 277 (1989); People v. Littorio, 32 Ill. App. 3d 255, 259 (1975); People v. West, 3 Ill. App. 3d 106, 114-15 (1971); People v. Garcia, 52 Ill. App. 2d 481, 487 (1964). Initially, we note that Clark does not stand for the proposition for which its progeny has frequently cited it. In Clark, a police informant purchased a white powder substance from the defendant who was found guilty of selling narcotic drugs. Clark, 7 Ill. 2d 165-66. A police officer performed a field test that indicated that the substance was a derivative of opium. Clark, 7 Ill. 2d at 166. At trial, a chemist testified that powder in two packets delivered to him by one of the police officers participating in the defendant's arrest was heroin. Clark, 7 Ill. 2d at 167. On appeal, one of the issues raised by the defendant was whether the powder analyzed by the chemist was the same powder purchased by the police informant. The court noted that the foundation for the chemist's testimony left "much to be desired" but stated that the foundational defect regarding the chemist's analysis was "not fatal in light of the fact that the testimony of [the officer who performed the field test] was sufficient to establish beyond a reasonable doubt that the powder purchased from the defendant field tested as a derivative of opium." Clark, 7 Ill. 2d at 171. The court then stated that "[f]rom a careful examination of the entire ...


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