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People v. Morgan

December 30, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID S. MORGAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 97--CF--1617 Honorable Barbara Gilleran-Johnson, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Geiger

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Following a jury trial, the defendant, David S. Morgan, was convicted of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and unlawful delivery of a controlled substance within 1,000 feet of a public park (720 ILCS 570/407(b)(1) (West 1996)) and sentenced to 10 years' imprisonment. On appeal, the defendant argues that (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in allowing certain opinion testimony by one of the arresting officers; and (3) his sentence was excessive. We affirm.

At trial, Officer Gabriel Guzman of the Waukegan police department testified on behalf of the State. Officer Guzman testified that on June 19, 1997, he observed the defendant standing next to a brown Cadillac parked in the driveway of a public parking lot about 15 to 20 feet away from Bedrosian Park in Waukegan. The defendant was standing near the back door of the vehicle on the driver's side. The defendant was with two other people who were standing two or three feet away from him near the front door of the vehicle on the driver's side. As Officer Guzman drove his vehicle towards the Cadillac, the three individuals separated, with the defendant walking towards the rear of the vehicle and the other two individuals walking towards the front of the vehicle.

After Officer Guzman pulled his vehicle up alongside the Cadillac, he and his two partners got out. Officer Guzman looked under the rear of the Cadillac and found a cigarette package containing numerous baggies full of white rock-like substances. Officer Guzman also saw one of his partners recover a revolver from inside the Cadillac. Officer Guzman never saw the defendant in physical possession of the gun or the cigarette package that he found under the Cadillac.

Officer Tom Granger testified that he was riding in Officer Guzman's vehicle on the date in question. Officer Granger testified that he saw the defendant and two other people standing by the rear door on the driver's side of a parked Cadillac. The Cadillac was within 1,000 feet of the boundaries of Bedrosian Park. Officer Granger testified that he observed the defendant reach into his pocket and pull out something like "a piece of plastic" and then make a jerking movement as if he were throwing something. Officer Granger subsequently told Officer Guzman to look under the car to retrieve the item he thought the defendant might have thrown there. Officer Guzman found the cigarette packet under the car and gave it to Granger. Back at the station, Granger discovered that the cigarette packet contained sixteen smaller, individually wrapped packets containing a white rocky substance.

Sergeant Daniel Greathouse of the Waukegan police department also testified on behalf of the State. He testified that he was with Officers Granger and Guzman on the date in question conducting surveillance in the area of Bedrosian Park. He testified that Bedrosian Park is a small area open to the public, measuring approximately 100 feet by 100 feet and containing one or two basketball courts and some playground equipment. Over objection, Sergeant Greathouse testified that he had participated in over 100 arrests in Bedrosian Park for possession and delivery of controlled substances and that the area was "notorious for drug trafficking."

Sergeant Greathouse testified that he observed the defendant standing by the rear driver's side window of a Cadillac parked approximately 15 to 18 feet from the park. Two other people were standing by the car with the defendant. When the officers approached the area, Sergeant Greathouse observed the defendant put his left hand into his pocket and then make a tossing or dropping motion. However, Sergeant Greathouse did not see the defendant physically remove anything from his pocket. Sergeant Greathouse further testified that the rear window of the Cadillac was open and that he observed a .22-caliber revolver lying between the seat and the door. The revolver contained seven live rounds and one spent round. Although the defendant told Sergeant Greathouse that he owned the car, he insisted that the gun and the drugs were not his.The defendant testified that he had been in the park area for about two hours prior to his arrest. When he first arrived, he met with three other people. The defendant agreed to lend his car to them in return for some rock cocaine to smoke. The defendant testified that he had lent his car to one of these people four or five times in the past. He testified that there was no gun in his car when he lent it to them and that the gun that was recovered was not his. While the others were using his car, the defendant remained in the park playing basketball.

The defendant testified that, when the police arrived at the scene, the others had already returned and he was talking to them. Right before the police got out of their car, one of the other people threw something to the ground. The defendant testified that he believed that the item was cocaine, and he tried to kick it under the car because he wanted to be able to smoke it later.

The parties stipulated that the rocky white substance recovered by the officers contained cocaine. Specifically, the crime lab found 17 individually wrapped packets of cocaine weighing a total of 1.4 grams.

The jury subsequently found the defendant guilty of unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 1996)) and unlawful delivery of a controlled substance within 1,000 feet of a public park (720 ILCS 570/407(b)(1) (West 1996)). Following a sentencing hearing, the trial court sentenced the defendant to concurrent sentences of 3 years' imprisonment for the unlawful possession count and 10 years' imprisonment for the unlawful delivery count.

The defendant's first argument on appeal is that the State did not prove him guilty of the offense of delivery of a controlled substance within 1,000 feet of a public park beyond a reasonable doubt. Specifically, he argues that the State did not introduce any evidence demonstrating that he intended to deliver the drugs. Additionally, the defendant contends that the State did not prove that Bedrosian Park was in fact a public park.

We note at the outset that it is not the province of this court to retry the defendant. People v. Collins, 106 Ill. 2d 237, 261 (1985). The relevant question is " 'whether, after viewing 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.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). Moreover, it is the function of the jury to determine the credibility of the witnesses and draw reasonable inferences from the evidence. People v. Robinson, 167 Ill. 2d 397, 413 (1995).

Intent to deliver is necessarily proved by circumstantial evidence, and a reasonable inference of intent to deliver narcotics arises from the possession of contraband in excess of any amount that could be designed for personal use. Robinson, 167 Ill. 2d at 408. The inference of intent may be enhanced by the combination of drugs and the manner in which the drugs are packaged. Robinson, 167 Ill. 2d at 408; People v. Friend, 177 Ill. App. 3d 1002, 1021 (1988). Indeed, our supreme court has held that, in appropriate circumstances, packaging alone may be sufficient evidence of intent to deliver. Robinson, 167 Ill. 2d at 414. Other relevant ...


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