Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 97--CM--3073 Honorable Stuart P. Borden, Judge Presiding
The opinion of the court was delivered by: Justice Koehler
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
JUSTICE KOEHLER delivered the opinion of the court:
The defendant, Jennifer R. Schmalz, appealed her conviction in a bench trial for unlawful possession of cannabis and drug paraphernalia (720 ILCS 550/4(a), 600/3.5(a) (West 1996)). Concluding that the State had not proven constructive possession where the defendant was not in control of the premises, this court reversed the defendant's conviction (People v. Schmalz, No. 3--98--0097 (1998) (unpublished order under Supreme Court Rule 23)). The supreme court denied the State's petition for leave to appeal but, in the exercise of its supervisory authority, directed this court to vacate its order and review the case in accordance with the supreme court's decision in People v. Adams, 161 Ill. 2d 333, 641 N.E.2d 514 (1994). *fn1 Accordingly, we revisit the cause to determine whether the circuit court erred in its Conclusion that the State proved beyond a reasonable doubt that Schmalz was guilty of unlawful possession of cannabis and drug paraphernalia. In so doing, we must answer the following question: Did the State meet its burden of establishing that Schmalz was guilty of the offense of unlawful possession of cannabis and drug paraphernalia (720 ILCS 550/4(a), 600/3.5(a) (West 1994)) because she either (1) had constructive possession of the contraband or (2) was accountable for the actions of those in her company? Because we conclude that the State did not meet its burden, we reverse.
For purposes of our analysis, we reiterate our previous recitation of the evidence presented at trial. According to the agreed statement of facts, Officer Baize of the Peoria police department obtained permission to enter a residential building to search for the driver of a parked vehicle. Baize testified that as he mounted the stairs he noticed smoke and the odor of burning marijuana. The door to a bedroom where the smell was particularly strong stood ajar. Baize tapped on it and was invited in. The room was smoky and hazy and contained a bed, a couch and four persons.
Schmalz was sitting on the floor and three other persons were seated on the bed and couch. Three clear plastic bags of a green leafy substance and three "bongs" were on the bedroom floor. One bag and one bong were within Schmalz' reach. Baize asked what they were doing, and Schmalz responded, "We're having a party." The officer noted that there were no drinks, snacks or food items in the room.
After arresting all of the occupants, Baize searched the house for other contraband. He found a fourth bag of a green leafy substance in the bedroom couch and drug paraphernalia in other rooms of the house. Baize determined that Schmalz neither resided nor stayed at the house. Baize did not find any contraband on her person or in her personal belongings. Moreover, the State offered no evidence to show who brought the contraband into the house, when it arrived, or how long it had been there.
Stipulated forensic testimony established that the material in the plastic bags weighed a total of 6.8 grams and tested positive for cannabis. No other witnesses testified. The circuit court concluded that Schmalz was guilty of misdemeanor possession of cannabis (under 2.5 grams) and drug paraphernalia, as charged, and she appealed.
"A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. [Citations.]" People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77 (1985). On review, we must determine whether the evidence, when viewed "in the light most favorable to the prosecution, [allows] any rational trier of fact [to find] the essential elements of the [offense]." (Emphasis omitted.) People v. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979).
The defendant argued on appeal that the State's evidence failed to prove beyond a reasonable doubt that defendant had actual or constructive possession of contraband. She asserts that because Baize found the contraband on the premises rather than on the defendant, the State must prove that she had control of the premises in order to permit the inference that she had knowledge and control over the contraband and, therefore, constructive possession of the contraband. Her mere presence in the vicinity of the contraband does not establish constructive possession. Schmalz asserts that evidence was not presented that gives any indication that she had control over the premises and, therefore, the State failed to prove constructive possession beyond a reasonable doubt.
The State argued that because Schmalz was not a resident of the premises where the contraband was found, the State must prove that she had actual possession of the contraband. However, actual possession of contraband does not require personal present touching but only personal present dominion over the contraband. The evidence indicates that the drugs and the drug paraphernalia were immediately accessible to Schmalz and that she had present personal dominion over the contraband. Therefore, her unlawful possession of cannabis and drug paraphernalia was established beyond a reasonable doubt. 720 ILCS 550/4(a), 600/3.5(a) (West 1996).
The Cannabis Control Act provides in pertinent part: "It is unlawful for any person knowingly to possess cannabis. Any person who violates this section with respect to: (a) not more than 2.5 grams of any substance containing cannabis is guilty of a Class C misdemeanor." 720 ILCS 550/4(a) (West 1998). The Drug Paraphernalia Control Act provides in pertinent part: "A person who knowingly possesses an item of drug paraphernalia with the intent to use it in ingesting, inhaling, or otherwise introducing cannabis or a controlled substance into the human ...