Appeal from the Circuit Court of Cook County Honorable Preston L. Bowie, Judge Presiding.
The opinion of the court was delivered by: Justice O'mara Frossard
Defendant was indicted for possession of a controlled substance with intent to deliver less than 10 grams of a substance containing heroin within 1000 feet of a public park and for possession of a controlled substance with intent to deliver less than 10 grams of a substance containing heroin. Following a bench trial, defendant Kissimmiee Fox was found guilty of possession of a controlled substance, the lesser included offense of count two and sentenced to an extended five-year prison term. On appeal, defendant contends the State failed to prove him guilty beyond a reasonable doubt by presenting an insufficient chain of custody regarding the recovered narcotics. Alternatively, defendant contends that the extended-term sentencing provision of the Unified Code of Corrections (Code) (730 ILCS 5/5- 5-3.2(b)(1) (West 2000)) is unconstitutional under the holding of Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). For the reasons stated below, we affirm.
At trial, the State presented the testimony of Officer Abraham Lara, who was conducting narcotics surveillance at 4720 West Erie Street in Chicago on February 17, 2000. Using binoculars, Lara was able to observe defendant from a distance of 40 feet. Lara testified that the area was well lit and nothing obstructed his view. On three separate occasions, various people approached defendant and conducted a hand- to-hand exchange. After observing the third transaction, Lara and his partner drove to an alley north of Erie Street, where Lara then walked towards defendant. While Lara's partner drove southbound, defendant was alerted to the police presence by an unknown man. Defendant initially ran north towards Lara, but then ran in the opposite direction when he saw Lara approaching. When Lara was within 15 feet of defendant, defendant dropped an item, and Lara retrieved it. The item was a plastic bag which held a smaller plastic bag. Inside the smaller bag, Lara discovered 24 small tinfoil packets containing white powder, suspected of being heroin. Subsequently, Lara inventoried the plastic bags and the 24 tinfoil packets under inventory number 2313831.
At trial, the parties stipulated that the police followed proper inventory procedure, that the recovered items were inventoried under number 2313831, and that a proper chain of custody was maintained until the items reached a qualified forensic chemist, Clifford McCurdy.
McCurdy testified at trial that he received the items inventoried under number 2313831 on March 1, 2000. He described the items as two pieces of plastic and 24 foil packets containing powder. McCurdy tested the powder from one of the foil packets and determined it was 0.1 grams of heroin. In his initial report, McCurdy described the other 23 untested packets as three grams of plant material. On July 31, 2000, several months before trial, after the Assistant State's Attorney notified McCurdy's supervisor of the mistake, McCurdy amended his report. He noted that on the first report he incorrectly described the 23 untested packets as containing plant material instead of powder. The description of the one packet which McCurdy tested was the same in both the original report and the amended report. McCurdy testified that his handwritten notes on a laboratory work sheet described the items under inventory number 2313831 as, "Two pieces of plastic which are considered exhibit one and 24 foil packets containing powder considered exhibit two." McCurdy further explained that he used a laboratory work sheet to document the work he does on a case and as he is working on the case he handwrites notes on the laboratory worksheet.
At the conclusion of trial, the court found defendant guilty of possession of a controlled substance, the lesser included offense of count two. As to the discrepancy between the chemist's initial and amended reports, the trial judge found the mistake adequately explained by the chemist and further noted that "*** there is no dispute as to the one item that was tested which is sufficient to find the defendant guilty of possession of controlled substance."
At the sentencing hearing, defendant requested he be allowed to enter a drug rehabilitation program, but the State argued defendant's four prior felony convictions warranted an extended prison term. The trial court agreed with the State and sentenced defendant to an extended five-year prison term.
On appeal, defendant contends the evidence was insufficient to prove him guilty beyond a reasonable doubt because the police officer recovered items containing powder but the forensic chemist's original report reflected that the recovered items contained a plant material.
When a defendant challenges the sufficiency of the evidence, the relevant inquiry 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. Jackson v. Virgina, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). The credibility of the witnesses, the weight to be given their testimony and the resolution of any conflicts in the evidence are within the province of the trier of fact (People v. Slim, 127 Ill. 2d 302, 307 (1989)), and a reviewing court will not substitute its judgment for that of the trier of fact. People v. Furby, 138 Ill. 2d 434, 455 (1990). Where the record demonstrates that the trier of fact was made aware of the inconsistencies in the testimony of a witness, a reviewing court will not substitute its judgment for that of the trier of fact. People v. Wiesneske, 234 Ill. App. 3d 29, 39 (1992).
Before real evidence may be admitted at trial, the State must provide an adequate foundation either by way of live testimony or stipulation which establishes that the item sought to be introduced into evidence is the actual item involved in the alleged offense and that its condition is substantially unchanged. People v. Cole, 29 Ill. App. 3d 369, 375 (1975). If an item is not readily identifiable or if it is susceptible to alteration by tampering or contamination, its chain of custody must be established by the State with sufficient completeness to render it improbable that the original item has either been exchanged, contaminated, or subjected to tampering. People v. Terry, 211 Ill. App. 3d 968, 973 (1991).
Unless the defendant produces actual evidence of tampering, substitution, or contamination, the State need only establish a probability that tampering, substitution, or contamination did not occur, and any deficiencies go to the weight rather than the admissibility of the evidence. People v. Hominick, 177 Ill. App. 3d 18, 29 (1988). In the instant case, defendant did not produce actual evidence of tampering, substitution, or contamination. Therefore, it is the State's burden to prove the chain of custody with sufficient completeness to establish a probability that reasonable measures were employed to protect the evidence from the time it was seized and that it was improbable the evidence was altered. People v. Bynum, 257 Ill. App. 3d 502, 510 (1994).
The purpose of protective measures is to ensure that the substance recovered from the defendant was the same as the substance tested by the forensic chemist. People v. Ryan, 129 Ill. App. 3d 915, 919 (1984). Proof of delivery, presence, and safekeeping demonstrate that reasonable measures were taken to protect the evidence. People v. Gibson, 287 Ill. App. 3d 878, 882 (1997). The State is not required to exclude every possibility of tampering (People v. Lach, 302 Ill. App. 3d 587 (1998)), nor does it need to present everyone involved in the chain of custody (People v. Kabala, 225 Ill. App. 3d 301, 306 (1992)).
The State contends that the chain of custody was sufficiently established in this case because reasonable protective measures were taken after the evidence was seized and the testimony demonstrated that the evidence seized matched the evidence subjected to chemical analysis. We are mindful that if one link in the chain is missing, but there is evidence describing the condition of the evidence when delivered which matches the description of the evidence when ...