Appeal from Circuit Court of Champaign County No. 98CF1493 Honorable Thomas J. Difanis, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
On January 6, 1999, defendant, Jacqueline K. Smith, pleaded guilty to obstruction of justice (720 ILCS 5/31-4(a) (West 1998)) and the trial court sentenced her to 12 months' conditional discharge, with 180 days in jail. One of the conditions of her conditional discharge was that she not violate the criminal statutes of any jurisdiction. In February 1999, the State filed a petition to revoke defendant's conditional discharge, alleging that she violated the terms of her conditional discharge by again committing the offense of obstructing justice. 720 ILCS 5/31-4(a) (West 1998). The trial court found the State proved the grounds alleged, revoked her conditional discharge, and resentenced defendant to an extended six-year prison term for the underlying obstruction-of-justice conviction. Defendant appeals. We affirm.
Defendant was a passenger in a vehicle that police stopped in the early morning hours in a high drug-crime area in Champaign. Police officer Brian Gallagher asked defendant to step out of the vehicle. Defendant stepped out and Gallagher asked her if she had anything in her purse. She responded that she did not and asked Gallagher if he wanted to search her purse. Gallagher searched her purse and found no contraband. Gallagher then asked defendant to open her mouth. He testified that he did so because, in his experience, narcotics buyers will often hide drugs in their mouths so that they may be easily destroyed to prevent their discovery by police. Gallagher testified that in response to his request defendant "closed her mouth very tightly and made two exaggerated swallowing motions." Gallagher was approximately six inches from her and could "see that her throat was making a swallowing[-]type movement." Gallagher again asked defendant to open her mouth. She did so and he looked inside her mouth with a flashlight, observing a white substance on the tip of her tongue. Gallagher described the substance he observed as "consistent with how crack cocaine" appeared to him. Specifically, he described the object as "small, white, had, like a rock[-]like shape to it, jagged edges."
Gallagher asked defendant to stick out her tongue. He observed the substance for approximately 45 seconds, while he was trying to put on a rubber glove so that he could remove the substance. Before Gallagher could put on the glove, defendant put her tongue back inside her mouth. He asked her again to put her tongue out, but when she did, the substance was gone. Gallagher testified that after he first saw the substance on defendant's tongue he had probable cause to believe she had narcotics in her mouth, and he then ordered her to stick her tongue out. Defendant was arrested for obstructing justice.
Defendant denied that she had any controlled substance or anything else on her tongue. The trial court found that the State had proved that defendant had violated a condition of her conditional discharge, that defendant "didn't keep her tongue in an area where Officer Gallagher could retrieve what he suspected was crack cocaine that he saw on her tongue," and "whether it was crack cocaine or not, doesn't make any difference."
In a hearing to revoke conditional discharge, the State has the burden of going forward and proving a violation by a preponderance of the evidence. People v. Whitfield, 147 Ill. App. 3d 675, 679, 498 N.E.2d 262, 265 (1986). In the appellate court, a revocation of conditional discharge will be overturned only when it is contrary to the manifest weight of the evidence. Whitfield, 147 Ill. App. 3d at 679, 498 N.E.2d at 265. De novo review is only appropriate when neither the facts nor the credibility of witnesses is disputed. People v. Anthony, 198 Ill. 2d 194, 201, 761 N.E.2d 1188, 1191 (2001). Even when the facts are undisputed, where reasonable persons could draw divergent inferences from those facts, any question of fact should be resolved by the trier of fact. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 424, 706 N.E.2d 460, 463 (1998).
The State's amended petition to revoke alleged:
"[Defendant] wilfully violated the conditions of her conditional discharge in that on Feb- ruary 9, 1999[,] she committed the offense of [o]bstructing [j]ustice in that she knowingly and with the intent to prevent her own appre- hension destroyed evidence, in violation of 720 ILCS 5/31-4."
The argument is made that defendant had already been apprehended when she destroyed evidence and that the State accordingly failed to prove an essential element of the offense as charged.
The statute that proscribes obstructing justice states:
"A person obstructs justice when, with intent to prevent the apprehension or obstruct the prosecution or defense of any person, he knowingly commits any of the following acts:
(a) Destroys, alters, conceals or dis- guises physical evidence ***[.]" 720 ILCS 5/31-4(a) (West 1998).
In People v. Miller, 253 Ill. App. 3d 1032, 1036, 628 N.E.2d 893, 897 (1993), a conviction of obstructing justice was reversed because "[t]he State failed to prove beyond a reasonable doubt an essential element of the offense as charged." Defen-dant, who had been arrested for possession of alcohol by a minor, gave two false names while in custody at the police station. The complaint charged defendant with intent to prevent his own "apprehension" and did not charge him with intent to obstruct his prosecution. Miller, 253 Ill. App. 3d at 1035, 628 N.E.2d at 896. "Since the evidence shows that the defendant was already under arrest when he gave purportedly false names to the officer, he could not ...