Appeal from the Circuit Court of Cook County 01 CR 14256 Honorable Ronald A. Himel, Judge Presiding
The opinion of the court was delivered by: Justice McBRIDE
Taureo Burks was convicted of possession of a controlled substance with intent to deliver and sentenced to seven years' imprisonment following a bench trial. In this appeal, he argues (1) that the circuit court failed to make proper inquiry into his posttrial allegations of ineffective assistance of counsel; (2) that he was unconstitutionally sentenced as a Class X offender; (3) that he should have been credited with 212 days served instead of 211 days; and (4) that the evidence was insufficient to support his conviction or a conviction for the lesser included offense of possession of a controlled substance. We address the last of these issues first.
When considering an attack on the sufficiency of the evidence supporting a conviction, we will reverse "only if no rational trier of fact could have found that the defendant committed each element of the charged offense." People v. Jones, 295 Ill. App. 3d 444, 451-52 (1998). "A defendant therefore must show that the evidence of criminal conduct is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt." Jones, 295 Ill. App. 3d at 452. We must consider the evidence "in the light most favorable to the prosecution, and [we] may not substitute [our] judgment for that of the trier of fact on questions such as weight of evidence, credibility of witnesses or resolution of conflicting testimony." Jones, 295 Ill. App. 3d at 452. We will not reverse a conviction on appeal "unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt." People v. Smith, 288 Ill. App. 3d 820, 823 (1997).
To sustain a conviction for possession of a controlled substance with intent to deliver, the State was required to prove: (1) that the defendant had knowledge of the presence of the controlled substance; (2) that the controlled substance was within the defendant's immediate control or possession; and (3) that the defendant had intent to deliver the controlled substance. Jones, 295 Ill. App. 3d at 452. Burks contests the sufficiency of the State's evidence on the last two elements. Thus, we consider whether the evidence adduced at trial supports Burks' conviction. Officer Dillard Fisher testified for the State. Fisher testified that on May 2, 2001, at approximately 1:55 p.m., he was in plainclothes in an unmarked vehicle, parked in the south alley of Gladys Street near Lavergne Street in Chicago. He testified that he had an unobstructed view of Burks, who was standing about 60 feet away at the mouth of Lavergne. Fisher saw an individual approach Burks and hand him money. He then saw Burks point to another individual standing about 10 feet away. That individual then proceeded about 10 feet down the alley, bent down behind a garbage can, retrieved a brown paper bag, pulled something out of the bag, and handed it to the individual who had paid the money to Burks. The individual who paid the money and received the object from inside the bag then left and Burks and the other individual, continued to stand approximately 10 feet from one another. Fisher testified that another individual approached Burks about 10 minutes later, gave him some money, and the transaction proceeded in the same manner as the first. After the second transaction, Fisher testified that he and his partner detained Burks and the other man. They recovered the brown paper bag, which contained eight small plastic bags. Sixty-eight dollars in United States currency was recovered from Burks.
Fisher also testified that the eight plastic bags were inventoried with the Illinois State Police lab under inventory number 2521320. The State entered into a stipulation with defendant regarding the chain of custody for the inventoried plastic bags. The stipulation entered into between the parties was the following:
"It is hereby stipulated between the parties that there was a proper chain of custody maintained over the 8 packets of suspect cocaine under inventory no. 2521320. That the forensic chemist Sassie (phonetic) Bond, B-o-n-d, is employed by the Illinois State Police Crime Lab and is qualified to testify as an expert in the area [of] forensic chemistry.
She did receive the 8 packets in a sealed condition, weighed those packets, found the total estimated weight to be 1.6 grams.
Performed tests commonly accepted in the area of forensic chemistry for ascertaining presence of controlled substance on 6 of the 8 packages.
After performing the tests on the 6 packages it is the chemist's opinion within a reasonable degree of scientific certainty that tested items were positive for the presence of cocaine in the amount of 1.2 grams."
After the State rested, Burks moved for a directed finding, which was denied. The defense rested without introducing any evidence. Burks was found guilty of possession of a controlled substance with intent to deliver.
We first consider Burks' claim that the evidence was insufficient to support a finding that he possessed the cocaine. He claims that "[a]lthough knowledge and awareness of drugs can be inferred when drugs are in plain view of a defendant, Burks could not be expected to know what was hidden behind a garbage can in an alley ten feet away, or be aware of what is in someone else's hand when they were several feet away." We note, however, that it is not necessary for the State to prove actual possession. Instead, they may show constructive possession. See People v. Neylon, 327 Ill. App. 3d 300, 306 (2002); Jones, 295 Ill. App. 3d at 453.
"A defendant has constructive possession of drugs where there is no actual control of the drugs but where defendant intends to and has a capacity to maintain control over them." Jones, 295 Ill. App. 3d at 453. Evidence that a defendant knew drugs were present and exercised control over them establishes constructive possession. Jones, 295 Ill. App. 3d at 453. "Knowledge may be shown by evidence of conduct from which it may be inferred that the defendant knew the contraband existed in the place where it was found." Smith, 288 Ill. App. 3d at 824.
In Jones, the evidence of possession was similar to the evidence in this case. The defendant received money from individuals and then, through nonverbal conduct, directed his accomplices to retrieve cocaine from underneath a rock a short distance away, which cocaine was then given to the purchaser. Under those circumstances, the court found that the "[d]efendant's conduct and the actions of his accomplices support[ed] the conclusion that defendant knew where the drugs were located, always intended to maintain control of the drugs, and never ...