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People v. Besz

November 20, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAGODA BESZ, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County No. 01 C4 40296 02 The Honorable Francis X. Golniewicz, Judge Presiding.

The opinion of the court was delivered by: Justice Greiman

UNPUBLISHED

Following a bench trial, defendant, Jagoda Besz, was convicted of possession of a controlled substance and sentenced to 18 months' probation. She timely appeals from the judgment of the court below, specifically challenging the sufficiency of the evidence in this case in several respects. First, defendant argues that the State failed to prove beyond a reasonable doubt the existence of an adequate chain of custody between the substance recovered at the apartment and that tested by the laboratory, alleging, as well, that the physical descriptions of the substance were discrepant. Defendant further argues that the State failed to prove beyond a reasonable doubt an adequate foundation for the admission of the results of the test identifying the substance as cocaine or the testimony of the person who performed the test. Finally, defendant argues that the State failed to prove beyond a reasonable doubt that she had constructive possession of the substance.

The following evidence was adduced at the bench trial held on November 7, 2001. The State first called Officer Mieszala, who testified that, at approximately 2 a.m. on February 15, 2001, he and Officer Paoletti responded to a drug overdose call at 2906 74th Court in Elmwood Park. The officers were met at the door by co-defendant Bart Szalaj, who told the officers that his girlfriend was "freaking out on drugs." Szalaj led them to the basement, where defendant was sitting, semiconscious, on a bed. The dimensions of the "cramped," one-room apartment were either "ten by ten" or "twelve by twelve." Defendant appeared to Mieszala to be under the influence of "mind-altering drugs" and was not responsive to the officers' questioning. The paramedics arrived two minutes later and treated defendant.

Mieszala further testified that he observed Paoletti find a plate with white powder residue on it, along with a straight razor, on the ground. Paoletti then turned to look at the television stand and produced a clear plastic bag containing a white powder substance. Paoletti retained the bag. When presented with People's exhibit B, Mieszala identified it as the "clear plastic bag containing the white powder substance that Officer Paoletti found in the TV stand." On cross-examination, Mieszala testified that there were other apartment units in the basement of the building and that he did not find any leases or utility bills in the apartment with defendant's name on them. Mieszala also stated that he did not see defendant physically possess the substance found at the apartment.

The State next called Officer Juntunen, who testified that he also responded to the overdose call. He observed Paoletti recover the plate and razor blade and a plastic bag, all of which Paoletti then handed to him. He did not see from where Paoletti recovered the plastic bag. When presented with People's exhibits C and D, Paoletti identified them as the white substance in the plastic bag and the plate, respectively. On cross-examination, Juntunen testified that he never saw defendant in possession of any cocaine or marijuana.

The State then called Sergeant Fagiano, who testified that he was called to the Elmwood Park police station on the night of the incident and spoke to defendant at approximately 5:30 a.m. Defendant told him that a friend brought over the cocaine that night, they played video games, and eventually they did 8 to10 lines of cocaine together off a kitchen plate. Defendant then passed out, remembering only that the paramedics had helped her. She stated that they placed the bag containing the cocaine underneath the television stand. The friend who brought the cocaine left the apartment at 1:30 a.m., leaving the cocaine there for defendant and Szalaj to hold.

The parties entered the following stipulation, in relevant part: "[I]f called to testify the State would call Bradley Fleming. He would testify that items were submitted to the Illinois State Police Forensic Science Division under laboratory case number W1001038; that the items submitted was [sic] 69.2 grams of a chunky substance in one baggie; that the findings were cocaine." At that point, exhibits A, B, C, and D were admitted into evidence without objection by defendant.

Throughout trial, the defense focused on the possession element of the crime. Defense counsel argued that defendant did not have control over the premises where the cocaine was found and, thus, she did not have constructive possession of it. In developing this argument, defense counsel acknowledged that the substance at issue was cocaine, but claimed that defendant only had possession of the 8 to10 lines that she ingested, rather than the "large chunk of cocaine" found in the apartment on the television stand and entered as an exhibit at trial. Defendant moved for a directed finding on this basis, which the court denied.

At the conclusion of the trial, defendant was convicted of possession of cocaine in an amount between 15 and 100 grams, pursuant to section 402(a) of the Illinois Controlled Substances Act (720 ILCS 570/402(a) (West 2000)). Defendant filed a motion for new trial, reiterating the argument regarding constructive possession. Defendant argues on appeal that the evidence was insufficient to support her conviction. We disagree and affirm her conviction for the reasons that follow.

The elements required to establish defendant's guilt of the offense of possession of a controlled substance are: (1) the identity of the substance at issue, i.e., that it is a controlled substance in the proper amount; and (2) that defendant knowingly possessed that substance. 720 ILCS 570/402 (West 2000); see also People v. Hagberg, 192 Ill. 2d 29, 34 (2000). When a defendant challenges the sufficiency of the evidence, it is our task to determine 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. People v. Collins, 106 Ill. 2d 237, 261 (1985); Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). Defendant argues that the State's evidence in this case was insufficient to prove either element beyond a reasonable doubt and, accordingly, asks that this court reverse her conviction.

We begin by noting that there are two components to defendant's argument regarding the first element of the offense - the identity of the substance at issue. First, defendant claims that the State failed to establish an adequate foundation for the admission of the results of the test identifying the substance as cocaine in the proper amount because neither the tester's qualifications nor the "evidentiary basis" for his opinion was ever established. Second, she claims that the State failed to establish the existence of an adequate chain of custody between the substance recovered at the apartment and that tested by the laboratory, specifically asserting that the physical descriptions of the items were at variance with one another. Defendant claims that, as a result of these alleged deficiencies, the State failed to prove beyond a reasonable doubt the element of the identity of the substance. Thus, it is our task in this case to review the record, in the light most favorable to the prosecution, for evidence supporting the court's finding that the substance recovered from the apartment was indeed cocaine in the amount of 15 to 100 grams. For the reasons that follow, we find that the evidence in this case was sufficient to convince the court, beyond a reasonable doubt, of this fact.

We first address defendant's argument regarding the admission of the stipulated expert testimony, as our determination of that issue serves as a predicate for our discussion of the "chain of custody" component of defendant's argument. Defendant claims that the stipulated testimony was admitted without "the necessary proof," citing People v. Raney, 324 Ill. App. 3d 703 (2001). Specifically, defendant claims that the stipulation in this case was entered without the State having offered evidence: (a) identifying what tests were actually performed on the subject substance; (b) indicating that the tests actually performed were of a type generally accepted and relied upon in the field; (c) showing that the equipment used to perform the test was functioning properly at the time the tests were performed; (d) explaining why the opining expert believed the results of the tests were accurate; or (e) identifying the tester's qualifications.

In Raney, the court found that the State failed to establish the proper foundation for the admission of the results from a gas chromatography mass spectrometer (GCMS) machine that was used to test the suspect substance in a drug possession case. The Raney court found that there was no proof as to the method used to record the data provided by the GCMS machine; whether the machine was functioning properly at the time of the test; how the machine was calibrated; or why the expert knew the results were ...


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