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People v. Cunningham

October 7, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
BRIAN CUNNINGHAM, APPELLEE.



The opinion of the court was delivered by: Justice Garman

PUBLISHED

Docket No. 94971-Agenda 1-May 2004.

After a bench trial, defendant, Brian Cunningham, was convicted of possession of a controlled substance. 720 ILCS 570/402 (West 1998). The appellate court, with one justice dissenting, reversed, holding the evidence was insufficient to sustain the conviction. 333 Ill. App. 3d 1045. We allowed the State's petition for leave to appeal pursuant to Rule 315. 177 Ill. 2d R. 315. We now reverse the appellate court and affirm defendant's conviction.

BACKGROUND

The evidence at trial consisted of the testimony of Officer David Pfest of the Chicago police department, followed by a stipulation. The stipulation established that the "narcotics *** testified to in this case" consisted of 2.9 grams of a chunky substance in a clear plastic packet that chemical analysis proved to contain cocaine. The State offered Pfest's testimony to establish defendant possessed the cocaine with the intent to deliver.

Pfest testified as follows. At about 12:30 a.m. on December 15, 1998, he was on patrol in plain clothes with a partner in a vehicle. In the 3800 block of Elston Avenue, near Leona's Restaurant, a white male citizen in his late 20s or early 30s "flagged down" the vehicle. To the best of Pfest's recollection, the citizen was dressed in "blue jeans and just a t-shirt." The citizen informed Pfest that a man nicknamed "Gumby" was selling narcotics and that Pfest could arrange to buy narcotics from Gumby by calling a phone number the citizen provided.

After conferring with fellow officers and setting up surveillance, Pfest called the number the citizen gave him and asked to buy an "eight ball," which is an eighth of an ounce, or approximately 3.5 grams, of cocaine. A female responded by asking Pfest if he was Kevin from Elston by Leona's. Pfest said he was Kevin. The female told him Gumby was not there and to call back in 15 minutes. Pfest called back in 15 minutes. This time a male answered. Pfest again asked for an eight ball. The male replied that he needed to go home to get it, and that in 15 minutes he would pull up near Leona's and honk his horn.

Approximately 15 minutes later a station wagon arrived where Pfest was waiting near Leona's and the driver honked the horn. Pfest removed his radio from his pocket and used it to tell fellow officers that the suspect had pulled up. He then approached the station wagon. As he did, he saw defendant in the driver's seat holding a clear plastic baggie containing a yellowish white substance. When Pfest got within about four feet, defendant appeared to recognize Pfest. Pfest had seen defendant before and may have arrested him on a prior occasion. Defendant's eyes widened and he looked down the street in the direction of approaching police cars. Defendant then threw the baggie to the floor of the car. Pfest ordered defendant out of the car and arrested him. Another officer seized the baggie.

Pfest could not recall who was his partner that evening. Nor could he recall on whose phone he made the two calls to Gumby. The trial court found Pfest's testimony lacked "corroboration" and thus was insufficient to prove intent to deliver. However, the court found the testimony sufficient to prove the lesser-included offense of possession. The appellate court reversed, finding that the "whole scenario as described by Officer Pfest [is] *** unworthy of belief." 333 Ill. App. 3d at 1050. The court based this finding on specific parts of the testimony that it found incredible. The State contends it was error for the appellate court to review Pfest's credibility at all.

We granted leave to appeal to consider the State's argument that the fact finder's determination that a witness is credible is conclusive. For reasons that follow, we reject the State's argument. Nevertheless, we reverse the judgment of the appellate court because we find the record evidence sufficient under the standard of review.

ANALYSIS

The due process clause of the fourteenth amendment to the United States Constitution requires that a person may not be convicted in state court "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364, 25 L.Ed. 2d 368, 375, 90 S.Ct. 1968, 1073 (1970). When a court reviews a conviction to determine whether the constitutional right recognized in Winship was violated, it must ask "whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318, 61 L.Ed. 2d 560, 573, 99 S.Ct. 2781, 2788-89 (1979). In other words, the question 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." (Emphasis in original.) Jackson, 443 U.S. at 319, 61 L.Ed. 2d at 573, 99 S.Ct. at 2789. We have adopted the Jackson formulation of the standard of review for claims that the evidence was insufficient to sustain a conviction. People v. Collins, 106 Ill. 2d 237, 261 (1985). The Jackson standard applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217 (2002).

The State argues that, under the Jackson standard, the fact finder's determination that a witness is credible is conclusive. The State points out that Jackson requires a reviewing court to view the evidence in the light most favorable to the prosecution, and argues that this requirement precludes reviewing the credibility of witnesses. The State argues that reading a cold transcript cannot justify disbelieving testimony the fact finder actually heard and has accepted. We disagree.

As a threshold matter, defendant argues that the State has forfeited its claim that the trial court's credibility determination is conclusive. The State did not raise that claim in the appellate court. Defendant's argument has no merit. When the appellee in the appellate court appeals to this court, it " `may raise any question properly presented by the record to sustain the judgment of the trial court, even though those questions were not raised or argued in the Appellate ...


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