Appeal from Circuit Court of McLean County No. 11CF56 Honorable James E. Souk, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Steigmann
Carla Bender 4th District Appellate Court, IL
PRESIDING JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justice Knecht concurred in the judgment and opinion.
Justice Appleton concurred in part and dissented in part, with opinion.
¶ 1 Following a July 2011 trial, a jury convicted defendant, Kenneth Johnson, of (1) unlawful possession with intent to deliver a controlled substance (more than 100 grams but less than 400 grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(B) (West 2008)) and
(2) unlawful possession of a controlled substance (more than 15 grams but less than 100 grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(A) (West 2008)). The trial court thereafter sentenced defendant to 10 years in prison.
¶ 2 Defendant appeals, arguing that the State failed to prove him guilty beyond a reasonable doubt. Because we conclude that the State failed to present evidence that defendant intended to deliver the heroin under the theory the State presented to the jury, we affirm in part as modified, vacate in part, and remand with directions.
¶ 4 In January 2011, the State charged defendant with (1) unlawful possession with intent to deliver a controlled substance (more than 100 grams but less than 400 grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(B) (West 2008)) (count I) and (2) unlawful possession of a controlled substance (more than 15 grams but less than 100 grams of a substance containing heroin) (720 ILCS 570/401(a)(1)(A) (West 2008)) (count III). Defendant's case proceeded to a July 2011 jury trial, at which the State presented the following evidence and argument.
¶ 5 In his opening statement, the prosecutor outlined for the jury the State's charges and the evidence that it planned to offer to satisfy its burden of proof. In that pursuit, the prosecutor explained that the issues before the jury were as follows: "whose [heroin] was it and who knew about it." The prosecutor concluded his opening remarks by noting that the State would be asking the jury to return a guilty verdict on both charges based on the fact that defendant was "guilty of constructively possessing this heroin." Defendant's opening statement focused primarily on explaining that the State's key witness, upon whom the State's case "depend[ed] entirely," did not support the charges against defendant.
¶ 6 The State called Illinois State Trooper Scott Ahrens, who testified that at approximately 1:20 a.m., he initiated a traffic stop for a speeding violation on Interstate 55. Ahrens found three people in the vehicle, Stephen McCrady, Rhonda Simmons, and defendant. McCrady was in the driver's seat, Simmons was in the front passenger seat, and defendant was in the backseat of the vehicle. Ahrens ordered McCrady to exit the vehicle because he had parked partially on the interstate highway and it was "obvious from the get-go" that McCrady did not have a driver's license. Ahrens thereafter ordered defendant to move the vehicle onto a nearby exit ramp.
¶ 7 Illinois State Trooper Shadd Gordon testified that he assisted Ahrens in the traffic stop. When he arrived on the scene, McCrady was inside Ahrens' vehicle and Ahrens was handcuffing defendant. Ahrens asked Simmons to exit the vehicle, and she did so, carrying her purse and a McDonald's bag. Ahrens told Simmons that she could leave her things in the vehicle. Simmons responded by placing her purse in the vehicle but tossing the McDonald's bag on the ground beside the vehicle. She thereafter picked the bag up off the ground but left a cup that she had previously thrown out the window of the vehicle. Gordon retrieved the cup and found a black metal canister inside of it, which contained what would later be identified as heroin. Gordon later found an additional amount of heroin in a pill bottle inside Simmons' purse. (Defendant stipulated to the fact that the substances recovered were heroin.)
¶ 8 Ahrens asked Simmons whether "everything" was hers, and she responded by nodding her head to indicate, "yes." Simmons later said that she knew about the black metal container and the pill bottle, but did not know about the cup; she explained to Ahrens that McCrady had ordered her to hold the heroin when they left Chicago because McCrady and defendant believed that women were less likely to be searched if confronted by the police. Simmons stated that she was concerned when Ahrens stopped them for speeding, and she wanted to get rid of the heroin. However, when defendant moved the vehicle on to the exit ramp, defendant ordered her to hold onto the heroin. Ahrens then interviewed defendant, who gave inconsistent accounts of why the three were traveling from Chicago.
¶ 9 Simmons testified that she left St. Louis with McCrady and defendant to get heroin from someone McCrady knew in Chicago. She said that the reason defendant came along was to be the driver, given that neither she nor McCrady had a driver's license. The group passed around a small bottle of heroin for their personal use on the way to Chicago and on the return trip. All three knew why they were traveling to Chicago; McCrady wanted to purchase heroin from his source. As to why they traveled to Chicago and who intended to keep the heroin to distribute, Simmons testified on cross-examination as follows:
"[SIMMONS:] First of all, I knew exactly what [McCrady] was doing.
*** [DEFENSE COUNSEL:] He told you to hold [the heroin]? [SIMMONS:] Yes. [DEFENSE COUNSEL:] And when you testified earlier, you said you took it and held it because [McCrady] told you to?
[SIMMONS:] Yes. [DEFENSE COUNSEL:] Right? You're kind of in a position where you're expected to do what he tells you to do?
[SIMMONS:] Well first of all, that's my kid's father. He supported my habit.
[DEFENSE COUNSEL:] Okay. *** I guess we should explain; maybe the jury knows, maybe they don't. But when you say he [']supported your habit['], means he bought the heroin for you and let you use it, right?
[SIMMONS:] He didn't buy the heroin for me, he- [DEFENSE COUNSEL:] No, when you say- [SIMMONS:] He supplied me to make sure I wasn't sick every day. That's what he did.
[DEFENSE COUNSEL:] Okay. But that means he gave you heroin every day so that you could use it, right?
[SIMMONS:] Right. [DEFENSE COUNSEL:] That's what you mean? All right. But [McCrady] was the one giving you heroin before, and you indicated you were clean for a while, and when you started ...