Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 10 CR 15831 The Honorable William Hooks, Judge Presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Neville and Mason concurred in the judgment and opinion.
HYMAN PRESIDING JUSTICE
¶ 1 A jury convicted defendant Earnest Branch of possession of a controlled substance with intent to deliver under section 401(c)(1) of the Illinois Controlled Substances Act (720 ILCS 570/401(c)(1) (West 2010)). He was sentenced to six years in prison. On appeal, Branch contends that the State failed to prove that he intended to deliver the narcotics found in his possession. We affirm. The evidence sufficiently supports Branch's conviction for possession of a controlled substance with intent to deliver.
¶ 2 Background
¶ 3 Branch was charged by information with possession of a controlled substance with intent to deliver in that he "unlawfully and knowingly possessed with intent to deliver 1 gram or more but less than 15 grams of a substance containing a certain controlled substance, to wit: heroin."
¶4 At trial, Chicago police officer Kathleen McCann testified that at about 12:30 p.m. on August 11, 2010, she and five other officers were working undercover surveillance near the intersection of Augusta Boulevard and Long Avenue. As she was stopped in traffic heading westbound, she saw Branch walking eastbound on the south side of the street. McCann observed Branch cut into the backyard of a vacant residence, reach down and remove an item and then walk back toward the corner of Augusta and Long Avenue. She pulled her car over and observed Branch make a suspected hand-to-hand narcotics transaction with an unidentified individual, exchanging the item for an unknown amount of money. She observed Branch engage in "at least eight" transactions. McCann then radioed Officer Myron Kuykendall and Officer Reginald Dukes, who were working as enforcement officers.
¶ 5 Officer Edward Daniels, who was also working as a surveillance officer, testified that he was parked 10 to 15 feet from Branch when he observed Branch engage in 8 suspected narcotics transactions over a period of 45 minutes. He was not able to see the amount of money that was being exchanged during each transaction or the item that was being tendered. Branch began walking southbound after the transactions, and Daniels, through his rear-view mirror, saw Branch give an unknown amount of cash to a man on a bicycle before going westbound down an alley.
¶ 6 Officer Kuykendall testified that he and Officer Dukes received radio communication regarding Branch's suspected narcotics transactions, and drove westbound into the alley between Augusta Boulevard and Iowa Street. Kuykendall exited the car, and told Branch and the man on the bicycle to stop. Branch looked in Kuykendall's direction and dropped an object from his hand. Kuykendall recovered the item and arrested him. The man on the bicycle fled, and was never captured. Kuykendall recovered a clear plastic bag containing 11 capsules of suspected heroin and $18 in cash.
¶ 7 Forensic chemist Elaine Harris tested 7 of the 11 capsules, and they weighed 1.1 grams and tested positive for heroin. She estimated all 11 capsules weighed 1.7 grams.
¶ 8 On appeal, Branch contends that the State failed to prove the element of intent to deliver beyond a reasonable doubt.
¶ 9 Analysis
¶ 10 When a defendant challenges the sufficiency of the evidence to sustain his or her conviction, the relevant question on review is whether, after considering the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill.2d 1, 8 (2011). The trier of fact determines the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence. People v. Howery, 178 Ill.2d 1, 38 (1997). A conviction only will be overturned where the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt. Beauchamp, 241 Ill.2d at 8.
¶ 11 To prove defendant guilty of the offense of possession of a controlled substance with intent to deliver, the State must prove the defendant (1) had knowledge of the presence of the narcotics; (2) had possession or control of the narcotics; and (3) intended to deliver the narcotics. People v. Robinson, 167 Ill.2d 397, 407 (1995); 720 ILCS 570/402(c) (West 2010). The trier of fact may rely on reasonable inferences to determine knowledge and possession. People v. Smith, 191 Ill.2d 408, 413 (2000). The element of "intent to deliver" is usually proved by circumstantial evidence because knowledge and possession of drugs are rarely subject to direct proof. People v. Cruz, 129 Ill.App.3d 278, 286 (1984) (Possession "is an inherently surreptitious affair, and common sense must illuminate the dark.") Several factors have ...