Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 12 CR 4873. The Honorable Thaddeus L. Wilson, Judge, presiding.
For Plaintiff-Appellee: Anthony O'Brien, Iris G. Forosie, Cook County State's Attorney, Chicago, IL.
For Defendant-Appellant: Heidi Linn Lambros, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant Charles Pittman was convicted of two counts of possession of a controlled substance with intent to deliver and sentenced to two concurrent terms of 11 years in prison. On appeal, Pittman contends that (i) the State failed to prove his intent to deliver beyond a reasonable doubt, (ii) his sentence is excessive, and (iii) his two convictions violate the one-act, one-crime principles set forth in People v. King, 66 Ill.2d 551, 566, 363 N.E.2d 838, 6 Ill.Dec. 891 (1977). Pittman also contends that his
fines, fees, and costs order should be corrected.
[¶2] We find that the State sufficiently proved Pittman's intent to deliver through evidence of the quantity of the drug recovered, its packaging, and officers' description of an attempted drug transaction. We also find Pittman's sentence appropriate as it fell within the statutory range and the record shows the trial court considered all mitigating and aggravating factors. We conclude that Pittman's two convictions for possession of a controlled substance with intent to deliver do not violate King because his actual possession of the first set of drugs and his constructive possession of the second set constitute two separate acts. We affirm and correct the fines and fees order.
[¶4] The charges against Pittman arose from an encounter between Pittman and three Chicago police officers near a vacant building and lot on February 15, 2012. During a brief chase, officers observed Pittman throw packets holding 1.8 grams of heroin into a nearby garbage can. Following Pittman's arrest he led the officers to a hidden container in a neighboring lot containing an additional 3.1 grams of heroin.
[¶5] At trial, Officer Robert Vahl testified that while on patrol with Chicago police officers Barsch and Kakos, in the 5600 block of South Marshfield Avenue, Chicago, around 1 p.m. on February 15, 2012, Vahl saw three or four middle-aged men standing in a line in front of 5618 South Marshfield. Based on his 13 years of experience, he believed a narcotics transaction was in the offing. Pittman approached the men from a neighboring vacant lot. Once Pittman met the group, one of the individuals handed Pittman cash. After receiving the money, Pittman looked down the street toward the police officers and fled through the vacant lot. Vahl chased Pittman with Officer Kakos following directly behind. On reaching the alley behind the lot, Pittman threw a plastic bag containing small, blue items into an open garbage can. Vahl caught Pittman and secured him five feet from the can.
[¶6] Following the chase, Vahl returned to the garbage can and found eight small, blue-tinted Ziploc bags containing what he believed to be heroin. The eight packets were taped together in a line 8 to 10 inches long. Vahl testified that the packaging and amount were consistent with an active participation in the sale of narcotics. He also testified that heroin buyers usually possess one to two bags of heroin.
[¶7] After advising Pittman of his Miranda rights, Vahl asked if any more narcotics were in the area. Pittman offered to direct the officers to more narcotics in exchange for his release. Pittman directed the officers to a boat in the adjacent vacant lot. After placing Pittman in the police car, Vahl and Kakos searched the boat. Finding nothing, the officers returned to Pittman who then directed them to the boat's wheel well. Kakos found a Tic Tac container taped to a magnet hidden in the boat's wheel well. Inside the container were 13 blue bags identical to the 8 bags recovered from the garbage can. Vahl did not find any money on Pittman or in the area, and did not see Pittman throw or drop any currency.
[¶8] The State then called Officer Kakos, who testified consistently with Officer Vahl.
[¶9] The parties stipulated that the first eight bags contained 1.8 grams of heroin and the 13 bags from the Tic Tac container contained 3.1 grams of heroin. After the State ...