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People v. Anderson

Court of Appeals of Illinois, Fourth District

May 30, 2018

TYYUAN ANDERSON, Defendant-Appellant.

          Appeal from the Circuit Court of Macon County No. 15CF764 Honorable Jeffrey S. Geisler, Judge Presiding.

          PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Steigmann and DeArmond concurred in the judgment and opinion.



         ¶ 1 Defendant, Tyyuan Anderson, appeals from his convictions of armed violence, unlawful possession of a weapon by a felon, and unlawful possession of a controlled substance with intent to deliver. In his direct appeal, defendant challenges the sufficiency of the State's evidence, the comments of the prosecutor during closing argument, the constitutionality of his sentence, whether there was a violation of the one-act, one-crime doctrine, and the imposition of fines and associated credits. We affirm defendant's convictions and sentence but vacate the improperly imposed fine and remand for the trial court to amend the sentencing judgment and impose the fine authorized by statute with the application of the appropriate per diem credit.

         ¶ 2 I. BACKGROUND

         ¶ 3 On July 1, 2015, the State charged defendant with (1) armed violence (720 ILCS 5/33A-2(a), 33A-3(a) (West 2014)) (count I), a Class X felony, for knowingly possessing cocaine (720 ILCS 570/402 (West 2014)) while armed with a handgun; (2) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2014)) (count II), a Class 3 felony, for knowingly possessing a firearm after having been convicted of possession of a stolen motor vehicle in Macon County case No. 14-CF-783; (3) unlawful possession of a controlled substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2014)) (count III), a Class 1 felony, for knowingly possessing with the intent to deliver between 1 and 15 grams of cocaine; (4) unlawful possession of a controlled substance (720 ILCS 570/402(c) (West 2014)) (count IV), a Class 4 felony, for knowingly possessing less than 15 grams of cocaine; (5) unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(b) (West 2014)) (count V), a Class A misdemeanor, for knowingly and unlawfully possessing with the intent to deliver between 2.5 and 10 grams of cannabis; and (6) unlawful possession of cannabis (720 ILCS 550/4(b) (West 2014)) (count VI), a Class B misdemeanor, for knowingly and unlawfully possessing between 2.5 and 10 grams of cannabis.

         ¶ 4 The charges against defendant stem from a June 24, 2015, encounter between detectives from the Decatur Police Department's street-crimes unit and three males, one of whom was defendant. The three males were walking in the middle of a street at approximately 11:30 p.m. According to the officers' sworn statements, one officer asked defendant to come toward him. Rather than comply with the officer's request, defendant fled on foot in the opposite direction. Both officers gave chase and were able to take defendant into custody after he fell over a brush pile in a nearby residential backyard. Officers found a black Glock 27 handgun lying approximately two to three feet in front of defendant. In defendant's right pocket, officers found seven bags of cannabis and a separate bag containing nine individually packaged bags of suspected crack cocaine. At the time of his arrest, defendant was on probation for a stolen-vehicle conviction (Macon County case No. 14-CF-783).

         ¶ 5 Defendant's jury trial began on November 10, 2015. Detective Scott Rosenberry testified he and Detective James Callaway were on a "proactive enforcement operation" at approximately 11:30 p.m. on June 24, 2015, in cooperation with other Decatur police officers focusing on high-crime areas within the city. The detectives were dressed in plain clothes and black tactical vests with "police" written on the front and back. They were in a white unmarked Chevrolet Impala equipped with interior red and blue lights, a siren, and a driver-side mounted spotlight. As they traveled westbound in the 400 block of West Leafland Avenue, they observed three males walking in the roadway. Rosenberry used his spotlight to "light up the area, " and the officers got out of the vehicle to approach the subjects. Rosenberry called to one of the subjects, later identified as defendant, to come to him. Defendant, who was wearing shorts and a hooded sweatshirt with the hood up and pulled tightly to reveal only the front portion of his face, fled on foot. Rosenberry said he yelled, " 'Police. Stop, ' " but defendant disregarded his commands and continued to run. Defendant ran through the backyards of nearby houses but fell over a large brush pile and ended up on his stomach. Rosenberry said he noticed defendant kept his hands "tucked inside towards the front of his waistband near his stomach" as he ran. Rosenberry put defendant's arms behind his back as defendant lay on the ground until Callaway arrived and secured defendant in handcuffs. Upon illuminating the area with a flashlight, the officers saw a Glock 27 handgun with a 15-round magazine lying two to three feet in front of defendant. The gun was secured and later sent to the Illinois State Police (ISP) crime lab for fingerprint testing.

         ¶ 6 Rosenberry said the officers conducted a search incident to defendant's arrest and found a clear plastic Baggie in the pocket of defendant's shorts containing seven individually wrapped packages of a substance, which was field-tested positive for cannabis, and a separate knotted Baggie with nine individually packaged, field-tested-positive rocks of crack cocaine. The State introduced as exhibits photographs of the contraband and the contraband itself.

         ¶ 7 On cross-examination, Rosenberry testified the foot pursuit of defendant lasted no more than 20 seconds before he fell. He said defendant was wearing "basketball shorts, " which, as far as he could remember, were not secured with a belt. Rosenberry did not see defendant holding a gun nor did he see defendant throw or drop a gun. Rosenberry said he was "still securing" defendant while Callaway searched him. Rosenberry saw Callaway take the drugs and a cellular telephone from defendant's pocket. Rosenberry identified the handgun during his testimony and testified it appeared the gun had dirt in the "checkering on the grip." The Baggie, containing all of the drugs found, was knotted at the top and tied shut. Inside the bag were seven individual knotted Baggies containing cannabis. An eighth bag was knotted closed and contained nine individual Baggie corners with a rock of crack cocaine in each.

         ¶ 8 Decatur police officer Steve Hagemeyer testified he was on patrol that evening and responded to the scene after the detectives' call for assistance. When he approached the backyard where defendant had been apprehended, he shown his flashlight around the area and saw a Glock semiautomatic handgun lying two to three feet from defendant. On cross-examination, Hagemeyer testified he did not know how the gun came to be in that location nor did he see defendant with the gun at any time.

         ¶ 9 Detective James Callaway testified, corroborating much of Rosenberry's testimony. He said they attempted to make contact with defendant and the two other males because they were "improperly walking in the roadway." He said when Rosenberry asked defendant to approach them, both officers were out of the vehicle and the word "Police" on their vests would have been visible. Callaway testified consistently with Rosenberry's testimony regarding the foot pursuit, apprehension of defendant, discovery of the gun, and search of defendant's pockets yielding the drugs.

         ¶ 10 Callaway spoke with defendant after his arrest. Defendant told Callaway he ran from them because he "thought someone was after him." He said "he guessed" he realized it was the police during the pursuit. Callaway identified the gun and the bags of drugs as those recovered at the scene.

         ¶ 11 On cross-examination, Callaway testified he secured a search warrant for the cellular phone found in defendant's pocket in an attempt to find information on the gun or drugs. Callaway did not find any incriminating photographs or text messages. On the night of the incident, Callaway did not see defendant with the gun, and defendant denied carrying it. However, in Callaway's opinion, defendant dropped the gun when he fell. The gun was tested for latent fingerprints but not deoxyribonucleic acid (commonly known as DNA). According to Callaway, defendant told him he ran because he thought "someone was trying to get him" because "of everything going on." Callaway confirmed there had been recent shootings in the area. When Callaway informed defendant he would be charged with armed violence, defendant stated he had not harmed anyone. Defendant said he knew nothing about a gun. ¶ 12 Kristin Stiefvater, a drug chemist with the ISP crime lab, testified she weighed the substance believed to be crack cocaine and then performed a color test and mass spectrometry. The total weight of the nine separate plastic bags was 0.7 grams and the contents tested positive for cocaine.

         ¶ 13 Gary Havey, a forensic scientist also with the ISP crime lab, testified he tested the handgun for latent fingerprints and could conclude only that the handgun had been touched. He found "ridge detail" on the handgun but nothing suitable to either identify or exclude any person.

         ¶ 14 Decatur police officer David Dailey testified as the State's expert in the field of narcotics distribution and use. Dailey said the majority of cocaine in Decatur comes from the source cities of Chicago and Indianapolis, whereas the majority of cannabis comes from California and Colorado. He said the typical dosage unit for crack cocaine is 0.2 grams and 0.5 grams for cannabis. The street value for crack cocaine is $100 per gram and $10 per gram for cannabis. After Dailey's review of the investigative reports in this case, he said in his opinion, to a reasonable degree of certainty, the cocaine and cannabis were possessed with the intent to distribute. His opinion was based on the weight and packaging of each substance in addition to the absence of paraphernalia. He said without paraphernalia, defendant had no means to consume either drug. On cross-examination, Dailey testified the street value of the drugs found on defendant totaled $126.70, $70 of cocaine and $56.70 of cannabis.

         ¶ 15 At the close of the State's case, the trial court read two stipulations to the jury. First, the parties agreed defendant had been convicted of a prior felony on June 24, 2015. Second, Decatur police officer Troy Kretsinger, an expert in the field of cannabis identification, determined to a reasonable degree of scientific certainty that the substance weighing 5.6 grams was cannabis but, if called to testify, he would have no basis to form an opinion regarding defendant's intent for its use. The State rested.

         ¶ 16 Defendant moved for a directed verdict, arguing the State failed to present sufficient evidence for the jury to determine defendant possessed (1) the cannabis and cocaine with the intent to deliver, (2) the handgun, and (3) between 1 and 15 grams of cocaine to satisfy the Class 1 felony offense as charged in count III. The trial court denied defendant's motion, finding the State presented a prima facie case for counts I, II, IV, V, and VI, and indicated it would allow the State to instruct the jury as to count III on a lesser offense.

         ¶ 17 The State made an oral motion to amend count III to conform it with the evidence presented at trial. The State asked the information be amended to reflect that defendant allegedly possessed less than one gram of cocaine with the intent to deliver, changing the offense from a Class 1 felony to a Class 2 felony. The trial court granted the motion, allowing the State to amend count III by interlineation.

         ¶ 18 Defendant did not present any evidence. Prior to closing arguments, the trial court advised the jury of the following: "What the lawyers say to you during arguments is not evidence and should not be considered by you as evidence. The lawyers are permitted to draw conclusions and reasonable inferences from the evidence previously presented to you." During the State's closing argument, the prosecutor argued the concepts of "constructive possession" and "circumstantial evidence" as those terms related to the handgun. The prosecutor stated: "So to believe this defendant didn't possess the handgun, you would have to believe that it had just been lying loaded in this yard and just been left there. Is that reasonable? No. Do people leave loaded handguns laying in plain view in a yard? No-" Defense counsel objected, claiming "[t]hat's not in evidence. We had no testimony as to whether or not how often this occurs or it doesn't occur." The trial court overruled the objection.

         ¶ 19 The jury found defendant guilty of armed violence (count I), unlawful possession of a weapon by a felon (count II), unlawful possession of a controlled substance with intent to deliver (count III), and unlawful possession of cannabis with intent to deliver (count V).

         ¶ 20 On December 11, 2015, defendant filed a motion for a new trial, alleging several trial errors, including some of those presented in this appeal. At a hearing on December 30, 2015, the trial court denied defendant's motion. The court then proceeded to sentencing. Neither party presented evidence other than the presentence investigation report (PSI). The State recommended 20 years in prison for the armed-violence conviction and concurrent 10-year terms on the other merged offenses. Defendant recommended 15 years in prison for the armed-violence conviction and concurrent 5-year terms on the other merged offenses. After considering the PSI, defendant's criminal history, his age, and arguments of counsel, the court sentenced defendant to 16 years for the armed-violence conviction (count I), two concurrent five-year terms for the unlawful-possession-of-a-weapon-by-a-felon (count II) and the unlawful-possession-of-a-controlled-substance-with-the-intent-to-deliver (count III) convictions, and 60 days in jail for the unlawful-possession-of-cannabis-with-the-intent-to-deliver conviction (count V). The court ordered a $2, 000 mandatory assessment on count III, a $100 lab fee, and a $126 street-value fine. The court awarded defendant $995 in per diem credit to be applied toward his fines.

         ¶ 21 This appeal followed.

         ¶ 22 II. ANALYSIS

         ¶ 23 A. Possession of the Handgun

         ¶ 24 Defendant first contends the State failed to prove him guilty of armed violence and unlawful possession of a weapon by a felon because it failed to prove beyond a reasonable doubt he possessed the handgun. The police officers testified they never saw defendant with the handgun nor did they see him throw or drop the weapon. They only saw the handgun lying on the ground two to three feet from defendant when the area was illuminated by a flashlight. Defendant claims this evidence was insufficient to support the possession element of the offenses. We disagree.

         ¶ 25 Initially, we note the parties disagree over the standard of review. Defendant claims no relevant facts are in dispute and therefore our review is de novo. See People v. Smith, 191 Ill.2d 408, 411 (2000). On the other hand, the State contends questions of fact remain because factual inferences must be drawn from the evidence presented at trial. Because defendant is challenging the sufficiency of the evidence with regard to the elements required for his convictions, we agree with the State. De novo standard of review applies only when the facts are not in dispute and the defendant's guilt is a question of law. Smith, 191 Ill.2d at 411. "When considering a challenge to the sufficiency of the evidence in a criminal case, our function is not to retry the defendant. [Citation.] Rather, our inquiry 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 offense beyond a reasonable doubt. [Citation.] This means that we must allow all reasonable inferences from the record in favor of the prosecution. [Citation.] 'We will not reverse a conviction unless the evidence is so improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt.' " People v. Lloyd, 2013 IL 113510, ¶ 42 (quoting People v. Collins, 214 Ill.2d 206, 217 (2005)).

         ¶ 26 1. Armed Violence

         ¶ 27 The State charged defendant with armed violence predicated on unlawful possession of a controlled substance while armed with a handgun, a Category I weapon (720 ILCS 5/33A-1(c)(2), 33A-2(a) (West 2014)). Our supreme court has emphasized the purpose of the armed-violence statute is to deter felons from using dangerous weapons, thereby minimizing the deadly consequences that may result when a felony victim resists. People v. Condon, 148 Ill.2d 96, 109 (1992). That is, a defendant violates this statute by simply having possession of a firearm during the commission of another predicate felony. "Thus, for [the purpose of the statute] to be served, it would be necessary that the defendant have some type of immediate access to or timely control over the weapon." (Emphasis in original.) Condon, 148 Ill.2d at 110. "A felon with a weapon at his or her disposal is forced to make a spontaneous and often instantaneous decision to kill without time to reflect on the use of such deadly force. [Citation.] Without a weapon at hand, the felon is not faced with such a deadly decision." Condon, 148 Ill.2d at 109-10. The question here is whether the weapon found a few feet from defendant qualifies as the available access to the gun that the legislature sought to avoid. We will discuss further below.

         ¶ 28 2. Unlawful Possession of a Weapon by a Felon

         ¶ 29 The State also charged defendant with unlawful possession of a weapon by a felon. 720 ILCS 5/24-1.1(a) (West 2014). A defendant violates this statute if he "knowingly posses[es] on or about his person *** any firearm *** if the person has been convicted of a felony under the laws of this State or any other jurisdiction." 720 ILCS 5/24-1.1(a) (West 2014). Unlike the proof required for a conviction for armed violence, here, the State must prove beyond a reasonable doubt the defendant had a prior felony conviction. 720 ILCS 5/24-1.1(a) (West 2014). However, like the proof required for a conviction for armed violence, the State must prove beyond a reasonable doubt the defendant possessed the gun. This element may be ...

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