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People v. Holliday

Court of Appeals of Illinois, Third District

June 20, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
XAVIER LEE HOLLIDAY, Defendant-Appellant.

          Appeal from the Circuit Court of the 14th Judicial Circuit, Rock Island County, Illinois. Circuit No. 14-CF-255 Honorable Walter D. Braud, Judge, presiding.

          JUSTICE CARTER delivered the judgment of the court, with opinion. Justices Holdridge and McDade concurred in the judgment and opinion.

          OPINION

          CARTER, JUSTICE

         ¶ 1 Following a bench trial, defendant, Xavier Lee Holliday, was found guilty of the Class 2 felony of unlawful possession with intent to deliver more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/5(e) (West 2012)). Defendant was sentenced to four years of imprisonment and two years of mandatory supervised release (MSR). Defendant appeals, arguing that his conviction should be reduced to the civil law violation of possession of not more than 10 grams of a substance containing cannabis (720 ILCS 550/4(a) (West 2016) (effective July 29, 2016)) because the State's evidence of the weight of the seized drug only established that defendant had possessed an unspecified amount of cannabis, the State failed to prove defendant had an intent to deliver, and he was "entitled to be sentenced under the law in effect at the time of sentencing." We affirm, modifying defendant's conviction to the lesser included offense of a civil violation for possession of not more than 10 grams of any substance containing cannabis (720 ILCS 550/4(a) (West 2016)), vacating defendant's sentence and MSR term, and resentencing defendant to a fine of $100.

         ¶ 2 I. BACKGROUND

         ¶ 3 At defendant's bench trial, the evidence showed that on December 5, 2013, Rock Island police officers went to an apartment in Moline, Illinois, to locate defendant in an attempt to execute a warrant for defendant's arrest. Officer Justin Chisholm was able to see in the apartment's living room window and observed defendant in the apartment. Chisholm informed other officers via radio that he observed defendant inside the apartment. Officer Jesse Doty and another officer knocked on the apartment door, but there was no response for two minutes. During this time, Chisholm observed defendant look out of the peep hole of the front door and then walk toward the back of the apartment out of sight. Chisholm radioed the other officers to inform them that defendant had gone to the rear of the apartment.[1] A female opened the apartment door and allowed officers to enter. Doty proceeded toward the back of the apartment and saw a man, who he believed to be defendant, jump out of the window. Doty radioed to the other officers to inform them that defendant had jumped out of the window. Doty then ran outside in pursuit of defendant.

         ¶ 4 Police officers searched the area immediately surrounding the apartment building. Three plastic bags of a plant substance and a small blue scale were found outside the window from which defendant had jumped. Chisholm removed the plant substance from the three bags and placed the substance into one bag, which was sent for testing to determine the identity of the substance. Chisholm placed the three empty bags into an envelope, which was subsequently sent for fingerprint testing. Inside the apartment, police also found a small amount of suspected marijuana in the kitchen (a gram or two) and a box of small empty plastic bags.

         ¶ 5 Michelle Dierker, the forensic scientist who tested the plant substance, testified as an expert in the identification of controlled substances and cannabis. Dierker weighed the "plant material" without any packaging and then tested the "plant material" for the presence of cannabis. The weight of the plant material was 1048 grams. In determining whether the "plant material" was cannabis, Dierker looked at a sample of the substance under a microscope for "identifying characteristics" and determined that the substance was positive for the presence of cannabis. Dierker performed "a chemical color test" on a sample of the plant substance, and she determined that the substance was positive for the presence of cannabis. Dierker testified, "the 1048 grams of plant material contained in [the bag submitted for testing] was positive for the presence of cannabis." Dierker confirmed that her opinion was rendered to a reasonable degree of scientific certainty. Forensic scientist, Chris Jacobson, testified that defendant's fingerprint was on one of the empty baggies that had been submitted for fingerprint analysis.

         ¶ 6 In ruling, the trial court found that, based on circumstantial evidence, the cannabis that police found outside the apartment window was caused to be there by defendant; that the amount of cannabis was 1048 grams, with a value of approximately $3000; and that the testimony of Jacobson regarding the defendant's fingerprint being on one of the bags was credible. The trial court further found that the amount of marijuana was too much for personal use and that the defendant's possession of the marijuana "was for the purpose of sale." The trial court concluded that the State had proven defendant guilty of the Class 2 felony of possession with intent to deliver more than 500 grams but not more than 2000 grams of a substance containing cannabis (720 ILCS 550/5(e) (West 2012)) beyond a reasonable doubt. Defendant filed a motion to reconsider, which the trial court denied on June 2, 2016. Additionally, on June 2, 2016, the trial court sentenced defendant to four years of imprisonment with two years of MSR. Defendant appealed.

         ¶ 7 II. ANALYSIS

         ¶ 8 On appeal, defendant argues that his conviction for the Class 2 felony of unlawful possession with the intent to deliver more than 500 grams but not more than 2000 grams of a substance containing cannabis should be reduced to the lesser included offense of a civil law violation for the unlawful possession of not more than 10 grams of cannabis. Defendant contends that the State failed to prove the amount of cannabis in his possession beyond a reasonable doubt to support his conviction and failed to prove intent to deliver. The State argues that it sufficiently proved that the 1048 grams of plant material submitted to the forensic laboratory for testing was cannabis by way of the testimony of forensic scientist, Michelle Dierker, and that the 1048 grams of plant material that had been submitted to her for testing was cannabis. The State further argues that the circumstances under which the 1048 grams of plant material was found additionally supports the trial court's conclusion that defendant had been in possession of 1048 grams of cannabis. The State also argues that defendant's intent to deliver was sufficiently proven because 1048 grams of cannabis is too great of an amount to be reasonable for personal use.

         ¶ 9 A. Amount of Cannabis

         ¶ 10 Essentially, defendant is challenging the sufficiency of evidence in this case. In reviewing a challenge to the sufficiency of the evidence, the relevant 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. People v. Collins, 106 Ill.2d 237, 261 (1985). A conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory that there remains a reasonable doubt of defendant's guilt. People v. Ross, 229 Ill.2d 255, 272 (2008).

         ¶ 11 When a defendant is charged with possession of a specific amount of an illegal drug with intent to deliver and the charge contains a lesser included offense of possession of a smaller amount, then the weight of the seized drug is an essential element of the crime that must be proven beyond a reasonable doubt. People v. Jones, 174 Ill.2d 427, 428-29 (1996). However, a chemist does not need to test every sample seized in order to render an opinion as to the makeup of the whole. Id. at 429. Instead, "random testing is permissible when the seized samples are sufficiently homogenous so that one may infer beyond a reasonable doubt that the untested samples contain the same substance as those that are conclusively tested." ...


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