                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Brown, 2012 IL App (2d) 110640




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JEFFERY E. BROWN, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-11-0640


Filed                      September 12, 2012


Held                       Defendant’s conviction for unlawful possession of cocaine was upheld
(Note: This syllabus       over his contention that he was wearing his brother’s pants and did not
constitutes no part of     know drugs were in the pockets, but the imposition of the public defender
the opinion of the court   reimbursement fee was vacated on the ground that the required hearing
but has been prepared      was not held and the cause was remanded for an appropriate hearing.
by the Reporter of
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 10-CF-2658; the
Review                     Hon. Daniel B. Shanes, Judge, presiding.



Judgment                   Affirmed as modified in part and vacated in part; cause remanded.
Counsel on                 Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                           and Barry W. Jacobs, both of State’s Attorneys Appellate Prosecutor’s
                           Office, of counsel), for the People.


Panel                      JUSTICE HUDSON delivered the judgment of the court, with opinion.
                           Presiding Justice Jorgensen and Justice Birkett concurred in the judgment
                           and opinion.




                                             OPINION

¶1                                       I. INTRODUCTION
¶2          Following a jury trial in the circuit court of Lake County, defendant, Jeffery E. Brown,
        was convicted of unlawful possession of less than 15 grams of cocaine in violation of section
        402(c) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/402(c) (West 2010)).
        Defendant now appeals, arguing that his conviction of possession of cocaine should be
        overturned, that the $750 public defender reimbursement fee he was ordered to pay should
        be vacated, and that he should receive an additional $15 credit against his $500 statutory drug
        assessment. For the reasons that follow, we affirm defendant’s conviction; vacate the $750
        public defender reimbursement fee and remand for a hearing to determine whether the
        imposition of this fee is appropriate; and order an additional $15 to be credited against
        defendant’s $500 statutory drug assessment.

¶3                                        BACKGROUND
¶4          On August 4, 2010, defendant was arrested by Waukegan police for possession of
        cocaine. Defendant was released on bond on August 12, 2010, but was taken back into
        custody on September 2, 2010, after failing a drug test. Defendant was then released on
        September 9, 2010. The case proceeded to a jury trial on April 4, 2011, where the following
        testimony was given.
¶5          Officer Keith Lamanna testified first for the State. Lamanna, a member of the Waukegan
        police department, testified that he had been on patrol in his squad car at approximately 5
        p.m. on August 4, 2010, when he was dispatched to the intersection of May Street and
        Genesee Street in Waukegan. Lamanna subsequently related that he was dispatched to this
        location to investigate an unrelated complaint. In the course of this investigation, Lamanna
        made contact with defendant. Lamanna testified that he saw defendant walking his dog on

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     the street. He asked defendant to tie his dog to a fence and to come closer to the squad car
     so that Lamanna could speak with him. Defendant tied his dog to the fence, but then used a
     cellular telephone to either make a call or send a text message to someone else. Lamanna
     described defendant as “very hesitant” to approach the squad car, and Lamanna had to ask
     defendant two or three times to come closer to the car.
¶6       Lamanna testified that he searched defendant. He explained that he was not looking for
     drugs at the time; rather, the search was conducted in furtherance of his investigation of the
     unrelated complaint. Lamanna described defendant’s pants as “extremely baggy.” He found
     various items in the pockets, including five small plastic bags containing a “white rock-like”
     substance and a single plastic bag containing a “green plant material.” In the course of the
     search, Lamanna looked through defendant’s wallet. He then returned the wallet to
     defendant. Lamanna stated that he could not remember whether there was identification in
     the wallet. He said that, if the wallet had contained any identification documents with a name
     other than defendant’s, he probably would have noted that information in his report, as it
     would indicate “a suspicious kind of situation.”
¶7       After the State presented the testimony of a forensic chemist regarding the substances
     Lamanna recovered from defendant, it rested. The defense called its first witness, Gloria
     Lopez. Lopez testified that she worked for the Lake County public defender’s office as a
     legal secretary, interpreter, and notary. On October 13, 2010, a man identifying himself as
     Jason Brown came to the office and asked to make a statement. Lopez provided the man with
     a form and escorted him to a room, where she left him alone to write his statement. The man
     signed the form in her presence, and, after he provided sufficient proof of his identification,
     she notarized his statement. The statement consisted of the following:
         “I Jason Brown left the house at 12:00 or 1:00 and Jeffery Brown put on my jeans that
         had my wallet in it and some money with a small rock in it. Ever thing [sic] that was in
         it was not his it was my things [sic]. I didn’t know that he was putting on my jeans[.] I
         came home to get what I left in my jeans but Jeffery Brown had already put on my jeans
         and left.”
     Lopez stated that she could not remember the man’s height or weight or how he was dressed.
     She did not think she would be able to identify him if she saw him again. She also said that
     she was unsure if the handwritten content of the statement had been modified after she
     notarized it.
¶8       Defendant testified next on his own behalf. He stated that, on the day of the incident, he
     was living with his brother Jason in an apartment in Waukegan. His size and build were
     similar to Jason’s, and he often wore Jason’s clothes. In fact, the brothers stored their clothes
     in the same closet. On August 4, 2010, defendant stated, he left his apartment to walk his
     dog. He put on his brother’s jeans, which were “big baggy jeans.” He claimed that he did not
     check the pockets before putting them on and was unaware of any drugs in the pockets. He
     said that he saw his brother on a daily basis but never saw him possess, use, or sell any drugs.
¶9       Defendant related that Lamanna stopped him and asked if he could conduct a search.
     Defendant consented, and Lamanna found a wallet and some drugs in his pockets. Lamanna
     looked inside the wallet and found Jason’s identification card and two credit cards bearing


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       Jason’s name. Lamanna removed Jason’s identification card from the wallet and looked at
       it.
¶ 10       The jury found defendant guilty of unlawfully possessing less than 15 grams of cocaine.
       Defendant was sentenced to two years of probation pursuant to section 410 of the Act (720
       ILCS 570/410 (West 2010)) and ordered to pay a public defender reimbursement fee of $750
       and a $500 statutory drug assessment. Defendant filed a notice of appeal.

¶ 11                                      III. ANALYSIS
¶ 12       Defendant raises three issues on appeal. He argues that: (1) the State failed to prove
       beyond a reasonable doubt that he knew he possessed cocaine at the time of his arrest; (2)
       the $750 public defender reimbursement fee must be vacated because the trial court imposed
       it without first conducting a required hearing; and (3) he is entitled to an additional credit of
       $15 against his fine, due to him because of time spent in presentence custody. The State
       confesses error regarding the last two issues.

¶ 13                                    A. Reasonable Doubt
¶ 14        Defendant first argues that the State failed to prove beyond a reasonable doubt that he
       knew he possessed cocaine at the time of his arrest. When reviewing whether the State has
       presented sufficient evidence to sustain a conviction, we must determine whether a rational
       trier of fact could have found the elements of the crime beyond a reasonable doubt, viewing
       the evidence in the light most favorable to the State. People v. Cunningham, 212 Ill. 2d 274,
       278 (2004). A reviewing court will not retry a defendant. Cunningham, 212 Ill. 2d at 279.
       Instead, the credibility determinations of the trier of fact will be given great deference.
       People v. Ortiz, 196 Ill. 2d 236, 259 (2001). A guilty verdict may be supported not only by
       the evidence itself, but also by any reasonable inferences that may be drawn from that
       evidence. Cunningham, 212 Ill. 2d at 279-80.
¶ 15        Defendant was found guilty of possession of less than 15 grams of cocaine in violation
       of section 402(c) of the Act (720 ILCS 570/402(c) (West 2010)). One element of this offense
       is that defendant knew that he possessed the cocaine. See 720 ILCS 570/402(c) (West 2010)
       (“Except as otherwise authorized by this Act, it is unlawful for any person knowingly to
       possess a controlled or counterfeit substance or controlled substance analog.” (Emphasis
       added.)). Whether defendant knew he was in possession of drugs is a question for the trier
       of fact. People v. Schmalz, 194 Ill. 2d 75, 81 (2000). Knowledge is usually proven by
       circumstantial evidence and can rarely be shown by direct proof. Ortiz, 196 Ill. 2d at 260.
¶ 16        Here, defendant argues that the State failed to prove beyond a reasonable doubt that he
       knew about the cocaine in his pockets at the time of his arrest. While he acknowledges that
       he was in possession of the drugs, he asserts that he put on his brother’s pants unaware that
       the drugs were in the pockets. He claims that there is no direct evidence that he knew about
       the cocaine. He contends that his brother’s statement to Lopez, in which he averred that the
       pants belonged to him and not defendant, proves that the cocaine belonged to his brother.
       Based on the lack of evidence proving knowledge, defendant argues, no rational trier of fact
       could have found him guilty.

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¶ 17        We disagree. Viewing the evidence in the light most favorable to the State–as we must
       (Cunningham, 212 Ill. 2d at 278)–we find that a rational trier of fact could have concluded
       that defendant knew he was in possession of cocaine at the time of his arrest. First, a rational
       trier of fact could reject defendant’s testimony that he was wearing his brother’s pants.
       Defendant claimed that the fact that his brother’s wallet was in the pants was proof that the
       pants were not his own. However, Lamanna’s testimony shed doubt on this claim. Lamanna
       stated that he would have indicated in his police report whether he found another individual’s
       identification cards in the wallet possessed by defendant. However, Lamanna did not include
       this in his police report. A trier of fact could conclude from this that the wallet in defendant’s
       pants belonged to defendant and that, in turn, the pants did as well. Moreover, the jury was
       not required to accept the statement that defendant’s brother made to Lopez. It is, of course,
       primarily the responsibility of the trier of fact to assess the credibility of witnesses and
       resolve conflicts in the evidence. People v. Island, 385 Ill. App. 3d 316, 347 (2008).
¶ 18        Second, a rational trier of fact could conclude that the pants belonged to defendant based
       on the very fact that he was wearing them. Most people, of course, wear their own pants, and
       the jury could have rejected defendant’s statement that he was wearing his brother’s pants.
       While it is true that the pants were extremely baggy on defendant, defendant testified that he
       and his brother had similar builds, so they would have been baggy on his brother as well. The
       jury had an opportunity to witness defendant testify and was free to make conclusions as to
       his credibility, as was its prerogative to do. See Island, 385 Ill. App. 3d at 347.
¶ 19        Third, a rational trier of fact could conclude that defendant’s hesitancy to speak to
       Lamanna tended to prove that he knew about the drugs in his pockets. Specifically, Lamanna
       testified that defendant was “very hesitant” to approach the squad car and that he had to ask
       defendant two or three times to come closer to the car. Before complying with Lamanna’s
       requests, defendant tied his dog to the fence and used a cellular telephone to either make a
       call or send a text message to someone else. An attempt to avoid the police is evidence of
       consciousness of guilt. See People v. Ransom, 319 Ill. App. 3d 915, 920 (2001); People v.
       Ward, 83 Ill. App. 3d 766, 771 (1980). We recognize that defendant’s conduct did not rise
       to the level of flight; nevertheless, it did provide a basis to infer that defendant was reluctant
       to interact with Lamanna.
¶ 20        In an attempt to counter this inference, defendant cites People v. Hodogbey, 306 Ill. App.
       3d 555 (1999). In Hodogbey, the First District wrote, “ ‘[S]uspicious behavior in the vicinity
       of narcotics will not suffice as proof of knowledge as to their presence.’ ” Id. at 561 (quoting
       People v. Boswell, 19 Ill. App. 3d 619, 621 (1974)). Defendant argues that, based on this
       statement in Hodogbey, his behavior could not constitute proof that he knew about the drugs
       in his pockets. However, the law is well settled that a trier of fact is permitted to make all
       reasonable inferences based on the evidence. People v. Jimerson, 127 Ill. 2d 12, 43 (1989).
       When an individual who possesses drugs acts suspiciously in front of police, is it reasonable
       for the trier of fact to infer that the suspicious behavior results from the individual’s
       knowledge that he or she is committing a crime? In considering this issue, we will carefully
       examine the proposition set forth by the Hodogbey court and its historical underpinnings.
¶ 21       The Hodogbey court’s holding that “suspicious behavior in the vicinity of narcotics will
       not suffice as proof of knowledge as to their presence” (see Hodogbey, 306 Ill. App. 3d at

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       561) is a direct quote from Boswell, 19 Ill. App. 3d at 621. Boswell, in turn, cites People v.
       Ackerman, 2 Ill. App. 3d 903, 905 (1971), and Ackerman quotes People v. Jackson, 23 Ill.
       2d 360, 364 (1961). Initially, we note that Ackerman did not hold that suspicious conduct did
       not provide proof of knowledge of the presence of narcotics; rather, it found that the
       defendant’s actions did not rise to the level of suspicious conduct:
                “In applying the foregoing authorities to the facts in the case at bar it is our opinion
            that the evidence fails to show acts, declarations or conduct which fairly support any
            inference of knowledge by defendant that the package contained LSD. In this respect the
            State itself refers to defendant’s conduct as suspicious or not normal, characterizations
            which are difficult to justify from the evidence at best and insufficient to support the
            burden imposed upon the State. All the evidence shows is that defendant received a
            package in the course of normal mail delivery and placed the package under his arm for
            about five seconds.” Ackerman, 2 Ill. App. 3d at 905-06.
       Hence, Ackerman does not stand for the proposition that “suspicious behavior in the vicinity
       of narcotics will not suffice as proof of knowledge as to their presence” (see Hodogbey, 306
       Ill. App. 3d at 561).
¶ 22        Moreover, Ackerman relied on Jackson for the following proposition:
                “In People v. Jackson, 23 Ill. 2d 360 ***, the Court declared, ‘The State would have
            us extend the Mack doctrine by holding that suspicious behavior in the vicinity of
            narcotics is proof not only of knowledge of their presence, but of all of the other elements
            of criminal possession as well. This we cannot do, however reluctant we may be to
            disturb the determination of the trier of facts in narcotics cases.’ ” (Emphasis added.)
            Ackerman, 2 Ill. App. 3d at 905 (quoting Jackson, 23 Ill. 2d at 364).
       Thus, Jackson actually stands for the proposition that suspicious behavior may constitute
       proof of knowledge, but not of the other elements of the offense. Indeed, the Jackson court
       expressly stated that “[t]he evidence [of suspicious behavior] would, of course, be ample to
       show guilty knowledge in the defendant if the fact of possession had been proved.” Jackson,
       23 Ill. 2d at 364. We further note that Jackson relies on People v. Mack, 12 Ill. 2d 151, 159-
       60 (1957), which merely holds that “the prosecution may meet its burden of proving the
       knowledge essential to a conviction for possession by evidence of acts, declarations or
       conduct of the accused from which the inference may be fairly drawn that he knew of the
       existence of the narcotics at the place they were found.”
¶ 23        Hodogbey and Boswell, in essence, stand for the proposition opposite to that announced
       in the supreme court cases from which they indirectly draw their precedential support.
       Jackson holds that, outside of knowledge, suspicious behavior does not suffice as proof for
       elements of criminal possession–by implication, then, such behavior may suffice as proof of
       knowledge. Jackson, 23 Ill. 2d at 364. Conversely, Hodogbey and Boswell state that such
       behavior cannot suffice as proof of knowledge. Hodogbey, 306 Ill. App. 3d at 561; Boswell,
       19 Ill. App. 3d at 621. As these cases contradict and depart from supreme court precedents,
       we decline to follow them. Clearly, the trier of fact was entitled to draw the commonsense
       inference that defendant’s suspicious behavior resulted from his knowledge that he was
       committing a crime in the presence of a police officer.


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¶ 24       In sum, viewing the evidence in the light most favorable to the State, a rational trier of
       fact could have concluded that defendant knew he had possession of the drugs in his pockets.
       As defendant does not assert that the evidence was insufficient to prove any of the other
       elements of the offense, his conviction must stand.

¶ 25                           B. Public Defender Reimbursement Fee
¶ 26        We now turn to the second issue defendant raises on appeal. Defendant notes that under
       section 113-3.1(a) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/113-3.1(a)
       (West 2010)), when an indigent defendant is provided with court-appointed counsel, the trial
       court may order the defendant to pay “a reasonable sum” to reimburse the state or county for
       the cost of his representation. Section 113-3.1(a) requires that the trial court conduct a
       hearing into a defendant’s financial circumstances and find that the defendant has an ability
       to pay the fee before ordering reimbursement. People v. Love, 177 Ill. 2d 550, 563 (1997).
       Defendant argues that, because the trial court did not properly hold this hearing, we must
       vacate the $750 public defender reimbursement fee imposed by the trial court. The State
       agrees that the trial court did not conduct the required hearing.
¶ 27        However, the parties disagree as to the proper remedy. Defendant argues that the fee
       should simply be vacated; the State asserts that the fee should be vacated and the cause
       should be remanded to allow the trial court to conduct a proper hearing. Defendant’s
       argument is based on the following portion of section 113-3.1(a): “Such hearing shall be
       conducted on the court’s own motion or on motion of the State’s Attorney at any time after
       the appointment of counsel but no later than 90 days after the entry of a final order disposing
       of the case at the trial level.” 725 ILCS 5/113-3.1(a) (West 2010). The State counters that,
       in Love, 177 Ill. 2d at 565, the supreme court remanded the matter for such a hearing long
       after the expiration of the statutory 90-day period. The State also asserts that this issue is
       pending before the supreme court in People v. Fitzpatrick, 2011 IL App (2d) 100463, appeal
       allowed, No. 113449 (Jan. 25, 2012). Defendant notes that, in Fitzpatrick, the State is
       arguing before the supreme court that the issue has been procedurally forfeited (defendant
       has included a portion of the State’s brief before the supreme court containing this
       argument).
¶ 28        Recently, in People v. Somers, 2012 IL App (4th) 110180, ¶ 45, the Fourth District under
       the same circumstances remanded for a new hearing where a public defender reimbursement
       fee was imposed before the expiration of the statutory 90-day period without a proper
       hearing. In fact, as in this case, the fee was imposed at the sentencing hearing. Id. We find
       Somers’ reasoning persuasive. Quite simply, the legislature could not have intended the
       entire appellate process to be completed in the 90 days following the final order in the trial
       court. In re Marriage of Ricard, 2012 IL App (1st) 111757, ¶ 35 (holding that the legislature
       is presumed not to intend consequences that are absurd or inconvenient). We also perceive
       no intent on the part of the legislature to limit this court’s ability to order appropriate relief.
       Accordingly, we vacate the public defender reimbursement fee, and we remand so that the
       trial court can hold an appropriate hearing.



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¶ 29                    C. Credit For Time in Custody Before Sentencing
¶ 30       We now turn to the third issue raised by defendant. A defendant who is incarcerated on
       a bailable offense and who is later fined as part of the sentence for that offense may have the
       fine reduced by $5 for every day spent in custody prior to being sentenced. 725 ILCS 5/110-
       14(a) (West 2010). Defendant contends that the trial court failed to award him this credit for
       three days he spent in presentence custody. A reviewing court may award the credit even if
       the defendant failed to apply for it in the trial court. People v. Woodard, 175 Ill. 2d 435, 457
       (1997). A statutory drug assessment is considered a fine for purposes of awarding the credit.
       People v. Jones, 223 Ill. 2d 569, 588 (2006).
¶ 31       Here, defendant was in presentence custody for 17 days, from August 4, 2010, until
       August 12, 2010, and then from September 2, 2010, until September 9, 2010. However, he
       was given credit only for being in custody for 14 days. The State confesses error. Therefore,
       we hold that defendant is entitled to an additional $15 of credit to be applied against his $500
       statutory drug assessment.

¶ 32                                   IV. CONCLUSION
¶ 33       In light of the foregoing, we find that sufficient evidence exists to support defendant’s
       conviction. We also hold that the trial court erred in not holding a hearing prior to imposing
       a $750 public defender reimbursement fee and that defendant was not given proper credit for
       time spent in presentence custody. Therefore, we affirm defendant’s conviction, vacate the
       $750 public defender reimbursement fee and remand for an appropriate hearing, and grant
       defendant an additional $15 credit against his $500 statutory drug assessment.

¶ 34      Affirmed as modified in part and vacated in part; cause remanded.




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