                                Illinois Official Reports

                                        Appellate Court



                            People v. Davis, 2014 IL App (4th) 121040



Appellate Court           THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                   LORONZO A. DAVIS, Defendant-Appellant.


District & No.            Fourth District
                          Docket No. 4-12-1040


Rule 23 Order filed       November 14, 2014
Rule 23 Order
withdrawn                 December 8, 2014
Opinion filed             December 8, 2014


Held                       Defendant’s convictions for unlawful possession of a controlled
(Note: This syllabus substance with intent to deliver and driving while his license was
constitutes no part of the revoked were upheld over his contentions that his trial counsel was
opinion of the court but ineffective in failing to object to the admission of the contents of a text
has been prepared by the message on his telephone and his failure to move to suppress the
Reporter of Decisions message and that the evidence was insufficient to prove that he
for the convenience of intended to deliver the controlled substance, since there was an
the reader.)               adequate foundation after the officer who discovered the message
                           testified that he had read the message and the best evidence rule did
                           not apply where the State only used the message to prove defendant’s
                           intent to deliver the cocaine, and under the circumstances, the
                           evidence was sufficient to support an inference that defendant
                           intended to deliver the cocaine that was discovered in his pocket
                           following a traffic stop.


Decision Under            Appeal from the Circuit Court of Macon County, No. 12-CF-375; the
Review                    Hon. Thomas E. Griffith, Jr., Judge, presiding.


Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier, Jacqueline L. Bullard, and Daaron V. Kimmel
     Appeal                   (argued), all of State Appellate Defender’s Office, of Springfield, for
                              appellant.

                              Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
                              Robinson, and David E. Mannchen (argued), all of State’s Attorneys
                              Appellate Prosecutor’s Office, of counsel), for the People.



     Panel                    JUSTICE KNECHT delivered the judgment of the court, with
                              opinion.
                              Justices Holder White and Steigmann concurred in the judgment and
                              opinion.

                                               OPINION

¶1         In March 2012, the State charged defendant, Loronzo A. Davis, with unlawful possession
       of a controlled substance with intent to deliver (prior offense) (720 ILCS 570/401(c)(2)
       (West 2012)). In June 2012, the State charged defendant with driving while license revoked
       (prior offense) (625 ILCS 5/6-303(d-3) (West 2012)). In August 2012, a Macon County jury
       found defendant guilty of both offenses. In November 2012, the trial court sentenced
       defendant to nine years’ imprisonment for possession of a controlled substance with intent to
       deliver and three years’ imprisonment for driving while license revoked, with the sentences
       to run concurrently.
¶2         On appeal, defendant argues trial counsel was ineffective for failing to (1) object to the
       admission of the contents of a text message, and (2) file a motion to suppress the contents of
       the text message. Defendant also argues the evidence was insufficient to prove he possessed
       a controlled substance with the intent to deliver. We affirm.

¶3                                         I. BACKGROUND
¶4         In March 2012, the State charged defendant with unlawful possession of a controlled
       substance with intent to deliver (720 ILCS 570/401(c)(2) (West 2012)). In June 2012, the
       State charged defendant with driving while license revoked with three prior convictions for
       driving with a revoked license (625 ILCS 5/6-303(d-3) (West 2012)).
¶5         In August 2012, the trial court held a jury trial at which the following evidence was
       presented. Bradley Hall, a police officer with the Decatur police department, testified he
       conducted a traffic stop at 1:07 a.m. on January 8, 2012, of the vehicle defendant was
       driving. From the time Hall activated his emergency lights to the time defendant stopped the
       vehicle, Hall had a clear view of the vehicle and did not see anything come out of the vehicle.
       Hall arrested defendant for driving with a revoked driver’s license and conducted a search
       incident to arrest of defendant’s person. Hall located a clear plastic bag containing a white
       rock-like substance in defendant’s pants pocket. This substance was later determined to be
       2.1 grams of cocaine base. Hall did not locate anything in defendant’s vehicle or on his

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       person which could be used to consume cocaine. Nor did he locate a scale, other plastic bags,
       or any money.
¶6         David Dailey, a detective with the Decatur police department, testified as an expert in
       controlled substance distribution. He testified cocaine base is the scientific term for crack
       cocaine. Crack cocaine is different from powder cocaine as it is smoked and not snorted or
       injected. In Decatur, crack cocaine is sold in amounts as small as 0.1 grams for $10. This is
       the most common dosage amount for crack cocaine. The 2.1 grams of crack cocaine would
       amount to 21 doses. Dailey testified drug dealers in the past had packaged the crack cocaine
       in separate bags, used scales, and carried large sums of money, but they had changed
       methods. The current trend is for dealers to carry one bag, keep the cocaine in one “rock,”
       and avoid carrying a scale and large sums of money. Dailey testified it was his opinion
       defendant possessed the crack cocaine with the intent to deliver based on the fact 2.1 grams
       is consistent with a distribution amount, the lack of drug paraphernalia, the presence of the
       cell phone, the text message, and defendant’s admission he sells crack cocaine.
¶7         On January 8, 2012, Dailey interviewed defendant; a portion of this interview was played
       for the jury. During the interview, defendant asserted the crack cocaine was for his own
       consumption. He admitted he “occasionally” sold crack cocaine. Dailey told defendant
       defendant had received a text message asking about purchasing a “30 or a 40.” Defendant
       said he did not remember the text message and replied he deals over the phone but does not
       get text messages with “that kind of information.” The interview concluded with Dailey
       discussing defendant’s possible cooperation with the police.
¶8         Dailey testified he searched through the recent text messages on defendant’s cell phone
       and defendant received a text message at 1:32 a.m. which stated, “Can you meet me for a 30
       or a 40?” This is consistent with someone trying to purchase $30 or $40 worth of crack
       cocaine. Dailey did not find any other messages about delivering drugs. He testified that
       pursuant to an agreement defendant would cooperate with police in other investigations, and
       the phone was returned to defendant.
¶9         Defendant testified and admitted he was addicted to cocaine. He had been “off and on”
       cocaine for the past 20 years. He testified two to three days a week he would “sneak out”
       early in the morning to smoke crack cocaine. He did this because he wanted to hide the fact
       he was smoking crack cocaine from his girlfriend. On January 8, 2012, he was going to
       smoke in private. He explained he threw his pipe out of the car window before he was
       stopped and this is why the officer did not find a pipe. He testified he sells drugs “maybe
       three to four times a year, if that.” On cross-examination, he again admitted selling drugs and
       explained he deals during the day and not at night.
¶ 10       In September 2012, defendant filed a motion for a new trial, arguing the evidence was
       insufficient. In November 2012, the trial court held a hearing on the motion for a new trial.
       The court denied the motion and immediately thereafter held a sentencing hearing. The State
       introduced a presentence investigation report showing convictions in Macon County for 12
       felonies. Defendant was previously convicted of driving with a revoked license in Macon
       County case Nos. 05-CF-278 and 05-CF-969. He was convicted of unlawful possession of a
       controlled substance in Macon County case No. 92-CF-153. The court found defendant was
       eligible for sentencing as a Class X offender because of his previous felony convictions (730
       ILCS 5/5-4.5-95 (West 2012)) and sentenced defendant as previously stated.
¶ 11       This appeal followed.

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¶ 12                                         II. ANALYSIS
¶ 13       On appeal, defendant argues trial counsel was ineffective for failing to (1) object to the
       admission of the contents of a text message, and (2) file a motion to suppress the contents of
       the text message. Defendant also argues the evidence was insufficient to prove he possessed
       a controlled substance with the intent to deliver. Defendant’s arguments are unpersuasive.

¶ 14                     A. Defendant’s Ineffective-Assistance-of-Counsel Claims
¶ 15       Ineffective-assistance-of-counsel claims are reviewed under the two-pronged standard set
       forth in Strickland v. Washington, 466 U.S. 668 (1984). To establish ineffective assistance of
       counsel, a defendant must demonstrate (1) “his defense counsel’s performance was deficient
       in that ‘counsel made errors so serious that counsel was not functioning as the “counsel”
       guaranteed the defendant by the Sixth Amendment’ ”; and (2) “but for defense counsel’s
       deficient performance, the result of the proceeding would have been different.” People v.
       Coleman, 183 Ill. 2d 366, 397, 701 N.E.2d 1063, 1079 (1998) (quoting Strickland, 466 U.S.
       at 687). To satisfy the first prong, “a defendant must overcome the strong presumption that
       the challenged action or inaction of counsel was the product of sound trial strategy and not of
       incompetence.” Id. A court “may resolve ineffectiveness claims under the two-part
       Strickland test by reaching only the prejudice component, for lack of prejudice renders
       irrelevant the issue of counsel’s performance.” Id. at 397-98, 701 N.E.2d at 1079.

¶ 16               1. Defendant’s Argument Trial Counsel Was Ineffective for Failing To Object
                             to the Admission of the Text Message’s Contents
¶ 17       Defendant argues trial counsel was ineffective for failing to object to the admission of the
       text message’s contents. Specifically, defendant contends counsel should have objected on
       the basis of (1) lack of foundation, (2) violation of the best evidence rule, and (3) hearsay. He
       asserts he was prejudiced by the lack of an objection because the text message was the
       State’s “strongest piece of evidence” of his intent to sell and the other evidence relating to his
       intent was “inconclusive.”
¶ 18       Defendant’s argument is focused on Dailey’s testimony about what the text message
       stated but the record shows the State first played portions of defendant’s police interview in
       which Dailey told defendant defendant had received a text message asking for a 30 or a 40
       and asked defendant about the text message. After the video of this interview was played, the
       State asked Dailey what the text message stated and Dailey testified it stated, “Can I get a 30
       or a 40?” Defense counsel did not object. The record shows counsel cross-examined Dailey
       about the text message and his testimony the text message was consistent with drug dealing.
¶ 19       There is a strong presumption counsel’s action or inaction was the product of sound trial
       strategy and “ ‘[m]atters of trial strategy are generally immune from claims of ineffective
       assistance of counsel.’ ” People v. Manning, 241 Ill. 2d 319, 327, 948 N.E.2d 542, 547
       (2011) (quoting People v. Smith, 195 Ill. 2d 179, 188, 745 N.E.2d 1194, 1200 (2000)).
       Defendant has not provided any insight into trial counsel’s decision not to object or
       overcome this presumption of competence. See People v. Bew, 228 Ill. 2d 122, 134, 886
       N.E.2d 1002, 1009 (2008) (claims of ineffective assistance of counsel where the record on
       direct appeal is insufficient to support a claim of ineffective assistance of counsel are

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       preferably brought on collateral review). Defendant has not satisfied the
       deficient-performance prong of Strickland.
¶ 20        Defendant has not satisfied Strickland’s prejudice prong as he has not shown any
       reasonable probability an objection based on the grounds identified would have succeeded.
       See People v. Patterson, 347 Ill. App. 3d 1044, 1053, 808 N.E.2d 1159, 1167 (2004).
       Defendant asserts the State failed to lay a proper foundation to introduce the contents of the
       text message. Defendant’s argument rests on the assumption the State had to lay the same
       foundation required for introduction of a document. See People v. Chromik, 408 Ill. App. 3d
       1028, 1046, 946 N.E.2d 1039, 1055 (2011) (“An adequate foundation is laid when a
       document is identified and authenticated.”). But the State did not introduce a document. It
       first played the interview video in which Dailey confronted defendant with the text message
       and then asked Dailey what the text message stated. Once Dailey testified he had read the
       text message, there was a foundation for him to testify about what it stated. Compare id. at
       1048, 946 N.E.2d at 1056-57 (discussing admission of a transcription of text messages).
       Defendant next asserts Dailey’s testimony about the text message violated the best evidence
       rule. “The best evidence rule applies only when the contents or terms of a writing are in issue
       and must be established.” People v. Pelc, 177 Ill. App. 3d 737, 742, 532 N.E.2d 552, 555
       (1988); see also Ill. R. Evid. 1002 (eff. Jan. 1, 2011) (“To prove the content of a writing,
       recording, or photograph, the original writing, recording, or photograph is required, except as
       otherwise provided in these rules or by statute.”). The best evidence rule did not apply
       because the State did not seek to prove the content or terms of the text message–it sought to
       prove defendant intended to deliver the crack cocaine and used the text message as
       circumstantial evidence of this intent. The actual contents or terms of the text message did
       not matter. What mattered is the time it was received–soon after defendant was found in
       possession of 2.1 grams of cocaine–and what it requested. Defendant last asserts Dailey’s
       testimony was hearsay because “[t]he purpose of introducing the text message was to portray
       [defendant] as a drug dealer, which depended on the truth of the content of the message: that
       someone wanted to buy drugs from [defendant].” This is not hearsay. Hearsay “is a
       statement, other than one made by the declarant while testifying at the trial or hearing,
       offered in evidence to prove the truth of the matter asserted.” Ill. R. Evid. 801(c) (eff. Jan. 1,
       2011). Here, Dailey’s testimony–the text message stated, “Can you meet me for a 30 or
       40?”–was not offered to prove the truth of the matter asserted but rather as information about
       the police investigation and circumstantial evidence of defendant’s intent to deliver drugs.

¶ 21       2. Defendant’s Argument Trial Counsel Was Ineffective for Failing To File a Motion
                              To Suppress Evidence From His Cell Phone
¶ 22       Defendant argues trial counsel was ineffective for failing to file a motion to suppress the
       text message because the police were required to obtain a search warrant before searching
       defendant’s cell phone.
¶ 23       Defense counsel may be ineffective for misunderstanding applicable law. People v.
       Hartfield, 232 Ill. App. 3d 198, 207, 596 N.E.2d 703, 709 (1992). But counsel’s
       understanding must be considered in the context of the state of the law at the time (People v.
       English, 2013 IL 112890, ¶ 34, 987 N.E.2d 371), and “counsel is not incompetent for failing
       to accurately predict that existing law will change” (People v. Weninger, 292 Ill. App. 3d
       340, 345, 686 N.E.2d 24, 28 (1997)). At the time of defendant’s trial in August 2012, the

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       question of whether police could conduct a warrantless search of the data on a cell phone had
       not been resolved in Illinois. As the State points out, courts across the country were split on
       the legality of a warrantless cell phone search and many courts had found warrantless
       searches were valid. See United States v. Finley, 477 F.3d 250, 260 (5th Cir. 2007)
       (warrantless search of cell phone incident to arrest was lawful); United States v. Murphy, 552
       F.3d 405, 411 (4th Cir. 2009) (“officers may retrieve text messages and other information
       from cell phones and pagers seized incident to an arrest”); Hawkins v. State, 723 S.E.2d 924
       (Ga. 2012) (same); but see State v. Smith, 124 Ohio St. 3d 163, 2009-Ohio-6426, 920 N.E.2d
       949, at ¶ 29 (warrantless search of cell phone’s data is prohibited). In June 2014, 22 months
       after defendant’s trial, the United States Supreme Court provided a definitive answer to this
       question. In Riley v. California, 573 U.S. ___, 134 S. Ct. 2473 (2014), the Supreme Court
       considered whether the search-incident-to-arrest exception to the warrant requirement should
       include searches of the data on a cell phone seized from an individual who has been arrested.
       The Riley Court declined to extend the search-incident-to-arrest exception to include searches
       of the data on a cell phone and held “a warrant is generally required before such a search,
       even when a cell phone is seized incident to arrest.” Id. at ___, 134 S. Ct. at 2493.
¶ 24       Defendant, as in his argument above, has not provided any insight into trial counsel’s
       decision not to file a motion to suppress on the basis the police were required to obtain a
       search warrant before examining defendant’s cell phone. At the time of defendant’s trial,
       such a motion had a questionable chance of success. We agree with the State, a reasonable
       argument could have been made at the time, based on Illinois precedent, a warrantless search
       of a cell phone was valid pursuant to the search-incident-to-arrest exception. See People v.
       Dillon, 102 Ill. 2d 522, 529, 468 N.E.2d 964, 967 (1984) (search of wallet); People v.
       Cregan, 2011 IL App (4th) 100477, ¶ 26, 961 N.E.2d 926 (search of luggage). Riley
       obviously changed things, but to accept defendant’s argument we would have to conclude
       counsel was ineffective for failing to predict the future and anticipate Riley. We decline to
       impose such “a duty of clairvoyance.” Hartfield, 232 Ill. App. 3d at 208, 596 N.E.2d at 710.

¶ 25                       B. Defendant’s Sufficiency-of-the-Evidence Claim
¶ 26       Defendant argues the State failed to prove he intended to deliver a controlled substance.
       Specifically, he asserts the evidence of his intent was “inconclusive” because (1) the amount
       of crack cocaine found on his person was not too large for personal use, (2) the appearance
       and condition of the crack cocaine “did not imply anything important,” (3) he was not found
       in possession of other items consistent with drug dealing, (4) the text message asking for a
       “30 or a 40” was sent after he was arrested, and (5) he maintained the drugs were for his
       personal consumption.
¶ 27       “Where a criminal conviction is challenged based on insufficient evidence, a reviewing
       court, considering all of the evidence in the light most favorable to the prosecution, must
       determine whether any rational trier of fact could have found beyond a reasonable doubt the
       essential elements of the crime.” People v. Brown, 2013 IL 114196, ¶ 48, 1 N.E.3d 888.
       “When considering the sufficiency of the evidence, ‘our function is not to retry the
       defendant.’ ” People v. Beauchamp, 241 Ill. 2d 1, 8, 944 N.E.2d 319, 322 (2011) (quoting
       People v. Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d 178, 217 (2006)). “As a reviewing
       court, ‘[w]e will not reverse a conviction unless the evidence is so improbable,
       unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant’s guilt.’ ” Id.,

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       944 N.E.2d at 323 (quoting People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262, 267-68
       (2005)).
¶ 28       Defendant relies upon People v. Robinson, 167 Ill. 2d 397, 657 N.E.2d 1020 (1995), to
       assert the evidence presented was “inconclusive” of his intent to deliver. In Robinson, our
       supreme court recognized a criminal defendant’s intent to deliver a controlled substance is
       usually proved by circumstantial evidence. Id. at 408, 657 N.E.2d at 1026. It found factors
       probative to an intent to deliver include (1) “whether the quantity of controlled substance in
       defendant’s possession is too large to be viewed as being for personal consumption”; (2) the
       purity of the drug; (3) possession of weapons, large amounts of cash, and cellular telephones;
       (4) presence of drug paraphernalia; and (5) “the manner in which the substance is packaged.”
       Id., 657 N.E.2d at 1026-27. Defendant goes through these factors to argue each factor is
       “inconclusive” of his intent to deliver. This is largely a request for this court to reweigh the
       evidence. We will not. Defendant seems to understand Robinson as an exhaustive list of what
       must be shown to prove intent to deliver. Robinson was decided nearly 20 years ago and, as
       Dailey testified, drug dealers have changed their methods and tactics in response to criminal
       investigations and prosecutions. Moreover, the Robinson court expressly stated “[t]he
       question of whether the evidence is sufficient to prove intent to deliver must be determined
       on a case-by-case basis” (id. at 412-13, 657 N.E.2d at 1029) and cautioned: “In light of the
       *** infinite number of potential factual scenarios in [drug] cases, there is no hard and fast
       rule to be applied in every case” (id. at 414, 657 N.E.2d at 1030).
¶ 29       Here, the undisputed evidence showed defendant (1) was stopped at approximately 1 a.m.
       as he was travelling away from his home, (2) was carrying 2.1 grams of crack cocaine (the
       equivalent of 21 doses), and (3) admitted to police and in his testimony he sold crack
       cocaine. Defendant is correct no evidence showed (1) he possessed scales, (2) he possessed
       large amounts of money, and (3) the crack cocaine was packaged in separate bags. But
       Dailey testified drug dealers had changed their methods to avoid carrying scales, large
       amounts of money, and packaging in separate bags. Now dealers were carrying a single
       “rock” in a single plastic bag–exactly how the crack cocaine was packaged here. Defendant
       asserts the text message does not show his intent to deliver because it was received after his
       arrest, and no evidence showed the text message was meant for him or he would have
       accepted the request. This is all argument about the weight of the evidence. See People v.
       Washington, 2012 IL 110283, ¶ 60, 962 N.E.2d 902 (“It is the jury’s function to weigh the
       evidence, assess the credibility of the witnesses, resolve conflicts in the evidence, and draw
       reasonable inferences therefrom.”). Dailey testified the text message was received soon after
       defendant was found with the crack cocaine and was consistent with a request to purchase
       crack cocaine. Although it was received after defendant’s arrest, a reasonable jury could have
       used it as circumstantial evidence of defendant’s intent to deliver crack cocaine, i.e., to
       explain what defendant was up to at 1 a.m. with 2.1 grams of crack cocaine in his pocket.
       The jury could have rejected defendant’s assertions the crack cocaine was for his personal
       consumption. Defendant admitted being a drug addict and having previously sold crack
       cocaine. As the State points out, the jury could have found defendant lacked credibility when
       he testified he was driving to a remote location with 2.1 grams of crack cocaine (an amount
       equivalent to 21 doses) so his girlfriend would not find out he was smoking crack cocaine.
       Viewing the evidence in the light most favorable to the State, the evidence in this case was
       sufficient to support an inference defendant intended to deliver the controlled substance.


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¶ 30                                      III. CONCLUSION
¶ 31          We affirm the trial court’s judgment. As part of our judgment, we award the State its
       $75 statutory assessment against defendant as costs of this appeal. 55 ILCS 5/4-2002(a)
       (West 2012).

¶ 32      Affirmed.




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