                                        2014 IL App (3d) 121016

                              Opinion filed November 17, 2014
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                               A.D., 2014

     THE PEOPLE OF THE STATE OF                      )      Appeal from the Circuit Court
     ILLINOIS,                                       )      of the 21st Judicial Circuit,
                                                     )      Kankakee County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )      Appeal No. 3-12-1016
            v.                                       )      Circuit No. 12-CF-134
                                                     )
     ANTWAN L. JONES,                                )      Honorable
                                                     )      Clark E. Erickson,
            Defendant-Appellant.                     )      Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion.
            Justices Carter and O'Brien concurred in the judgment and opinion.


                                               OPINION

¶1          A Kankakee County jury found defendant, Antwan L. Jones, guilty of cannabis

     trafficking (720 ILCS 550/5.1(a) (West 2012)) and possession of cannabis with intent to deliver

     (720 ILCS 550/5(f) (West 2012)). Those charges stemmed from a March 8, 2012, incident in

     which the Kankakee Area Metropolitan Enforcement Group (KAMEG) performed a controlled

     delivery of a Federal Express (FedEx) package known to contain a quantity of cannabis.

     KAMEG agents arrested defendant shortly after he picked up and began to transport the package.

     The counts merged; the trial court sentenced defendant to a term of nine years' imprisonment on
     the trafficking count. Defendant appeals, arguing that the State failed to prove beyond a

     reasonable doubt that he had knowledge that the package contained cannabis. Defendant also

     contends that certain statements made by the State in closing arguments constituted plain error.

     We affirm.

¶2                                                 FACTS

¶3          The State charged defendant with unlawful cannabis trafficking (720 ILCS 550/5.1(a)

     (West 2012)) and unlawful possession of cannabis with intent to deliver (720 ILCS 550/5(f)

     (West 2012)). The matter proceeded to a jury trial on July 23, 2012.

¶4          A security specialist for FedEx testified that the package in question met several criteria,

     causing FedEx to identify the package as suspicious. The criteria included the facts that the

     package was shipped from a southern state, paid for by cash, no signature was required, and the

     "ship from" phone number was the same as the "ship to" phone number. FedEx notified

     KAMEG and apprised it of this information. Agents of KAMEG arrived at the local FedEx

     facility the following day and identified the suspicious package. In addition to the factors set out

     by FedEx, officers noted that all of the seams on the package were taped. The officers conducted

     a dog sniff. After the dog alerted, agents procured a warrant to open the package. Agent Joseph

     Bertrand opened the package and observed what appeared to be cannabis. A field test confirmed

     this observation. The contents were placed back into the package along with a tracking device,

     and the package was resealed.

¶5          Agent Willie Berry delivered the package to the address listed on the package, 552 South

     Myrtle Avenue in Kankakee. Berry knocked on the front door and rang the doorbell at

     approximately 10:30 a.m. When no one answered the door, Berry put the package down and left

     the scene. Two minutes later, Bertrand, who was participating in the surveillance of the


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     controlled delivery, observed a white female open the door and retrieve the package. About 13

     minutes later, Bertrand saw a green and tan Buick turn down an alley adjacent to Myrtle Avenue.

     Two minutes after that, a black male appeared from the north side of the residence, walked up to

     the porch, and entered the residence.

¶6          Two to three minutes later, Bertrand observed the subject leaving the residence and

     walking in the direction of the Buick and eventually out of Bertrand's view. Other KAMEG

     agents were parked a few blocks away from the residence. Upon receiving a report of a green

     and tan Buick, the KAMEG agents followed the Buick as it left the area. The Buick turned north

     onto Lincoln Avenue, traveled three blocks east on Bourbonnais Street, and then turned south

     onto Osborn Avenue, where the agents commenced a traffic stop.

¶7          Defendant rode in the front passenger seat, while Latifah Starks drove. Defendant held

     the unopened package. When agents ordered defendant and Starks to exit the vehicle, defendant

     threw the package into the backseat. Agent Joseph English estimated the time between the report

     of the Buick's description and the traffic stop was less than two minutes. Agent Jeffrey Martin

     testified that the time period was "[m]aybe a minute or less." Agent Chris Kidwell testified that

     he initiated the traffic stop because he did not want to lose such a large amount of cannabis into

     the community. He estimated that the street value of the package would be approximately

     $38,000.

¶8          Agent Clayt Wolfe testified that at the time of defendant's arrest, defendant was carrying

     $509 in cash. Wolfe interviewed defendant following the arrest. The video recordings of that

     interview were entered into evidence and played in court. In the interview, defendant initially

     stated that he was taking the package to the post office. Later, defendant said he was taking the

     package to FedEx. Additionally, defendant first told police that his stepmother, Katherine


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       Kemp, who lived at the Myrtle Avenue address, called him on the morning of March 8,

       informing him that a package had been delivered and that it was not for her. She asked

       defendant to return the package to FedEx for her. Later in the interview, defendant stated that

       his stepmother had called to tell him that his shoes had been delivered, but that when he arrived

       to retrieve the package, he noticed that it was not addressed to him. It was at this point that his

       stepmother suggested he bring the package back to FedEx. Wolfe testified that the Buick's

       direction of travel was inconsistent with defendant's claim that he was on the way to FedEx when

       stopped.

¶9            Defendant also told police that he was talking with Starks about FedEx earlier on March

       8 because he was expecting a pair of shoes to be delivered. He did not want packages delivered

       to his own house because he did not want his girlfriend to know about them. He noted that he

       had a "second girlfriend" in addition to Starks. Defendant also told police that he had been in

       court earlier that morning regarding an issue of child support. Defendant stated repeatedly in the

       interview that he did not know what was in the package.

¶ 10          Katherine Kemp testified that she had resided at 552 South Myrtle Avenue since 1993.

       She had been in a relationship with defendant's father. Defendant called her on March 7 to

       inform her that he was having a pair of shoes delivered to her home. Defendant previously had

       packages delivered there on Christmas and Valentine's Day. Kemp never looked at who sent the

       packages or to whom they were addressed, nor did she open them. Similarly, on March 8, she

       called defendant about the package without looking at the shipping label.

¶ 11          On cross-examination, Kemp explained that she did not "know if [the package] was

       shoes. [Defendant] said it was presents for his girlfriend and he didn't want her to get into them."

       Kemp further testified that she never told defendant the package was not addressed to him and


                                                         4
       never told defendant to return the package to FedEx.

¶ 12          Starks was the lone witness for the defense. She testified that on the morning of March 8,

       as she was leaving the hospital with her ill mother, she received a telephone call from defendant

       asking if she could pick him up. After she picked up defendant, he received a telephone call, and

       they proceeded to Kemp's house. Defendant went into the home and returned to the car with a

       package. Starks recalled that defendant had received a package of athletic apparel, delivered to

       Kemp's house, around Christmastime. Defendant opened that package at Starks' house, and there

       were Lakers hats and Michael Jordan shoes inside.

¶ 13          On cross-examination, Starks testified that she was in love with defendant and had known

       him for four years. In her interview with police after the traffic stop, Starks stated that she did

       not know defendant's full name, and simply called him "G." She did not know where defendant

       lived. Starks testified that she knew defendant was expecting a package that was important to

       him, and, for that reason, she texted defendant on the morning of March 8 when she saw a FedEx

       truck in the neighborhood. Starks further told police that defendant did have a car at that time,

       and he was working "[c]utting hair around the neighborhood." While she and defendant had

       discussed his filing for unemployment, she did not know whether he had.

¶ 14          Starks testified that she told defendant about the FedEx truck because defendant had

       previously ordered athletic apparel that had been stolen. Starks noted that in that neighborhood,

       packages would be stolen from porches if no one was home to accept the packages when they

       arrived.

¶ 15          The jury found defendant guilty on both counts. After denying defendant's motion for a

       new trial, the court proceeded to sentencing. The two counts merged, the court sentenced

       defendant only on the trafficking count.


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¶ 16                                               ANALYSIS

¶ 17                                      I. Sufficiency of the Evidence

¶ 18          When a challenge is made to the sufficiency of the evidence at trial, we review to

       determine whether any rational trier of fact could have found the essential elements of the crime

       beyond a reasonable doubt. People v. Baskerville, 2012 IL 111056, ¶ 31. In making this

       determination, we review the evidence in the light most favorable to the prosecution. Id.

¶ 19          It is not the purpose of a reviewing court to retry a defendant. People v. Milka, 211 Ill.

       2d 150, 178 (2004). Instead, great deference is given to the trier of fact. See, e.g., People v.

       Saxon, 374 Ill. App. 3d 409, 416-17 (2007). All reasonable inferences from the record in favor

       of the prosecution will be allowed. People v. Bush, 214 Ill. 2d 318, 326 (2005). " 'Where

       evidence is presented and such evidence is capable of producing conflicting inferences, it is best

       left to the trier of fact for proper resolution.' " Saxon, 374 Ill. App. 3d at 416 (quoting People v.

       McDonald, 168 Ill. 2d 420, 447 (1995)). The trier of fact is not required to accept or otherwise

       seek out any explanations of the evidence that are consistent with a defendant's innocence; nor is

       the trier of fact required to disregard any inferences that do flow from the evidence. People v.

       Sutherland, 223 Ill. 2d 187, 233 (2006); see also Saxon, 374 Ill. App. 3d at 416-17.

¶ 20          Section 5.1 of the Cannabis Control Act (Act) provides that "any person who knowingly

       brings or causes to be brought into this State *** with the intent to manufacture or deliver 2,500

       grams or more of cannabis in this State or any other state or country is guilty of cannabis

       trafficking." 720 ILCS 550/5.1(a) (West 2012). Similarly, the Act also provides that it is

       unlawful for any person to knowingly possess with intent to deliver cannabis. 720 ILCS 550/5

       (West 2012). Defendant was charged with one count under each of these subsections. Each

       offense requires the State to prove that a defendant had knowledge of the cannabis. See People


                                                         6
       v. Schmalz, 194 Ill. 2d 75, 81 (2000); People v. Nwosu, 289 Ill. App. 3d 487, 494 (1997).

       Defendant contends that the State failed to prove beyond a reasonable doubt that he knew the

       package contained cannabis.

¶ 21                                     A. Proving Guilty Knowledge

¶ 22          In arguing that the facts presented at trial were not sufficient to overcome reasonable

       doubt with respect to the knowledge requirement, defendant cites extensively to People v.

       Hodogbey, 306 Ill. App. 3d 555 (1999). In that case, authorities seized a package of heroin en

       route from Thailand to Chicago. The package was addressed to the defendant, Nelson

       Hodogbey, and contained a note written to "Nelson." Id. at 556. During a controlled delivery of

       the package, Hodogbey looked at the return address and confirmed that the package was his.

       After accepting the package, Hodogbey walked "from the apartment building to the sidewalk

       where he looked both ways down the street before returning inside." Id. at 557. Hodogbey then

       left his apartment with a friend, at which point he was arrested. Defendant told the arresting

       officer that he had a friend in Bangkok, but could not remember his name. The unopened

       package was recovered in Hodogbey's apartment.

¶ 23          The First District found the evidence insufficient to prove beyond a reasonable doubt that

       Hodogbey knew the package contained heroin. Id. at 562. Specifically, the court stated that

       Hodogbey's leaving his apartment, looking up and down his street, and then returning to the

       apartment building was insufficient evidence, noting: " '[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)).

¶ 24          Recently, the Second District discussed the Hodogbey decision and its precedents.

       People v. Brown, 2012 IL App (2d) 110640. The Brown court pointed out that the above


                                                        7
       quotation from Hodogbey—"suspicious behavior in the vicinity of narcotics will not suffice as

       proof of knowledge as to their presence"—was taken directly from Boswell, 19 Ill. App. 3d at

       621. Brown, 2012 IL App (2d) 110640, ¶ 21. The Boswell court, in turn, attributed the

       proposition to People v. Ackerman, 2 Ill. App. 3d 903 (1971). Brown, 2012 IL (App) 2d 110640,

       ¶ 21.

¶ 25           In Ackerman, the proposition appeared in the following context:

                      "In People v. Jackson, 23 Ill. 2d 360 [(1961)], the Court declared, 'The

                  State would have us extend the Mack doctrine [(People v. Mack, 12 Ill. 2d

                  151 (1957))] 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.' " Ackerman, 2 Ill. App. 3d at 905 (quoting

                  Jackson, 23 Ill. 2d at 364).

       Thus, it appears that Jackson, the basis of the holdings in Boswell and Hodogbey, actually stands

       for the proposition that suspicious behavior may constitute proof of knowledge, but not of the

       other elements of the offense. Brown, 2012 IL App (2d) 110640, ¶ 22. Indeed, the Jackson

       court pointed out that had the element of possession been proven in that case, the evidence of the

       defendant's suspicious behavior "would, of course, be ample to show guilty knowledge in the

       defendant." Jackson, 23 Ill. 2d at 364.

¶ 26           We agree with the Second District that the decisions in Hodogbey and Boswell "stand for

       the proposition opposite to that announced in the supreme court cases from which they indirectly

       draw their precedential support." Brown, 2012 IL App (2d) 110640, ¶ 23. Because those cases


                                                        8
       depart from the precedent of our supreme court, we join the Second District in declining to

       follow them. A trier of fact is, indeed, entitled to draw a commonsense inference that a

       defendant's suspicious behavior resulted from his knowledge that he was committing a crime.

¶ 27                                       B. Defendant's Knowledge

¶ 28          "The element of knowledge is rarely susceptible of direct proof and may be established

       by evidence of acts, declarations or conduct of the defendant which support the inference that he

       knew of the existence of narcotics ***." Nwosu, 289 Ill. App. 3d at 494. While a trier of fact

       may infer knowledge from suspicious behavior, mere possession of an unopened package

       containing drugs is insufficient to sustain a conviction for which knowledge is an element. See

       Ackerman, 2 Ill. App. 3d at 905-06.

¶ 29          In Ackerman, the evidence adduced at trial showed that a package containing LSD was

       delivered to the defendant's dormitory. Id. at 904. Hours later, the defendant went to his

       mailbox, retrieved a notice that a package had been delivered for him, and then picked up the

       package. The package was addressed to a Gary Lang, in care of the defendant. The defendant

       placed the package under his arm and began to walk toward the elevator, at which point he was

       stopped and arrested. The court found that there was insufficient evidence of knowledge to

       sustain a conviction, noting "the evidence fails to show acts, declarations or conduct which fairly

       support[s] any inference of knowledge by defendant that the package contained LSD." Id. at

       905. So Ackerman simply and correctly held that there was no suspicious activity on the part of

       the defendant from which a reasonable trier of fact could infer guilty knowledge.

¶ 30          In the case at hand, numerous suspicious circumstances allow a rational trier of fact to

       infer that defendant had knowledge of the contents of the package. Unlike the defendant in

       Ackerman, defendant here picked up a package from another person's house. Defendant then


                                                        9
       took possession of a package that showed neither his name nor his address. It is also remarkable

       that in the span of approximately 18 minutes, defendant received a telephone call from Kemp,

       immediately directed Starks to Kemp's house (despite having his own car at the time), stayed at

       Kemp's for only a few minutes, then departed, ostensibly to return a wrongly delivered package

       to FedEx. This sort of effort, whether to obtain a pair of shoes or to return another person's

       package to FedEx, is suspect.

¶ 31          Also suspicious was the route that defendant traveled while in possession of the package.

       According to KAMEG agents, the Buick traveled briefly one block north, three blocks east, and

       one block back south. At the urging of defendant, we take judicial notice of a map of the area in

       which defendant was traveling (see People v. Clark, 406 Ill. App. 3d 622, 632-34 (2010)),

       though this is hardly helpful to defendant's case. The map indicates that the FedEx facility,

       purportedly defendant's destination, was located to the northeast of defendant's location on the

       opposite side of the interstate. The only road in the area that appears to cross the interstate is

       Court Street, due north of defendant's location. Defendant was heading south at the time of his

       apprehension. This aligns with Wolfe's testimony that defendant's direction of travel was

       inconsistent with a route to the FedEx facility.

¶ 32          Further, it is probative that defendant made a series of false statements to police in his

       interview. As this court recognized in Saxon, 374 Ill. App. 3d at 417, "[f]alse exculpatory

       statements are ' "probative of a defendant's consciousness of guilt." ' " (quoting Milka, 211 Ill. 2d

       at 181, quoting People v. Shaw, 278 Ill. App. 3d 939, 951 (1996)). Defendant first told the

       police that he was taking the package to the post office before changing his story to the FedEx

       facility being his destination. He also originally told police that Kemp told him over the phone

       that the package was not hers and that he should return it to FedEx. Later, defendant said that he


                                                          10
       went to Kemp's house expecting that the package belonged to him and that Kemp only suggested

       he return the package to FedEx after he arrived at Kemp's house. Meanwhile, Kemp testified

       that she never told defendant to return the package to FedEx.

¶ 33          Defendant contends that all of these suspicious circumstances are either minor or may be

       explained in a way consistent with his innocence. The trier of fact, however, is not obligated to

       accept those explanations. Sutherland, 223 Ill. 2d at 233. Where reasonable inferences from the

       evidence may be made in favor of the prosecution, those inferences will be allowed. Bush, 214

       Ill. 2d at 326. Due to defendant's suspicious behavior immediately before and after picking up

       the package, as well as his inconsistent and false statements to police, a rational trier of fact

       could easily infer that defendant knew that the package contained cannabis.

¶ 34                                          II. Closing Arguments

¶ 35          Defendant also argues that the State made a series of improper statements during closing

       arguments. Defendant identifies three specific arguments made by the State that he maintains

       were not based on the evidence or legitimate inferences to be drawn from the evidence. Defense

       counsel only objected to one of the arguments, and none were raised in defendant's posttrial

       motion. For that reason, defendant urges that we review under the rubric of plain error.

¶ 36          Any issue not raised in a posttrial motion is considered waived for appeal. People v.

       Enoch, 122 Ill. 2d 176, 186 (1988). We cannot review such an issue unless it is deemed to be

       plain error. People v. Rippatoe, 408 Ill. App. 3d 1061, 1066 (2011). The first step in plain-error

       analysis is determining whether an error occurred at all. People v. Walker, 232 Ill. 2d 113, 124-

       25 (2009). This error must be "clear or obvious" in order for the analysis to proceed. People v.

       Piatkowski, 225 Ill. 2d 551, 565 (2007). Because we find no error in any of the State's




                                                         11
       arguments identified by defendant, we need not proceed to further steps in the plain-error

       analysis.

¶ 37          The State is afforded wide latitude in making its closing arguments. People v. Glasper,

       234 Ill. 2d 173, 204 (2009). Prosecutors are "permitted to comment on the evidence and any fair,

       reasonable inferences it yields." Id. They may not argue facts not contained on the record. Id.

       Prosecutors are also free to challenge the credibility of witnesses (People v. Richardson, 123 Ill.

       2d 322, 356 (1988)) and the credibility of the defense's theory of the case (Glasper, 234 Ill. 2d at

       207), as long as there is evidence to support that challenge. "Misconduct in closing argument is

       substantial and warrants reversal and a new trial if the improper remarks constituted a material

       factor in a defendant's conviction." People v. Wheeler, 226 Ill. 2d 92, 123 (2007).

¶ 38          Defendant first contends that the State improperly argued that Starks was aware that the

       package contained cannabis, pointing to the following passage from the State's closing:

                   "Let's talk about Latifah Starks. The defendant's second girlfriend. Now,

                   the person [s]he knew was expecting a package—a FedEx package

                   specifically, and despite being at the hospital all night long with her

                   mother who was having heart palpitations or having breathing problems,

                   managed to an hour before the package was received and delivered text

                   the defendant and tell him that there was a FedEx truck in the area. All

                   this for shoes when her mother's [sic] at the emergency room, not knowing

                   what's happening, she manages to text him and tell him that a FedEx

                   package—or van is in the area—or FedEx truck is in the area. She must

                   have known how important that package was to him, ladies and

                   gentlemen, $38,000 of importance."


                                                        12
       Defendant insists that the State presented no evidence that Starks had knowledge of the contents

       of the package and that no evidence presented could give rise to such an inference.

¶ 39           The State's implication that Starks knew the package contained cannabis was not

       improper. Starks was with her ill mother when she texted defendant to inform him that a FedEx

       truck was in the area. Though Starks testified that she did this because of the possibility of the

       package being stolen, the jury makes the ultimate determination of a witness's credibility. Later

       that day, Starks was still with her ill mother when she received a telephone call from defendant.

       She immediately left, picked defendant up, and drove him to Kemp's house. It is reasonable to

       infer from these facts that Starks was aware that the package was of great value, value beyond

       that of a pair of shoes.

¶ 40           Defendant next takes exception to the State's references in closing and rebuttal to

       defendant's financial situation. Specifically, defendant contends that it was improper for the

       State to infer from the evidence that defendant could not afford to buy athletic apparel or to have

       a large amount of cash on him. The State, defendant argues, "presented virtually no evidence of

       [defendant's] financial position or financial habits."

¶ 41           We, again, find that the State's argument was not improper. The State referred in its

       arguments to the $500 found on defendant at the time of his arrest, his owning a car, and his

       child support obligation. The State also referenced Starks' testimony that defendant had a job

       "[c]utting hair around the neighborhood." Based on the evidence of defendant's job, obligations,

       affinity for athletic apparel, and his having over $500 in cash, it is reasonable to infer that

       defendant had a source of income not mentioned by Starks. As defendant was found in

       possession of $38,000 worth of cannabis, the inference that he earned additional income from the

       sale of drugs is equally reasonable. See, e.g., People v. Johnson, 334 Ill. App. 3d 666, 677


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       (2002) (large amounts of cash—$291—and drugs found on defendant sufficient to infer that

       defendant intended to deliver drugs).

¶ 42          Finally, defendant takes issue with the following passage from the State's rebuttal:

                      "And just so we're clear, ladies and gentlemen, this case is not about

                  shoes. There's no shoes in this case. There never were. There never will

                  be. There probably weren't shoes back in Valentine's Day. There

                  probably weren't shoes back in Christmas. Shoes never existed. It's all a

                  lie. It's a fabrication. It's a falsehood. It's the best attempt he has to cover

                  his tracks. He used the fake names. He doesn't send the package to his

                  house. Drug dealing 101, you insulate yourself from the conduct that you

                  are actively participating in."

       Defendant contends that, in refuting the testimony that defendant had previously received

       packages of shoes, the State was essentially "telling" the jury that defendant actually received

       shipments of cannabis.

¶ 43          We disagree with defendant's interpretation of the State's comments. By arguing that

       there had been no previous shipments of shoes, the State was calling into question Starks'

       testimony that defendant had received previous shipments of shoes and that she had witnessed

       him opening one such package. Essentially, the State was arguing that that testimony had been

       fabricated to make defendant's present explanation seem more plausible. This attack on Starks'

       credibility was well within the latitude given to a prosecutor in closing arguments.

¶ 44          We find that there was no misconduct on the part of the State in closing arguments, and

       certainly not a level of misconduct substantial enough to warrant reversal. As we find no error,

       we need not proceed further in our plain-error analysis.


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¶ 45                                          CONCLUSION

¶ 46          For the foregoing reasons, the judgment of the circuit court of Kankakee County is

       affirmed.

¶ 47          Affirmed.




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