                         NO. 4-08-0402         Filed 11/17/09

                     IN THE APPELLATE COURT

                           OF ILLINOIS

                         FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,   )    Appeal from
          Plaintiff-Appellee,          )    Circuit Court of
          v.                           )    Macon County
DANNY COMAGE,                          )    No. 07CF393
          Defendant-Appellant.         )
                                       )    Honorable
                                       )    Timothy J. Steadman,
                                       )    Judge Presiding.
_________________________________________________________________

          JUSTICE MYERSCOUGH delivered the opinion of the court:

          In February 2008, a jury convicted defendant, Danny

Comage, of obstructing justice (720 ILCS 5/31-4(a) (West 2006)).

In May 2008, the trial court sentenced defendant to three years

in the Illinois Department of Corrections (DOC).   Defendant

appeals, arguing the State failed to prove his guilt beyond a

reasonable doubt because his act of throwing a crack pipe did not

amount to concealment of evidence.   We affirm.

                          I. BACKGROUND

          In March 2007, The State charged defendant with ob-

structing justice (720 ILCS 5/31-4(a) (West 2006)), unlawful

possession of drug paraphernalia (720 ILCS 600/3.5 (West 2006)),

and resisting a peace officer (720 ILCS 5/31-1 (West 2006)).

These charges resulted from events that took place as part of the

investigation of a gas station theft.    Defendant was not charged

in relation to the gas station theft.
           In July 2007, a jury convicted defendant of obstructing

justice and resisting a peace officer but found him not guilty of

possession of drug paraphernalia.    Defendant filed a motion for

judgment notwithstanding the verdict or, alternatively, for a new

trial based partly on the fact that one of the State's witnesses

made reference to defendant having invoked his right to remain

silent during police questioning.    In September 2007, the trial

court granted defendant's motion for a new trial on the

obstructing-justice and resisting-a-peace-officer charges.     The

State later dismissed the resisting-a-peace-officer charge.

           At the second jury trial in February 2008, the follow-

ing evidence was presented.    On the night of March 19, 2007,

while investigating a theft at a gas station in Decatur, Officer

Chad Larner began looking for the suspect, who had been described

as a clean-shaven black man, thinly built, and wearing nice

casual dress slacks.    Officer Larner stopped defendant and asked

for identification.    While Larner was checking defendant's

information over the police radio, Officer Kathleen Romer arrived

on the scene.   She noticed defendant was jumping around and

appeared nervous.   Officer Romer testified defendant advised he

needed to urinate and threatened to urinate on the squad car.

Thereafter, defendant suddenly ran away from the officers down an

alley.   The two officers chased him for approximately 20 to 30

yards before defendant stopped.


                                - 2 -
          During the chase, according to the officers, they had

an unobstructed view of defendant.       While only a short distance

behind defendant, the officers saw him reach into his pocket,

pull out two rod-like objects that were five to six inches in

length, and throw them over a six-foot-tall, wooden privacy fence

while he ran down the alley.   The fence was just above Officer

Larner's eye level.   Neither officer saw over what section of the

fence defendant threw the items.    Defendant stopped approximately

10 to 15 feet from where he threw the items after Officer Romer

threatened to use her Taser.

          Officer Larner found a crack cocaine pipe and a push

rod in the parking lot on the other side of the fence.      The

general area where the pipe and rod were found had landscape rock

under and along the fence about two to three feet wide.      Some

grass was in the area but no snow.       The rest of the parking lot

was concrete or asphalt.   According to his testimony, Larner

located the 2 items in under 20 seconds after apprehending

defendant.   Although it was nighttime, Officer Larner testified

that the parking lot was well-lit and vacant.      Larner found the

items in the approximate area where defendant had thrown the two

items he took from his pocket.

          Citing In re M.F., 315 Ill. App. 3d 641, 734 N.E.2d 171

(2000), defendant moved for a directed verdict on the ground that

he had not concealed evidence since the officers observed defen-


                                 - 3 -
dant toss the evidence over the fence and the officers promptly

retrieved the evidence.    The trial court denied defendant's

motion on the grounds that the facts in M.F. were distinguishable

from the case before the court.    The court specifically stated as

follows:

           "I do think[,] for the reasons I stated back

           in July[,] that there are significant distin-

           guishing factors here that make this scenario

           much different or substantially different, I

           think, than what happened in the 'rooftop'

           case, not the least of which is, in this case

           according to the evidence the State has pro-

           duced, defendant was running after a legal

           Terry [s]top took place.     In the process of

           running on foot, he discarded the items,

           didn't just drop them but threw them over an

           adjacent fence[,] which is more of [an] af-

           firmative act amounting to obstructing jus-

           tice.   So, I do think there are enough dis-

           tinguishing factors here that--uh--the motion

           should be denied."

           The jury found defendant guilty of obstructing justice.

The trial court entered judgment on the verdict and sentenced

defendant to three years' imprisonment in DOC.


                                - 4 -
          This appeal followed.

                           II. ANALYSIS

          On appeal, defendant argues that the State failed to

prove him guilty beyond a reasonable doubt.    Specifically,

defendant argues that the State failed to prove defendant "con-

cealed" evidence to prevent his prosecution for possession of

drug paraphernalia because the State only demonstrated that

defendant "abandoned the crack pipe in full view of police

without any reasonable ability to conceal it."    The State argues

that its burden of proof was met at trial.    We agree with the

State.

          Section 31-4(a) of the Criminal Code of 1961 (Code)

states:

               "A person obstructs justice when, with

          intent to prevent the apprehension or ob-

          struct the prosecution or defense of any

          person, he knowingly commits any of the fol-

          lowing acts:

               (a) Destroys, alters, conceals[,] or

          disguises physical evidence, plants false

          evidence, [or] furnishes false informa-

          tion[.]"   720 ILCS 5/31-4(a) (West 2006).

          The State charged defendant, "with the intent to

obstruct the prosecution of himself for possessing drug parapher-


                               - 5 -
nalia, knowingly concealed physical evidence, in that he threw a

metal pipe and push-rod over a wooden privacy fence and out of

view while being pursued by police."

           This court must first determine whether defendant's

actions in this case legally constitute concealment under section

31-4(a) of the Code (720 ILCS 5/31-4(a) (West 2006)).     The

meaning of "conceal" is a question of law, which we review de

novo.   People v. Ehley, 381 Ill. App. 3d 937, 943, 887 N.E.2d

772, 778 (2008).

           The Code does not define the term "conceal."    When a

statute does not define a term, the term is to be given its plain

and ordinary meaning.   Price v. Philip Morris, Inc., 219 Ill. 2d

182, 243, 848 N.E.2d 1, 37 (2005).     "Conceal" is defined as

follows:   "1: to prevent disclosure or recognition of[,] 2: to

place out of sight[,] syn see HIDE."     Merriam-Webster's Colle-

giate Dictionary 238 (10th ed. 1998).     Based on the specific

facts in this case, we conclude defendant's actions did conceal

the evidence.

           Further, the trial court correctly determined that the

Second District's opinion in M.F. is distinguishable from the

case sub judice.   In M.F., the State alleged that M.F. knowingly

concealed evidence from police officer Phillip Brown with the

intent to obstruct his own prosecution by throwing Baggies

containing cocaine off a rooftop.      M.F., 315 Ill. App. 3d at 642,


                               - 6 -
734 N.E.2d at 173.   According to the facts in M.F., Officer Brown

was securing the front of a residence while other officers went

upstairs to execute a warrant.     M.F., 315 Ill. App. 3d at 643,

734 N.E.2d at 173.   Officer Brown heard the other officers knock

on the door and announce their presence.       M.F., 315 Ill. App. 3d

at 643, 734 N.E.2d at 173.   He then saw M.F. come out of a window

onto the roof of the building over the entrance.       M.F., 315 Ill.

App. 3d at 643, 734 N.E.2d at 173.       Officer Brown told M.F. not

to move.   M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173.      M.F.

twice reached into his pocket and each time made a throwing

motion toward the street behind Officer Brown, who was standing

on the sidewalk approximately 30 feet from M.F.       M.F., 315 Ill.

App. 3d at 643, 734 N.E.2d at 173.       Officer Brown was shining a

flashlight on M.F. but could not see what M.F. had in his hands.

M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173.      Another

officer grabbed M.F. through the window and pulled him back into

the building.   M.F., 315 Ill. App. 3d at 643, 734 N.E.2d at 173.

Officer Brown then looked in the direction M.F. had thrown the

objects and found three bags containing a rock-like substance,

which tested positive for cocaine, approximately 10 feet from

him.   M.F., 315 Ill. App. 3d at 643-44, 734 N.E.2d at 173-74.

           The defendant in M.F. argued "he did not conceal the

[B]aggies merely by throwing them away from his person, and they

were retrieved by the officer within seconds so that his


                                 - 7 -
prosecution was not obstructed."   M.F., 315 Ill. App. 3d at 646,

734 N.E.2d at 176.   The Second District Appellate Court stated:

          "Since the term 'conceal' is not defined by

          the statute and there is no case on point in

          Illinois addressing the issue of concealment

          based on this set of facts, we have examined

          cases from other jurisdictions that have

          applied this term to similar facts.   Other

          states have similar obstruction or

          evidence-tampering statutes making it a crime

          to alter, destroy, mutilate, suppress, con-

          ceal, or remove physical evidence with the

          intent to impair its verity or availability

          in an official legal proceeding or a criminal

          investigation."   (Emphasis in original.)

          M.F., 315 Ill. App. 3d at 646-47, 734 N.E.2d

          at 176.

After thoroughly discussing decisions from other jurisdictions,

the Second District stated:

               "It appears that, under the scenarios

          presented, the clear weight of authority from

          other states concludes that where a defendant

          merely drops, throws down, or abandons drugs

          in the vicinity of the defendant and in the


                               - 8 -
presence and view of the police, this conduct

does not constitute concealment that will

support an evidence-tampering or obstruction

charge, or a conviction that is additional to

and separate from the ongoing possessory

offense.

     Like other jurisdictions, this court

construes criminal statutes strictly, rather

than expansively.    The language used by the

legislature is the best indication of legis-

lative intent.    [Citation.]    Where the lan-

guage is plain and unambiguous, a court will

not read in exceptions, limitations, or con-

ditions that the legislature did not express,

nor should a court search for any subtle or

not readily apparent intention of the legis-

lature.    [Citation.]    Criminal or penal stat-

utes are to be strictly construed in favor of

an accused, and nothing should be taken by

intendment or implication beyond the obvious

or literal meaning of the statute.      [Cita-

tion.]    Absent a clearer legislative intent,

we conclude that when an individual who is

suspected of committing a possessory offense


                         - 9 -
          abandons evidence by dropping or throwing it

          to the ground in the presence of a police

          officer, such conduct does not constitute an

          act of concealment within the meaning of the

          statute that would sustain a conviction for

          the additional felony offense of obstructing

          justice."   M.F., 315 Ill. App. 3d at 650, 734

          N.E.2d at 178.

          However, in the case sub judice, defendant did not

merely abandon the evidence by throwing it to the ground in the

vicinity and view of the police officer who was shining a flash-

light on defendant.   Here, defendant took the more affirmative

act of throwing the evidence over a privacy fence and out of the

view of the police while defendant was fleeing from the police

down an alley at night.

          In a similar case, Hayes v. State, 634 So. 2d 1153

(Fla. App. 1994), the Florida appellate court upheld the defen-

dant's conviction for tampering with evidence where the defen-

dant, while being pursued by a police officer attempting to

arrest the defendant, pulled a Baggie containing crack cocaine

from his pants and dropped the Baggie into a drainage outlet.

The wet Baggie was retrieved from the drainage system.     Hayes,

634 So. 2d at 1154.

          In a similar Florida Supreme Court case, State v.


                              - 10 -
Jennings, 666 So. 2d 131 (Fla. 1995), the supreme court reversed

the trial court's order dismissing the charge of tampering with

physical evidence where the defendant, upon the approach of the

police, tossed alleged cocaine rocks into his mouth and swallowed

them.   The objects the defendant swallowed were never recovered.

           The Jennings court disagreed with Boice v. State, 560

So. 2d 1383 (Fla. App. 1990).    In Boice, the defendant purchased

a small bag of cocaine from an undercover police officer.    As

soon as the transaction was completed, the police surrounded the

defendant's vehicle.   The undercover officer observed the defen-

dant throw the bag of cocaine out the window of his car.    One of

the other officers retrieved the bag from the roadway where it

was sitting near the door on the driver's side of the defendant's

vehicle.   The reviewing court reversed the defendant's conviction

for tampering with evidence, finding that "[t]he defendant's act

of tossing the small bag of cocaine away from his person while in

the presence of the arresting officers at the scene of the

purchase [did] not rise to the level of conduct which constitutes

a concealment or removal of something for the purpose of impair-

ing its availability for the criminal trial" since the defendant

did not remove the cocaine from the immediate area of his arrest.

Boice, 560 So. 2d at 1384.

           The Jennings court disagreed with Boice "to the extent

it can be read to mean that tossing evidence away in the presence


                                - 11 -
of a law[-]enforcement officer does not, as a matter of law,

constitute a violation of the statute."      Jennings, 666 So. 2d at

133.   The Jennings court found:

           "Depending upon the circumstances, such an

           act could amount to tampering or concealing

           evidence.    An affirmative act of throwing

           evidence away constitutes more than mere

           abandonment.    We conclude that the trial

           court's ruling is rooted in an overly broad

           reading of Boice and find that swallowing an

           object clearly constitutes altering, destroy-

           ing, concealing, or removing a 'thing' within

           the meaning of section 918.13."    (Emphasis

           added.)     Jennings, 666 So. 2d at 133.

           In the case sub judice, defendant urges us to narrowly

interpret the meaning of "conceal," arguing that we should do so

in line with the M.F. case.     Defendant argues since (1) he

"abandoned" the evidence when he threw the evidence over the

fence in full view of the police officers without any reasonable

expectation that his action would not be viewed by the police and

(2) the evidence was quickly discovered by the police, his

actions cannot qualify as "concealment" under the obstruction-of-

justice statute.     As did the Florida Supreme Court in its deci-

sion in Jennings, this court declines to place such a narrow


                                 - 12 -
interpretation on the statute under the circumstances of this

case.   Defendant ran from the police down an alley at night.     The

police were in pursuit, not shining a flashlight on his every

move.   Defendant did not merely drop the evidence along his

flight path, but threw it over a six-foot, wooden privacy fence.

Defendant could have reasonably anticipated that the police may

not see him throw the evidence over the fence.    Fortunately for

the police, the area where defendant threw the evidence happened

to be a well-lit, empty parking lot, making retrieval of the

evidence possible.

            For the foregoing reasons, defendant's affirmative act

constitutes concealment of the evidence under the obstruction-of-

justice statute.

                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.    As part of our judgment, we grant the State its

statutory assessment of $50 against defendant as costs of this

appeal.

            Affirmed.

            McCULLOUGH, P.J., concurs.

            POPE, J., dissents.




                                  - 13 -
           JUSTICE POPE, dissenting:

           I respectfully dissent.    Although the majority attempts

to distinguish this case from M.F., in my opinion it is virtually

indistinguishable.   In M.F., the police were executing a search

warrant for narcotics at an upstairs apartment while Officer

Brown secured the front of the residence.     After hearing the

other officers knock at the door of the apartment and announce

their presence, Brown saw M.F. come out onto the roof and toss

what turned out to be narcotics toward the street behind Brown.

M.F. did not simply drop the items, nor did he simply abandon

them.   He threw them off the roof--clearly to avoid detection by

the officers executing the search warrant.

           The Second District found M.F.'s conduct did not

constitute obstructing justice based on concealment of evidence,

because he threw the drugs from a rooftop in the vicinity of a

police officer and the drugs were recovered within seconds.

"Under the circumstances, it does not appear that this act was

likely to either destroy the evidence or make recovery less

likely.   Therefore, even though respondent may have intended to

prevent the apprehension or obstruct the prosecution of himself

for the possession charge, throwing the drugs to the ground was

not an act of concealment that will sustain the additional

obstructing[-]justice offense."      M.F., 315 Ill. App. 3d at 650,

734 N.E.2d at 178-79.


                              - 14 -
          In the case sub judice, the officers were only a short

distance behind defendant, saw him throw the objects, and recov-

ered the same, in an open, well-lit area within seconds.    Defen-

dant simply did not conceal anything.

          The Florida cases cited by the majority, Hayes and

Jennings, are clearly distinguishable.   In Hayes, the defendant

did not merely throw the items in the presence of police

officers--he stuffed them into a drainage outlet.     Hayes, 634 So.

2d at 1154.   In Jennings, the defendant swallowed the crack

cocaine, resulting in the destruction of the evidence.     Jennings,

666 So. 2d at 132.   Jennings is quite similar to the Second

District's decision in People v. Brake, 336 Ill. App. 3d 464,

465, 783 N.E.2d 1084, 1085 (2003), where the court affirmed a

defendant's conviction for obstruction when he swallowed a bag of

drugs in the presence of a police officer.    I agree with the

reasoning in Hayes, Jennings, and Brake.     The acts in those cases

amounted to concealment.

          However, other out-of-state cases with similar facts to

the case sub judice support a determination defendant here did

not conceal evidence.   See Vigue v. State, 987 P.2d 204, 205

(Alaska App. 1999) (overturned the defendant's tampering-with-

evidence conviction, which was based on defendant dropping

cocaine to the ground when a police officer approached him);

Commonwealth v. Delgado, 544 Pa. 591, 592-93, 679 A.2d 223, 224


                              - 15 -
(1996) (overturned the defendant's conviction, finding act of

discarding contraband in plain view of police (the defendant

threw a bag of cocaine on the roof of a small garage while being

pursued by police officers who (1) saw the defendant throw the

object and (2) quickly recovered the object) does not constitute

destruction or concealment of evidence); State v. Fuqua, 303 N.J.

Super. 40, 47, 696 A.2d 44, 48 (1997) (held the New Jersey

hindering statute was "sensibly construed to refer to evidence of

a completed criminal act, not a current possessory crime" and did

not apply where defendant had cocaine concealed in his socks);

State v. Sharpless, 314 N.J. Super. 440, 459, 715 A.2d 333, 343

(1998) (act of discarding contraband in plain view of the police

does not rise to a level of conduct that constitutes destruction

or concealment of evidence); State v. Patton, 898 S.W.2d 732

(Tenn. Crim. App. 1994) (affirmed dismissal of evidence-tampering

indictment that alleged the defendant abandoned a bag of cannabis

by tossing it aside while being pursued by police officers);

Hollingsworth v. State, 15 S.W.3d 586, 590 (Tex. App. 2000)

(reversed evidence-tampering conviction, that was based on the

defendant spitting out cocaine he had in his mouth in front of

police officers, where evidence showed defendant was transporting

crack cocaine in a customary manner and was not trying to impair

its availability as evidence); Boice, 560 So. 2d 1384 (held the

defendant's act of tossing away a bag of crack cocaine in the


                             - 16 -
presence of police officers amounted only to abandonment and not

concealment sufficient to convict the defendant).

          In Anderson v. State, 123 P.3d 1110, 1111 (Alaska App.

2005), which was decided subsequent to M.F., the defendant was

involved in a car chase with police after he had broken into a

house and shot and robbed one of the occupants.   During the

chase, the defendant tossed items out of the car, including a

handgun, magazine for the handgun, and ammunition.     Anderson, 123

P.3d at 1111-12.   The State charged the defendant with a variety

of offenses, including tampering with evidence, of which he was

convicted.   Anderson, 123 P.3d at 1112.   On review, the Alaskan

appellate court "conclude[d] that [the defendant's] conduct of

tossing the articles from the car did not constitute the crime of

evidence tampering."   Anderson, 123 P.3d at 1112.   According to

the court:

          "[I]f we were to give a broad interpretation

          to the words 'remove', 'conceal', and 'al-

          ter', then a person who shoplifted a candy

          bar would commit three separate acts of evi-

          dence tampering--three separate felonies--

          when they (1) walked away from the store with

          the candy, (2) unwrapped the candy and depos-

          ited the wrapper in a trash receptacle, and

          then (3) ate the candy.   It seems implausible


                              - 17 -
           that the legislature intended the statute to

           be applied in this manner."    Anderson, 123

           P.3d at 1118.

However, the Alaskan appellate court stated it was not holding

the "act of tossing away evidence can never constitute evidence

tampering."     Anderson, 123 P.3d at 1119.   According to the court,

"[t]he test appears to be whether the defendant disposed of the

evidence in a manner that destroyed it or that made its recovery

substantially more difficult or impossible."      Anderson, 123 P.3d

at 1119.

           While defendant here clearly did not want to have the

items in his possession when the police eventually apprehended

him, his act of throwing the items did not conceal, alter, or

destroy them.    The police officers saw him throw the items, knew

the area where the items were thrown, even though the items were

temporarily out of their sight, and were able to easily recover

the items within seconds.    Defendant's actions neither destroyed

nor disguised the crack pipe and push rod nor made the recovery

of those items either difficult or impossible.     If the items had

been destroyed or their recovery made substantially more diffi-

cult or impossible, then an obstruction conviction would have

been proper.    See Anderson, 123 P.3d at 1119.    As in M.F., the

evidence of concealment in this case was insufficient to sustain

defendant's conviction for obstruction of justice.


                                - 18 -
          Lastly, I note a jury found defendant not guilty of

possession of the very paraphernalia that forms the basis for his

conviction for obstruction.   At most, defendant here was guilty

of attempt (obstruction of justice).




                              - 19 -
