                             ILLINOIS OFFICIAL REPORTS
                                            Appellate Court




                             People v. Harden, 2011 IL App (1st) 092309




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



District & No.               First District, 2d Division
                             Docket No. 1–09–2309


Filed                        June 7, 2011
Rehearing denied             July 6, 2011
Held                         Defendant’s conviction for unlawful possession of a controlled
(Note: This syllabus         substance with intent to deliver was upheld over his contentions that the
constitutes no part of the   testimony of the arresting officers was implausible, contradictory and
opinion of the court but     refuted by more credible evidence, that the chemist who tested the
has been prepared by the     seized substance may have improperly commingled the substance
Reporter of Decisions for    before testing, that the trial court erred in allowing his impeachment
the convenience of the       with a prior conviction and that he was entitled to two more days’ credit
reader.)                     for his presentence incarceration, since the jury reasonably concluded
                             that the officers’ testimony on the relevant issues was credible, the
                             chemist’s testimony justified the jury’s conclusion that a sample of the
                             substance from each of the 20 packages was tested and that the
                             combined weight of the substances, 1.2 grams, tested positive for
                             cocaine, the mere fact that defendant’s prior was offense identical to the
                             charged offense did not preclude its use for impeachment, after
                             balancing its probative value against its prejudicial effect, could be used
                             for impeachment, and based on the State’s agreement, the mittimus was
                             corrected to reflect two additional days of presentence credit.
Decision Under               Appeal from the Circuit Court of Cook County, No. 07–C6–61780; the
Review                       Hon. Brian Flaherty, Judge, presiding.



Judgment                     Affirmed; mittimus corrected.


Counsel on                   Michael J. Pelletier, Alan D. Goldberg, and Deborah K. Pugh, all of
Appeal                       State Appellate Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Eve
                             Reilly, and Whitney Bond, Assistant State’s Attorneys, of counsel), for
                             the People.


Panel                        JUSTICE HARRIS delivered the judgment of the court, with
                             opinion.
                             Presiding Justice Cunningham and Justice Karnezis concurred in the
                             judgment and opinion.



                                                OPINION

¶1          Defendant, Learthur Harden, was convicted after a jury trial of possession of a controlled
        substance with intent to deliver 1.2 grams of cocaine. The trial court sentenced Harden to 14
        years’ imprisonment as a Class X offender. On appeal, Harden contends: (1) the State did not
        prove him guilty beyond a reasonable doubt where the officers’ testimony was implausible,
        contradictory, and refuted by more credible evidence; (2) the State failed to prove him guilty
        of possessing more than 1 gram but less than 15 grams of cocaine with intent to deliver,
        where the chemist did not testify that he tested all 20 bags and may have improperly
        commingled the substances before testing; (3) the trial court erred in allowing the State to
        impeach him with a prior conviction for possession with intent to deliver a controlled
        substance; and (4) he is entitled to two days of sentencing credit.1

¶2                                      JURISDICTION
¶3          The trial court sentenced Harden on August 19, 2009, and he filed a timely notice of


                1
                  Initially, Harden argued he was entitled to three days of credit. Harden now agrees with the
        State that he should not be given credit for the day he was sentenced. Therefore, Harden contends
        in his reply brief that he is entitled to two days’ credit.

                                                     -2-
     appeal on August 27, 2009. Accordingly, this court has jurisdiction pursuant to article VI,
     section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,
     governing appeals from a final judgment of conviction in a criminal case entered below. Ill.
     Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

¶4                                      BACKGROUND
¶5       At Harden’s trial, Lieutenant David Basile testified for the State. Lieutenant Basile stated
     that he has been a Chicago Heights police officer for almost 21 years, the last 15 years in the
     tactical units conducting narcotics investigations. Lieutenant Basile testified that 75% of his
     felony arrests were cocaine-related. Over defense counsel’s objections, the court qualified
     Lieutenant Basile as an expert witness in narcotics field investigations.
¶6       On the evening of October 4, 2007, Lieutenant Basile worked as a surveillance officer
     in an operation targeting drug dealers. As a visual aid, he used a pair of “military high-spec,
     low-light binoculars” that aids vision when external light is low. Lieutenant Basile testified
     that he has used these binoculars in his narcotics work for the past eight years. On that
     evening, Lieutenant Basile set up surveillance in the area of Fifth Avenue in Chicago
     Heights. There were three or four working light posts on the street. He parked his unmarked
     car across the street, at a 45-degree angle from a house located at 1321 Fifth Avenue.
     Lieutenant Basile testified that from this vantage point, he could clearly see the house at 1321
     Fifth Avenue as well as the side of the house. No fences or other houses obstructed his view.
     Approximately 10 minutes later, he observed a male walk into the alley adjacent to 1321
     Fifth Avenue, with a female following him. The distance between Lieutenant Basile and the
     male was 100 feet. Lieutenant Basile identified Harden as the male he observed walk into
     the alley.
¶7       Using the binoculars, Lieutenant Basile saw the female hand Harden a piece of paper that
     appeared to be United States currency. Harden took the money and ran to the southeast rear
     of the house where there was a three-foot-tall pillar. He leaned down and picked up a plastic
     bag from the ground, took out several items before setting the bag down, and ran back to the
     female. Harden then handed her the items from the bag. Lieutenant Basile testified that he
     never lost sight of Harden during the entire transaction. After the female left, Harden came
     out of the alley and walked in front of 1321 Fifth Avenue. Another male approached him and
     handed Harden some money. Harden put the money in his pocket, ran to the side of the
     building by the pillar, leaned over, and pulled some items out of the bag that was on the
     ground. Harden returned to the front yard and handed the male the items. After the male left,
     no one else was in the area other than Harden.
¶8       Based on his experience and training, Lieutenant Basile knew he had just witnessed two
     narcotics transactions. He radioed fellow officers in the area, informed them that the subject
     was a black male wearing a blue and white striped shirt, and advised them to detain Harden.
     Lieutenant Basile never lost sight of Harden the entire time. Less than a minute later, two
     squad cars came down the street and Detective Cole detained Harden in front of the house
     at 1321 Fifth Avenue. Lieutenant Basile stated that he could see Detective Cole talking to
     Harden, and less than a minute later both were on the ground. After receiving information
     from Lieutenant Basile, Officer Fenimore went to the southeast pillar to retrieve the plastic

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       bag.
¶9          On cross-examination, Lieutenant Basile stated that his undercover vehicle was a 1991
       Astro van with tinted windows. Between the alley and 1321 Fifth Avenue was a vacant lot.
       A “decorator wrought iron fence” separated the lot from 1321 Fifth Avenue. Lieutenant
       Basile did not know for certain whether there was any shrubbery around the fence. He also
       stated that although the binoculars allowed him to see details and facial features quite well
       at night, they did not enable him to see as well as he could during the day. Lieutenant Basile
       stated that he did not use the binoculars the entire time, and without them, he could not tell
       whether anyone else was at the rear of 1321 Fifth Avenue. On redirect examination,
       Lieutenant Basile clarified that the decorator fence had slats wide enough apart so that one
       could easily see through to the inside.
¶ 10        Detective Cole testified that on October 4, 2007, he was part of the team with Lieutenant
       Basile conducting a narcotics investigation. After speaking with Basile, Detective Cole went
       to 1321 Fifth Avenue, where he observed a male wearing a blue and white striped shirt. He
       identified Harden as the male he saw that night. Detective Cole did not see anyone but
       Harden at the location. He approached Harden and attempted to conduct a field interview.
       Harden became “very belligerent” and Detective Cole told him to place his hands on a gated
       wall in front of 1321 Fifth Avenue. Detective Cole spoke to Detective Fenimore over the
       radio and then he performed a custodial search of Harden. As Detective Cole moved to
       squeeze Harden’s right pants pocket, Harden “dropped his right hand from the wall
       immediately.” The entire time, Harden was telling Detective Cole that the police needed to
       find someone else to pick on. Detective Cole felt an object in Harden’s right pants pocket
       which he believed was a knife or a box cutter. As Detective Cole felt the object, Harden
       dropped his right hand again. Detective Cole told Harden to place his hand back on the wall.
       He then tried to touch the object again, whereby Harden’s hand immediately came down to
       his right pocket. Detective Cole then “struck him with an open hand in his ear to stun him.”
       He took Harden to the ground and placed him under arrest. Detective Cole testified that after
       hitting Harden in the ear, he put his foot in front of Harden so that he could use his weight
       to “trip” him. Detective Cole stated it was necessary to “control [Harden’s] hands where he
       couldn’t get to that blade in his pocket.” Once he got Harden on the ground, Detective Cole
       “cuffed” him and removed a box cutter from his right pants pocket. Harden was taken to the
       Chicago Heights police station, where he asked to go to the hospital. Detective Cole stated
       that at the time, Harden did not have any obvious injuries. Along with the box cutter, $95 in
       cash was recovered from Harden.
¶ 11        Detective Fenimore testified that on October 4, 2007, he worked with Detective Cole in
       a narcotics investigation unit. They received information from Lieutenant Basile that he had
       just witnessed two hand-to-hand narcotics transactions and that the suspect was wearing a
       blue and white striped shirt. He and Detective Cole proceeded to 1321 Fifth Avenue, where
       they encountered a male wearing a blue and white striped shirt. Detective Fenimore
       identified Harden as the person they encountered. After speaking with Lieutenant Basile,
       Detective Cole approached Harden and Detective Fenimore went to the southeast rear of the
       residence toward the porch area. He observed a pillar made of brick, and nearby on the
       ground, he saw a clear plastic bag containing smaller purple bags. Detective Fenimore
       conducted a field test on the items in the bag and the results were positive for suspected

                                                -4-
       narcotics. He further stated that the area around the pillar contained no debris.
¶ 12       On cross-examination, Detective Fenimore stated that nothing was covering the plastic
       bag on the ground. He testified that he found the bag to the left of, and slightly back from,
       the pillar “approximately a foot under the porch area.” Detective Fenimore stated that when
       he first got to the location and exited his vehicle, Harden was in the front of 1321 Fifth
       Avenue.
¶ 13       David Vanwingeren testified that he is a forensic scientist specializing in drug chemistry
       with the Illinois State Police. He testified as an expert in forensic chemistry. Vanwingeren
       testified that the evidence package contained 1 clear plastic bag with 20 purple zip bags
       inside, each containing “a small amount of chunky substance.” Vanwingeren then testified
       as to his testing process:
                    “Q. Can you explain the process of weighing these items to the jury?
                    A. I took a disposable weigh dish, placed it on the balance, zeroed out the
                balance, took all 20 items, placed it onto the balance, and then I got a gross weight
                of that, and then I took the chunky substance out of each package and placed the
                packaging back onto the balance getting the weight of the packaging and then just
                subtracted the weight for a net weight of the chunky substance.
                                                  ***
                    Q. And what did you determine that that weight was?
                    A. 1.2 grams.
                    Q. Now, after ascertaining the weight, did you analyze the chunky substances?
                    A. Yes, I did.
                    Q. How many tests did you perform?
                    A. I performed two tests, confirmatory test and preliminary test.
                    Q. And could you explain the preliminary test you performed first?
                                                  ***
                    A. It is a simple color test, and I just took a small amount of chunky substance,
                placed some of the coloring agent on it. At that point, depending on if there is or is
                not a drug present, or even what type of drug, a color change will or will not occur
                ***, and in this case a blue color change happened, which is an indication that
                cocaine is present.
                    Q. And after you conducted this preliminary test, what did you do next?
                    A. Then I ran our confirmatory test, which is I take a small amount of sample,
                [and] run it on our GCMS ***.
                                                  ***
                    Q. And what was the result of the GCMS test?
                    A. It was positive for cocaine.
                                                  ***
                    Q. And after completing your analysis of this chunky substance in determining
                the presence of cocaine, what did you do with the evidence?

                                                -5-
                    A. I sealed it back up into some plastic bags and put it back into the original
                evidence bag and placed it back into my locked storage bins at my desk ***.”
       After Vanwingeren’s testimony, the State rested and Harden moved for a directed finding or
       directed verdict of not guilty. The trial court denied Harden’s motion.
¶ 14       Walter Cole testified for the defense. He stated that he has been friends with Harden for
       about two years. On the night of October 4, 2007, he and Harden were going to Mike’s store
       when officers stopped them. Mike’s store is located on Fifth Avenue. Rayanna Harper,
       Harden’s girlfriend at the time, accompanied them to the store. When they got to the store,
       Rayanna went inside and Walter and Harden waited for her outside. They decided to leave
       because Harper was “taking too long in the store.” They stood in front of 1321 Fifth Avenue
       waiting for Harper and talked with some people who were there. Walter stated that about 10
       people were out that night. About three minutes later, police cars “[came] up from nowhere”
       and started searching the 10 people there, including Walter and Harden. The police
       handcuffed Harden, put him in the car and began searching the house. Officer Cole then told
       Walter he could leave. Harden told Walter to tell his family what had happened, and Officer
       Cole told Harden to be quiet. Harden stated that he did not have to be quiet because he knew
       his constitutional rights. Officer Cole then opened the police car door and “punched [Harden]
       in the eye.” Walter testified that he spoke with state investigator Thomas and told him the
       same information. He further stated that while he was with Harden, Walter never saw him
       take money in exchange for an unknown package from a black female or a black male.
       Harden never went to the back of the house at 1321 Fifth Avenue, nor did he ever handle a
       plastic bag.
¶ 15       On cross-examination, Walter stated that he first met up with Harden at around 9 p.m.
       and he was with Harper. He could not recall whether Winston Cole was out that evening. He
       stated that the police searched six people, including him and Harden. After Harden was
       arrested, his sisters Winter and Danielle Cole showed up. When Harden was in the police car,
       Harper was walking out of the store toward them. Walter did not recall that Harden was ever
       on the ground during his arrest. Walter testified that he never went to the police station to
       report Detective Cole punching Harden in the eye. When asked about his conversation with
       state investigator Thomas, Walter could not recall whether he told Thomas that he was with
       Harden all day on October 4, 2007. On redirect, Walter stated that he did not go to the police
       about the incident because Harden’s family said they would handle the situation.
¶ 16       Winter Cole, Harden’s sister, testified that around 8 p.m. on October 4, 2007, she was
       outside talking to friends when Walter and Harper approached her. Winter then went to Fifth
       Avenue, where she saw her brother in the police car. Other people were out in the area that
       evening, so “it was pretty noisy.” The window of the police car was down, and Winter asked
       Harden whether he was alright. Harden told her that he did not do anything and that the
       police would probably let him go soon. He told Winter to go across the street to wait. Winter
       testified that a police officer then came and “started cussing us out, telling us to move.”
       Harden told the officer that he was violating their civil rights. As she started walking across
       the street, Winter heard Harden say “he hit me in the eye.” She did not see the police officer
       actually hit Harden. On cross-examination, Winter stated that she was out for about 15 to 20
       minutes before walking over to Fifth Avenue. As she was walking toward Fifth Avenue, she
       passed her father, Winston Cole, who was walking away from Fifth Avenue to her sister

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       Danielle’s house. Winter testified that Walter and Harper accompanied her to Fifth Avenue,
       and Danielle arrived at the scene later. Winter stated that she relayed the same information
       to investigator Thomas when she subsequently spoke to him. Winter did not speak to the
       Chicago Heights police department about the police brutality suffered by Harden because
       “we got lawyers for that.”
¶ 17       Winston Cole testified that on October 4, 2007, he was in a parking lot down the street
       from 1321 Fifth Avenue. He had been out for about two hours. He was not sure whether he
       had seen Harden in the area before the police came because about 25 to 30 people were out
       that night. He then saw a police car approach Harden and Walter, and the police officers
       began talking to them. They handcuffed Harden, and let Walter go. Winston stated that “the
       black police officer hit [Harden].” He testified that he was in the area for the entire incident.
       Winston gave the investigator the same information that he testified to in court. On cross-
       examination, Winston stated that when the police pulled up to Walter and Harden, they were
       the only ones in front of 1321 Fifth Avenue, and they were “the only people I saw the police
       detaining. I didn’t see anyone else.” While Harden was being arrested, Winston stated that
       he never saw Harden on the ground. He testified that he saw the police “being pretty rough
       and hit [Harden]” when he was in the back of the police car. After the police left the area,
       Winston walked to his daughter Danielle’s house. Winston stated that he did not see Winter
       or Danielle or Harper outside when Harden was arrested. Winston never informed the police
       department or the State’s Attorney’s office of the alleged police brutality against Harden. On
       redirect, Winston stated that he did not know if there were other people in front of 1321 Fifth
       Avenue at the time.
¶ 18       Rayanna Harper testified that on October 4, 2007, she was Harden’s girlfriend. She stated
       that she was with Harden most of the day but that he helped someone remodel a house on
       Fifth Avenue. That evening, Harper “mingle[d]” with others in the neighborhood. She went
       to Mike’s store with Harden’s sister Winter while Harden went his separate way. Harper
       testified that she looked across the alley and saw Harden walking because “it is very open
       on Fifth Avenue.” She did not see anyone with Harden. Harper went inside the store, and two
       minutes later they walked out and saw Harden in the police car. They tried to approach the
       police car to find out what had happened, but the police officers told them “to keep walking.”
       As they walked, they saw a police officer “hit [Harden] in the eye.”
¶ 19       Learthur Harden testified in his own defense. He stated that on October 4, 2007, at 7 or
       8 a.m., he went to work with Parish X at the Final Call. Parish was working on a house down
       the street from Mike’s store. Harden testified that he worked 12 or 13 hours that day. After
       work, he went to Danielle’s house because his one-year-old son was there. Harper, Winter,
       Danielle, and Harden’s stepfather were all at the house. Harden stated that he changed his
       shirt, then left with Harper and Walter to go to the store for milk and Pampers. He was
       wearing a darker flannel shirt. When they got to the store, Harden saw that it had no milk so
       he walked back outside. Harper stayed in the store “to buy something to drink.” Harden and
       Walter started walking on Fifth Avenue back to Danielle’s house.
¶ 20       As they neared 1321 Fifth Avenue, they passed some people walking toward the store
       and stopped to talk. There were about six people out in front of 1321 Fifth Avenue. As they
       talked, a police car pulled up and the officers told them not to move. Four of the six people,
       including Harden and Walter, were told to “get up against the gate.” An officer grabbed

                                                 -7-
       Harden and then made a call on his radio. After the call, the officer placed handcuffs on
       Harden and put him in the police car. Harden testified that he never resisted arrest and the
       officers never searched him. After searching the others, the officers let them go. Harden
       stated that after he was arrested, his sister and Harper came to the police car. One of the
       officers told them to get away from the car and started “pushing them.” Harden told the
       officer that they had a right to observe what was happening, and Officer Cole told him “to
       shut the ‘F’ up.” Harden then told the officer that he knew his constitutional rights. Officer
       Cole opened the police car door, hit Harden in the eye, and “tried to choke [him] out.”
       Harden “started calling [Officer Cole] a bunch of names, called him all kinds of insults.”
¶ 21        On the way to the police station, Harden continued to scream at him. When they got to
       the station, Officer Cole opened the back door, grabbed Harden, took him into the station and
       threw Harden against the wall. Harden testified that he slid down the wall onto a bench. The
       police took off his handcuffs and then told Harden to handcuff himself to the rails. When
       Harden refused, they handcuffed him to the rails. Harden asked for medical help and they
       called an ambulance. One of the officers took him to St. James Hospital where a doctor
       treated his eye wound. Harden did not require stitches. When Harden returned to the police
       station, they took a photograph of him.
¶ 22        Harden testified that he never went to the back of 1321 Fifth Avenue that evening. He
       denied having any kind of transaction with an unknown female or unknown black male in
       which he gave a packet in exchange for cash. He had nothing to do with the plastic bag
       containing packets found in the back of 1321 Fifth Avenue. Harden further testified that a
       total of around 25 people were out in the area that evening. He did not recall seeing his father
       or sister Danielle out that evening. Harden acknowledged that he had a prior conviction for
       possession of narcotics, but that “nothing [was] going to prevent [him] from telling the truth
       today.”
¶ 23        On cross-examination, Harden stated that he could not recall whether he had changed his
       shirt after coming back from work on October 4, 2007. He went to Danielle’s house and then
       left with Harper and Walter to go to the store. Harden stated that he never was in the alley
       behind the store and that he and Walter waited for Harper in front of the store. When she
       came out, Harden and Walter began walking toward 1321 Fifth Avenue. Harper was behind
       them, but not walking with them. When the officers pulled up to them, “[t]hey jumped out
       of their car and said don’t move.” Officer Cole had his gun drawn. The police told four of
       the six people in front of the house to put their hands on the wall. Harden stated that the
       police recovered a box cutter and $95 from his person. On redirect, Harden stated that he
       used the box cutter in his remodeling work.
¶ 24        In rebuttal, the State called Joseph Thomas as a witness. Thomas testified that he was
       employed by the Cook County State’s Attorney’s office as an investigator. An investigator
       interviews witnesses in cases coming before the court. Thomas stated that he interviewed
       several witnesses in connection with Harden’s case. One witness was Walter Cole. Thomas
       contacted Cole on January 16, 2009, and asked him about the events of October 4, 2007.
       Cole told Thomas that he was with Harden for several hours before Harden’s arrest. He never
       stated that the police searched him or that Harden had been beaten and punched while he sat
       in the back of the police car. Thomas also interviewed Winter Cole on February 24, 2009.
       Winter stated that Winston was not present when Harden was arrested, and she did not state

                                                 -8-
       that Harden was punched and beaten while in the police car. On cross-examination, Thomas
       stated that he never explicitly asked Walter whether he had been searched by the police, nor
       whether the police punched Harden. He also did not ask Winter whether her father was
       present before or after Harden’s arrest. However, Walter and Winter did not volunteer any
       of the information either.
¶ 25       The jury found Harden guilty of possession of a controlled substance and possession of
       a controlled substance with intent to deliver. Harden filed a motion for a new trial in which
       he argued for the first time that the State did not prove he had possession of 1.2 grams of
       cocaine. The trial court denied Harden’s motion. After merging the counts, the trial court
       sentenced Harden to 14 years’ imprisonment. Harden filed this timely appeal.

¶ 26                                        ANALYSIS
¶ 27        Harden’s first contention is that the State’s evidence was insufficient to support his
       conviction. When presented with a challenge to the sufficiency of the evidence, this court
       must determine whether, after viewing the evidence in the light most favorable to the
       prosecution, any rational trier of fact could have found the essential elements of the crime
       beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). To establish guilt
       of the offense of possession of a controlled substance with intent to deliver, the State must
       show the defendant (1) had knowledge of the presence of narcotics; (2) had possession or
       control of the narcotics; and (3) intended to deliver the narcotics. People v. Robinson, 167
       Ill. 2d 397, 407 (1995). Knowledge may be proved by showing that the defendant knew
       narcotics existed in the place where it was recovered. People v. Smith, 288 Ill. App. 3d 820,
       824 (1997). Furthermore, evidence that the defendant was aware of, and exercised control
       over, the drugs can establish constructive possession. People v. Jones, 295 Ill. App. 3d 444,
       453 (1998). “[W]here the finding of guilt depends on eyewitness testimony, a reviewing
       court must decide whether, in light of the record, a fact finder could reasonably accept the
       testimony as true beyond a reasonable doubt.” People v. Cunningham, 212 Ill. 2d 274, 279
       (2004).
¶ 28        At Harden’s trial, Lieutenant Basile testified that on the evening of October 4, 2007, he
       took part in a surveillance operation targeting drug dealers. Using “military high-spec, low-
       light binoculars” to aid his vision, Lieutenant Basile observed two transactions
       approximately 100 feet away in front of 1321 Fifth Avenue. In each, a male wearing a blue
       and white striped shirt received money from a person then ran to a pillar on the southeast rear
       corner of the house, picked up a plastic bag from the ground and removed several items from
       the bag. He then ran back to the person with the items. Although it was dark, Lieutenant
       Basile testified, there were three or four working street lamps in the area, and the special
       binoculars allowed him to see details and facial features quite well. Based on his 15 years’
       experience in narcotics investigations, Lieutenant Basile knew he had just witnessed two
       narcotics transactions.
¶ 29        Detective Fenimore testified that after hearing from Lieutenant Basile, he and Detective
       Cole proceeded to 1321 Fifth Avenue, where they encountered a male wearing a blue and
       white striped shirt. He identified Harden as the male in the blue and white striped shirt. As
       Detective Cole approached Harden, Detective Fenimore went to the southeast rear of the

                                                -9-
       residence toward the porch area where he observed a pillar made of brick. Nearby on the
       ground, about a foot under the porch, he saw a clear plastic bag containing smaller purple
       bags. He stated that the area around the pillar contained no debris. Detective Fenimore
       conducted a field test on the items in the bag and the results were positive for suspect
       narcotics.
¶ 30        Detective Cole testified that after communicating with Lieutenant Basile, he and
       Detective Fenimore proceeded to 1321 Fifth Avenue, where they encountered a male wearing
       a blue and white striped shirt. He identified Harden as the male they saw that evening; he did
       not observe anyone else in the area. As Detective Cole attempted to interview Harden,
       Harden became “very belligerent.” Detective Cole asked Harden to place his hands on the
       wall, and as he searched Harden’s right pants pocket he felt something which he believed
       was a knife or box-cutter. Harden’s hand immediately came down. Each time Detective Cole
       attempted to touch the item in his pocket, Harden’s hand came down from the wall.
       Detective Cole struck Harden on the ear to stun him, then took Harden to the ground by
       putting his foot in front and tripping him. Detective Cole stated that taking Harden to the
       ground in such manner was necessary to control his hands. A box cutter and $95 were
       recovered from Harden.
¶ 31        Forensic scientist David Vanwingeren testified that he received the evidence package
       containing 1 clear plastic bag with 20 purple zip bags inside. Each zip bag contained “a small
       amount of chunky substance.” The “chunky substances” tested positive for cocaine, and the
       weight of the substances amounted to 1.2 grams. In the light most favorable to the
       prosecution, the evidence supports the finding that Harden committed the offense of
       possession of a controlled substance with intent to deliver beyond a reasonable doubt.
¶ 32        Harden disagrees, arguing that the officers’ “implausible” and “contradictory” testimony
       cannot support his conviction where it was refuted by the defense witnesses’ more credible
       testimony. It is the jury’s function to assess the credibility of the witnesses, the weight given
       to their testimony, and the inferences to be drawn from the evidence. People v. Tenney, 205
       Ill. 2d 411, 428 (2002). “Testimony may be found insufficient *** only where the record
       evidence compels the conclusion that no reasonable person could accept it beyond a
       reasonable doubt.” Cunningham, 212 Ill. 2d at 280.
¶ 33        Harden contends it is implausible that Lieutenant Basile could see the rear of 1321 Fifth
       Avenue at night while parked across the street at a 45-degree angle, especially since a
       wrought iron fence bordered the property. Also, Harden points to Lieutenant Basile’s
       statement that the plastic bag was on the ground in full view as contradicting Detective
       Fenimore’s testimony that he found the plastic bag about a foot under the porch. Although
       Lieutenant Basile, Detective Fenimore, and Detective Cole testified that Harden was the only
       person outside of 1321 Fifth Avenue at the time of his arrest, Harden’s witnesses all testified
       that a number of people were out in the area that evening and as many as 6 to 10 people were
       outside of 1321 Fifth Avenue at the time of the arrest.
¶ 34        Furthermore, Detective Cole’s testimony about his encounter with Harden, that he struck
       Harden with an open hand on the ear to “stun him” but there were no visible injuries, did not
       match the evidence. A photograph taken of Harden after his arrest showed an eye injury
       requiring butterfly stitches. However, defense witnesses’ consistent accounts that Detective


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       Cole struck Harden in the eye after Harden was placed in the police car matched the
       photographic evidence. Although Harden acknowledges that the testimony of defense
       witnesses contained contradictions “with regard to minor issues,” he contends that it was
       more credible than the officers’ testimony. Harden asks this court to reverse his conviction
       citing as support People v. Johnson, 191 Ill. App. 3d 940, 946 (1989).
¶ 35       Johnson is distinguishable from the case at bar. In Johnson, the State’s principal witness
       was narcotics agent Theodore Rizo. Rizo testified that he and an informant, Angel Luna,
       entered a tavern where they planned to purchase cocaine. Approximately 11 other agents
       were in the area conducting surveillance. Johnson, 191 Ill. App. 3d at 941. The court in
       Johnson noted the concerns about Rizo’s testimony; that he never explained why he could
       not produce Luna or any of the other agents as witnesses to corroborate his testimony; why
       he waited from August 10, 1984, until November 18, 1985, before filing charges; and why
       there was a lapse of two weeks from the time Rizo allegedly received the narcotics to when
       he brought the drugs to the crime laboratory. Johnson, 191 Ill. App. 3d at 946-47. The court
       found the testimony of Rizo suspect and held that “ ‘his uncorroborated testimony is
       insufficient to prove the defendant guilty beyond a reasonable doubt.’ ” Johnson, 191 Ill.
       App. 3d at 947 (quoting People v. Quintana, 91 Ill. App. 2d 95, 99 (1968)).
¶ 36       Here, although Lieutenant Basile was the only officer to observe the transactions, the
       portions of his testimony used to prove the elements of Harden’s conviction were
       substantially corroborated by the testimony of Detectives Fenimore and Cole. Whether the
       jury believed that Lieutenant Basile could actually see the rear of 1321 Fifth Avenue from
       his parked vehicle, or view the plastic bag that was found under the porch, is a credibility
       determination. The jury viewed photographs of the surveillance area, saw the vantage point
       of Lieutenant Basile in relation to 1321 Fifth Avenue, and observed the demeanor of all the
       witnesses. As such, Lieutenant Basile’s statements directly supporting Harden’s conviction
       for possession of a controlled substance with intent to deliver “could reasonably be accepted
       by the fact finder *** as true beyond a reasonable doubt.” Cunningham, 212 Ill. 2d at 285.
¶ 37       Detective Cole did testify that he hit Harden only once on the ear, which appears to
       conflict with the photograph of Harden’s eye injury. However, he also testified that he took
       Harden to the ground by tripping him in order to control Harden’s hands. Harden may have
       received the eye injury depicted in the photograph when Detective Cole forced him to the
       ground. Nonetheless, when flaws in the testimony exist it is for the fact finder to judge how
       the inconsistencies affect the credibility of the testimony as a whole. Cunningham, 212 Ill.
       2d at 283. Despite the contradiction between Detective Cole’s account of how he hit Harden
       and the photograph of Harden’s eye injury, the jury could have reasonably found credible the
       portion of Detective Cole’s testimony corroborating Lieutenant Basile’s account of the
       transaction.
¶ 38       Harden also contends the officers’ testimony that Harden was the only one in front of
       1321 Fifth Avenue that evening was contradicted by defense witnesses’ testimony. He argues
       that the State misstated Lieutenant Basile’s testimony during closing argument by claiming
       that Lieutenant Basile did not say “that there was only one person” on the street. According
       to Harden, this misrepresentation proves that “it was the defense witnesses–not the
       officers–who were credible." The number of people on the street when Harden was arrested
       is collateral to the relevant issue of whether Harden possessed 1.2 grams of cocaine with the

                                               -11-
       intent to deliver. See People v. Myles, 257 Ill. App. 3d 872, 884 (1994). Furthermore, as
       discussed above, the trier of fact resolves any factual disputes arising from conflicting or
       contradictory testimony. People v. Hendricks, 137 Ill. 2d 31, 65 (1990). A reviewing court
       must not substitute its judgment for that of the fact finder on issues of the witnesses’
       credibility and the weight to be given to their testimony. People v. Evans, 209 Ill. 2d 194,
       211 (2004). As discussed above, the jury reasonably concluded that the officers’ testimony
       on the relevant issues was credible and proved the elements of the offense beyond a
       reasonable doubt.
¶ 39        Harden next contends that the State did not prove the element of weight beyond a
       reasonable doubt where Vanwingeren may have improperly commingled the evidence prior
       to testing and his testimony did not indicate he tested more than one gram of substance. The
       State argues that Harden has waived this issue for review by failing to object to the evidence
       at trial. Generally, errors not objected to at trial or raised in a posttrial motion are waived on
       appeal. People v. Enoch, 122 Ill. 2d 176, 186 (1988). However, when a defendant challenges
       the sufficiency of the evidence used to convict him, his claim is not subject to waiver and
       may be raised for the first time on direct appeal. People v. Woods, 214 Ill. 2d 455, 470
       (2005). We will address the merits of Harden’s argument.
¶ 40        The sentence for possession of a controlled substance with intent to deliver depends on
       the amount of controlled substance one is found to possess. People v. Coleman, 391 Ill. App.
       3d 963, 971 (2009). Therefore, “[w]hen a defendant is charged with possession of a specific
       amount of an illegal drug with intent to deliver and there is a lesser included offense of
       possession of a smaller amount, *** the weight of the seized drug is an essential element of
       the crime and must be proved beyond a reasonable doubt.” People v. Jones, 174 Ill. 2d 427,
       428-29 (1996). Random testing of samples in order to infer “the makeup of the substance of
       the whole” is proper if the seized samples are sufficiently homogenous. Jones, 174 Ill. 2d at
       429. However, if separate bags or containers of substance are seized, a sample from each bag
       or container must be tested in order to prove that it contains an illegal drug. People v.
       Williams, 200 Ill. App. 3d 503, 515 (1990). To conclude that the remaining packages also
       contain a controlled substance amounts to improper speculation or conjecture. Jones, 174 Ill.
       2d at 430. For the same reasons, commingling the contents of the packages before testing
       also renders the test results insufficient to support the weight element beyond a reasonable
       doubt. People v. Clinton, 397 Ill. App. 3d 215, 223 (2010).
¶ 41        Harden argues that Vanwingeren’s trial testimony never explicitly indicated that he tested
       all 20 packets for a controlled substance. Harden points to the words Vanwingeren used to
       describe the weighing and testing process. Vanwingeren testified that he “performed two
       tests, confirmatory test and preliminary test.” For each test, he analyzed “a small amount of
       chunky substance” or “sample.” Harden concludes that Vanwingeren improperly performed
       only two tests total on a small sample of substance, rather than test each bag for presence of
       a controlled substance. Harden further argues that Vanwingeren erroneously commingled the
       contents of all 20 packets before testing because he stated that after testing the substance he
       “sealed it back up into some plastic bags and put it back into the original evidence bag.”
       Therefore, Harden argues, the State did not prove beyond a reasonable doubt that all 1.2
       grams of substance seized actually tested positive for cocaine. As support, Harden cites
       Jones, 174 Ill. 2d 427, and Clinton, 397 Ill. App. 3d 215.

                                                 -12-
¶ 42        Both cases, however, are distinguishable from Harden’s case. In Jones, the State
       specified that it selected two of the five packets seized for testing, and that the contents of
       the remaining three packets were not tested. Jones, 174 Ill. 2d at 428. In Clinton, the chemist
       testified that he emptied the contents of six packages onto a scale until the weight reached
       one gram, then he tested the commingled mixture for the presence of a controlled substance.
       Clinton, 397 Ill. App. 3d at 222. Vanwingeren’s testimony here provided no such explicit
       reference. Viewing his testimony in the light most favorable to the State, it supports the
       finding that Vanwingeren tested each bag individually for the presence of narcotics.
¶ 43        Prior to Vanwingeren’s testimony on testing, the prosecutor asked him whether he
       analyzed “the chunky substances” indicating more than one substance. (Emphasis added.)
       The following testimony that he performed a “preliminary test and confirmatory test” speaks
       of a testing method for each substance rather than the specific number of tests Vanwingeren
       actually conducted. Also, when he described the weighing process Vanwingeren spoke of
       removing “the chunky substance out of each package” before weighing the packaging
       material. (Emphasis added.) By stating that he removed the substance out of each package,
       Vanwingeren confirmed that he kept the contents of each package separate and did not
       commingle the contents of all the packages. We note that defense counsel did not challenge
       this evidence before trial, nor did counsel object to the evidence when Vanwingeren testified
       at trial. In fact, defense counsel had the opportunity to cross-examine Vanwingeren on his
       testimony and never raised the issue. The record may not expressly state whether
       Vanwingeren tested all 20 bags of “the chunky substance” or whether he commingled the
       contents before testing. Where the record is ambiguous, however, “we will not presume that
       an improper procedure was performed.” People v. Miller, 218 Ill. App. 3d 668, 673 (1991).
       Where the evidence presented is susceptible to conflicting inferences, “it is best left to the
       trier of fact for proper resolution.” People v. McDonald, 168 Ill. 2d 420, 447 (1995). Here,
       the jury could reasonably conclude from Vanwingeren’s testimony that he tested a sample
       of substance from each package and the combined weight of the substances, 1.2 grams, tested
       positive for cocaine.
¶ 44        Harden’s third contention is that the trial court erroneously allowed the State to impeach
       him with a prior conviction for possession with intent to deliver a controlled substance. A
       defendant who testifies may be impeached by proof of a prior conviction. People v. Tribett,
       98 Ill. App. 3d 663, 675 (1981). The trial court may allow evidence of a prior conviction for
       this purpose where: (1) the prior crime was punishable by death or imprisonment of more
       than one year, or involved dishonesty or false statement regardless of the punishment, (2) less
       than 10 years have passed since the date of conviction of the prior crime or release of the
       witness, whichever is later, and (3) the probative value of admitting the prior conviction
       outweighs the potential for unfair prejudice. People v. Montgomery, 47 Ill. 2d 510, 516
       (1971). In determining whether the probative value outweighs the prejudicial effect, the trial
       court must take into account (1) the nature of the previous crime; (2) the proximity or
       remoteness in time of the past conviction to the present time; and (3) the similarity of the
       prior crime to the one charged. Tribett, 98 Ill. App. 3d at 675. Harden filed a motion in limine
       to bar the State from introducing evidence of his past conviction for possession of a
       controlled substance. “[E]videntiary motions, such as motions in limine, are directed to the
       trial court’s discretion, and reviewing courts will not disturb a trial court’s evidentiary ruling

                                                 -13-
       absent an abuse of discretion.” People v. Harvey, 211 Ill. 2d 368, 392 (2004).
¶ 45        At the hearing on the motion, the following exchange occurred:
                     “MR. SORICH [Assistant State’s Attorney]: By way of background, Judge, he
                has a possession with intent conviction from December of 1997. He received ten
                years Illinois Department of Corrections. That was consecutive to a possession of a
                stolen motor vehicle conviction, which he was convicted on June of 1997.
                                                   ***
                     THE COURT: So all we’re dealing with is a PSMV, possession with intent. ***
                                                   ***
                     MR. SHROEDER [defense counsel]: Judge, the purpose of bringing up that
                conviction, or one of the effects of bringing up that conviction is to imply to a jury
                *** that, well, if he did it before, he did it again. And there’s no reason why, there’s
                no allegation that there’s anything to do with modus operandi or anything
                distinguishing about the prior conviction. ***
                     THE COURT: Montgomery does allow me to do a balancing act to balance the
                probative effect versus the prejudicial effect. And he [sic] certainly these–the PSMV
                and the possession of a controlled substance with intent to deliver certainly are within
                the time period of Montgomery. I will, however, not allow the PSMV. I will allow
                the possession of a controlled substance with intent to deliver.
                                                   ***
                     MR. SHROEDER: But, again, Judge that’s a prior bad act. That doesn’t fit in
                with one of the exceptions.
                     THE COURT: It has nothing to do with–it only goes–it only goes to whether or
                not he’s going to testify. They’re allowed to bring that out so the jury can judge his
                credibility.
                     MR. SHROEDER: It’s extremely prejudicial, and it’s not probative of anything.
                It’s not something about his truth and veracity.
                     THE COURT: I disagree with you.”
¶ 46        In People v. Atkinson, 186 Ill. 2d 450 (1999), the defendant argued that the trial court
       erred in allowing his prior convictions where it did not articulate the factors it considered in
       applying the Montgomery balancing test. Atkinson, 186 Ill. 2d at 462. The supreme court
       disagreed, noting that defense counsel specifically referred to the test in his argument against
       the use of the prior convictions, and the trial court referred to the Montgomery test in denying
       the defendant’s motions for a mistrial and a new trial. Atkinson, 186 Ill. 2d at 462. The court
       held that the trial court conducted a proper balancing test under Montgomery, and it “did not
       err in failing to articulate the factors [it] considered” in applying the test. Atkinson, 186 Ill.
       2d at 463. See also People v. Williams, 173 Ill. 2d 48, 83 (1996) (the supreme court found
       no error where the transcript makes clear that the trial court applied the Montgomery test
       even if it did not expressly state it was balancing the opposing interests).
¶ 47        At the hearing on Harden’s motion in limine, defense counsel was clearly referring to the
       Montgomery test when he argued that the prejudicial effect of the prior drug conviction far
       outweighed its probative value. The trial court here, as in Atkinson, specifically referred to

                                                 -14-
       Montgomery and acknowledged its requirement that the court balance the probative value
       with the prejudicial effect of the prior conviction. When defense counsel argued that the prior
       drug conviction is not probative of Harden’s capacity for “truth and veracity,” the trial court
       disagreed. Although the trial court here did not articulate how it balanced the probative value
       of the prior conviction with the prejudicial effect, “there is no reason to suppose that [it]
       disregarded the familiar, well-established Montgomery standard.” Williams, 173 Ill. 2d at 83.
       The trial court did not abuse its discretion in allowing the State to use Harden’s prior drug
       conviction to impeach his credibility.
¶ 48       Harden argues that if the trial court properly applied the balancing test in Montgomery,
       it would have admitted his prior PSMV conviction rather than the drug conviction. Harden
       argues that his prior drug conviction is more prejudicial because it is identical to the present
       charge against him. Harden also contends that the traditional rationale for admitting drug
       convictions for impeachment purposes, that they reveal a “ ‘disposition to place the
       advancement of individual self-interest ahead of principle,’ ” was “discredited” in People v.
       Williams, 161 Ill. 2d 1, 38 (1994). People v. Elliot, 274 Ill. App. 3d 901, 909 (1995). Instead,
       the trial court should have allowed the conviction for possession of a stolen motor vehicle
       as impeachment, since the nature of that offense more directly relates to one’s truthfulness.
¶ 49       The mere fact that his prior conviction is for an offense identical to one Harden was
       charged with does not preclude its use for purposes of impeachment. See Tribett, 98 Ill. App.
       3d at 676. After balancing the probative value of the prior drug conviction with its prejudicial
       effect, the trial court here concluded that the drug conviction could be used to impeach
       Harden’s credibility. Our courts have consistently held that a conviction for possession or
       delivery of a controlled substance is “the type of conviction which would be probative of
       credibility and would afford a basis for impeaching credibility.” Tribett, 98 Ill. App. 3d at
       675-76. Furthermore, the supreme court in People v. Williams, 173 Ill. 2d 48 (1996),
       disagreed with the Williams case cited by Harden to the extent it is construed as leaving
       eligible for impeachment only those prior “convictions for offenses that involve dishonesty
       or false statement.” Williams, 173 Ill. 2d at 83. The Williams court reiterated that the State
       may continue to use, for impeachment purposes, evidence of a prior crime punishable by
       death or imprisonment of more than one year. Williams, 173 Ill. 2d at 83. Therefore,
       decisions indicating that the “nature of the prior conviction must bear on the witness’s
       truthfulness before it can be considered for use as impeachment are trumped” by Williams.
       Stokes v. City of Chicago, 333 Ill. App. 3d 272, 278-79 (2002) (People v. Elliot, 274 Ill. App.
       3d 901 (1995), cited by Harden, is one such case “trumped” by Williams).
¶ 50       Both parties agree that Harden is entitled to two additional days of presentence credit.
       The mittimus will be amended to reflect the correct amount of credit.
¶ 51       For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 52       Affirmed; mittimus corrected.




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