                       Illinois Official Reports

                               Appellate Court



                  People v. Pittman, 2014 IL App (1st) 123499



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           CHARLES PITTMAN, Defendant-Appellant.



District & No.    First District, Third Division
                  Docket No. 1-12-3499




Filed             December 23, 2014



Decision Under    Appeal from the Circuit Court of Cook County, No. 12-CR-4873; the
Review            Hon. Thaddeus L. Wilson, Judge, presiding.




Judgment          Affirmed; fines and fees order corrected.



Counsel on        Michael J. Pelletier and Heidi Linn Lambros, both of State Appellate
Appeal            Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Anthony O’Brien and
                  Iris G. Ferosie, Assistant State’s Attorneys, of counsel), for the
                  People.
     Panel                     JUSTICE HYMAN delivered the judgment of the court, with opinion.
                               Justices Lavin and Mason concurred in the judgment and opinion.



                                                OPINION

¶1         Following a bench trial, defendant Charles Pittman was convicted of two counts of
       possession of a controlled substance with intent to deliver and sentenced to two concurrent
       terms of 11 years in prison. On appeal, Pittman contends that (i) the State failed to prove his
       intent to deliver beyond a reasonable doubt, (ii) his sentence is excessive, and (iii) his two
       convictions violate the one-act, one-crime principles set forth in People v. King, 66 Ill. 2d 551,
       566 (1977). Pittman also contends that his fines, fees, and costs order should be corrected.
¶2         We find that the State sufficiently proved Pittman’s intent to deliver through evidence of
       the quantity of the drug recovered, its packaging, and officers’ description of an attempted
       drug transaction. We also find Pittman’s sentence appropriate as it fell within the statutory
       range and the record shows the trial court considered all mitigating and aggravating factors.
       We conclude that Pittman’s two convictions for possession of a controlled substance with
       intent to deliver do not violate King because his actual possession of the first set of drugs and
       his constructive possession of the second set constitute two separate acts. We affirm and
       correct the fines and fees order.

¶3                                            BACKGROUND
¶4          The charges against Pittman arose from an encounter between Pittman and three Chicago
       police officers near a vacant building and lot on February 15, 2012. During a brief chase,
       officers observed Pittman throw packets holding 1.8 grams of heroin into a nearby garbage
       can. Following Pittman’s arrest he led the officers to a hidden container in a neighboring lot
       containing an additional 3.1 grams of heroin.
¶5          At trial, Officer Robert Vahl testified that while on patrol with Chicago police officers
       Barsch and Kakos, in the 5600 block of South Marshfield Avenue, Chicago, around 1 p.m. on
       February 15, 2012, Vahl saw three or four middle-aged men standing in a line in front of 5618
       South Marshfield. Based on his 13 years of experience, he believed a narcotics transaction was
       in the offing. Pittman approached the men from a neighboring vacant lot. Once Pittman met the
       group, one of the individuals handed Pittman cash. After receiving the money, Pittman looked
       down the street toward the police officers and fled through the vacant lot. Vahl chased Pittman
       with Officer Kakos following directly behind. On reaching the alley behind the lot, Pittman
       threw a plastic bag containing small, blue items into an open garbage can. Vahl caught Pittman
       and secured him five feet from the can.
¶6          Following the chase, Vahl returned to the garbage can and found eight small, blue-tinted
       Ziploc bags containing what he believed to be heroin. The eight packets were taped together in
       a line 8 to 10 inches long. Vahl testified that the packaging and amount were consistent with an
       active participation in the sale of narcotics. He also testified that heroin buyers usually possess
       one to two bags of heroin.
¶7          After advising Pittman of his Miranda rights, Vahl asked if any more narcotics were in the
       area. Pittman offered to direct the officers to more narcotics in exchange for his release.

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       Pittman directed the officers to a boat in the adjacent vacant lot. After placing Pittman in the
       police car, Vahl and Kakos searched the boat. Finding nothing, the officers returned to
       Pittman, who then directed them to the boat’s wheel well. Kakos found a Tic Tac container
       taped to a magnet hidden in the boat’s wheel well. Inside the container were 13 blue bags
       identical to the 8 bags recovered from the garbage can. Vahl did not find any money on Pittman
       or in the area and did not see Pittman throw or drop any currency.
¶8         The State then called Officer Kakos, who testified consistently with Officer Vahl.
¶9         The parties stipulated that the first 8 bags contained 1.8 grams of heroin and the 13 bags
       from the Tic Tac container contained 3.1 grams of heroin. After the State rested, the trial court
       denied Pittman’s motion for a directed finding. Pittman presented no witnesses and did not
       testify.
¶ 10       The trial court found Pittman guilty of both counts of possession of a controlled substance
       with the intent to deliver. At Pittman’s sentencing hearing, the State observed that Pittman had
       10 prior convictions and thus was subject to a Class X sentence. Pittman in mitigation argued
       that he had a 20-year history of drug abuse, that he used 10 bags of heroin and cocaine a day,
       and that the crimes committed were not egregious. Pittman spoke on his own behalf, stating he
       was an addict and was “sick and tired.” The trial court sentenced Pittman to two concurrent
       terms of 11 years’ imprisonment and fines, fees and costs totaling $2,950. Pittman filed a
       motion to reconsider the sentence, which the trial court denied.

¶ 11                                            ANALYSIS
¶ 12                          Sufficiency of the Evidence of Intent to Deliver
¶ 13       Pittman first contends that the State failed to prove beyond a reasonable doubt that Pittman
       possessed a controlled substance with intent to deliver. Particularly, Pittman asks that his
       convictions be reduced to simple possession because there was insufficient evidence of intent
       to deliver.
¶ 14       Due process requires the State to prove each element of a conviction beyond a reasonable
       doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004) (citing In re Winship, 397 U.S. 358,
       364 (1970)). When reviewing the sufficiency of evidence, a reviewing court must decide
       “whether, 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.”
       (Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319 (1979); Cunningham, 212 Ill.
       2d at 278.
¶ 15       In Illinois, possession of a controlled substance with intent to deliver requires the State to
       prove: (1) defendant had knowledge of the presence of a controlled substance; (2) the
       substance was in defendant’s immediate possession or control; and (3) defendant intended to
       deliver narcotics. 720 ILCS 570/401 (West 2010); People v. Robinson, 167 Ill. 2d 397, 407
       (1995). The first two elements are not disputed in this appeal.
¶ 16       Given the rarity of direct evidence of intent, it must typically be proven through
       circumstantial evidence. Robinson, 167 Ill. 2d at 408. The Illinois Supreme Court has set forth
       seven factors probative of intent to deliver: (1) possession of a quantity too large to be for
       personal consumption; (2) purity of the drug; (3) possession of weapons; (4) possession of
       large amounts of cash; (5) possession of police scanners, beepers, or cellular phones; (6)



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       possession of drug paraphernalia; and (7) packaging. Id. Which factors will be considered
       depends on the facts of the case. See id.; People v. Bush, 214 Ill. 2d 318, 327 (2005).
¶ 17       The State presented sufficient evidence for a rational fact finder to conclude beyond a
       reasonable doubt that Pittman intended to deliver a controlled substance. Pittman was in actual
       or constructive possession of a total of 4.9 grams of heroin. The heroin was in 21 separate
       packages, with 8 of those packages taped together in a line. Officer Vahl testified that the
       amount and the packaging were associated with the sale of narcotics, that purchasers usually
       possessed only one or two bags of narcotics, and that the men standing together on the
       sidewalk appeared, given his experience, to be about to engage in a drug transaction due to the
       way they lined up and their proximity to both a vacant building and a vacant lot. Pittman left
       the vacant lot where the second set of drugs was found to approach the individuals. Finally,
       both officers testified that they witnessed one of the individuals give money to Pittman on his
       arrival. Taking the evidence together, one could infer that the officers witnessed the initiation
       of an attempted drug sale. Thus a rational fact finder could find beyond a reasonable doubt that
       Pittman intended the controlled substance for delivery.
¶ 18       Pittman cites numerous cases where other defendants convicted of possession with intent
       to deliver had their convictions reversed due to insufficient evidence of intent. The amounts of
       controlled substances vary in these cases from much less than the quantity in Pittman’s case to
       much more. Most of these cases, however, are distinguishable because they lacked testimony
       or other evidence that the amount of the substance was inconsistent with personal use. See
       People v. Ellison, 2013 IL App (1st) 101261, ¶ 15 (“[T]here was no testimony that the amount
       of drugs recovered–3.112 grams of cocaine and approximately 0.4 grams of heroin–was
       inconsistent with personal use ***.”); People v. Sherrod, 394 Ill. App. 3d 863, 866 (2009)
       (combined weight of three packets, 0.6 gram, could reasonably be viewed as acquired for
       personal use only); People v. Thomas, 261 Ill. App. 3d 366, 371 (1994) (small amount of
       narcotics, standing alone, does not give rise to inference of intent to deliver); People v.
       McLemore, 203 Ill. App. 3d 1052, 1056 (1990) (same). The only evidence as to whether the
       amount of heroin in Pittman’s possession was or was not consistent with personal use came
       from Officer Vahl, who testified the amount was consistent with the sale and not personal use
       of heroin.
¶ 19       Pittman now argues that he has been an addict for 20 years and consumed five bags of
       heroin a day. He presents health statistics and anecdotal references to prove that the 4.9 grams
       of heroin recovered were consistent with personal use. But, none of this information was
       presented to the fact finder at trial and therefore cannot be considered for the first time on
       review. People v. Cunningham, 212 Ill. 2d 274, 279 (2004) (“[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. In conducting this inquiry, the reviewing court must not retry the
       defendant.”).
¶ 20       Pittman also argues that the prosecution failed to address factors listed by the Robinson
       court, including the absence of evidence as to the purity of the drugs recovered, that no money
       was found, and that there was no evidence of a weapon, a police scanner or other
       paraphernalia. Yet the Robinson factors do not constitute a “hard and fast rule to be applied in
       every case.” (Internal quotation marks omitted.) People v. Bush, 214 Ill. 2d 318, 325 (2005).
       The other circumstantial evidence presented to the trial court presents ample evidence of
       defendant’s intent. Taking the evidence as a whole, in the light most favorable to the State, we

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       do not find the evidence “so improbable, unsatisfactory, or inconclusive that it creates a
       reasonable doubt of defendant’s guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005).

¶ 21                                              Sentence
¶ 22        Pittman next contends that he received an excessive sentence given the mitigating factors
       presented at the sentencing hearing. Pittman was 53 at the time of his conviction and suffered
       from a 20-year addiction to heroin and cocaine. At his sentencing, Pittman expressed remorse,
       stating “I’m sick and I’m tired.” Pittman further argues that his crime resulted in no harmful
       consequences.
¶ 23        The State first argues that Pittman forfeited this issue by failing to object during the
       sentencing hearing and by failing to include the issue in a motion for a new sentence. As we
       find that the trial court did not err, we need not discuss whether the issue was properly
       preserved. See People v. Piatkowski, 225 Ill. 2d 551, 565 (2007) (first step in plain error
       analysis involves determining occurrence of error). Alternatively, the State argues that the
       record indicates that the trial court considered all proper aggravating and mitigating factors
       before imposing a sentence and that, given Pittman’s criminal background, he received a
       proper sentence.
¶ 24        All sentences must reflect the seriousness of the offense committed and the objective of
       rehabilitating offenders to useful citizenship. People v. Cooper, 283 Ill. App. 3d 86, 95 (1996).
       The trial court must consider all factors in mitigation and aggravation. People v. Quintana, 332
       Ill. App. 3d 96, 109 (2002). The sentencing court need not record or articulate its exact
       weighing and balancing of those factors. Id.
¶ 25        A reviewing court may only reduce a sentence when the record shows that the trial court
       abused its discretion. People v. Streit, 142 Ill. 2d 13, 19 (1991). When examining sentences
       imposed by lower courts, reviewing courts “should proceed with great caution and care.” Id.
       The reviewing court may not reverse the sentencing court just because it could have weighed
       the factors differently. Id.
¶ 26        Pittman, based on his criminal history, faced a minimum sentence of 6 years and a
       maximum sentence of 30 years. 730 ILCS 5/5-4.5-95(b) (West 2010). A sentencing decision
       within the statutory range receives great deference. People v. Hill, 408 Ill. App. 3d 23, 29
       (2011).
¶ 27        While Pittman notes that his 11-year sentence is almost double the minimum sentence, it is
       also less than half of the maximum sentence. In sentencing Pittman, the trial court explicitly
       stated that it considered the gravity of the offense, the presentence investigation report, the
       substance abuse issues of Pittman, and Pittman’s statement. Thus the trial court did not refuse
       or fail to consider the mitigating factors, but simply weighed them differently than Pittman.
       We find that the trial court did not abuse its discretion in sentencing Pittman to 11 years.

¶ 28                                        One Act, One Crime
¶ 29       Pittman also argues that his convictions for two counts of possession of a controlled
       substance with intent to deliver violate one-act, one-crime principles because both counts are
       based on the same act of possession. Pittman notes that before being arrested, he ran through
       the vacant lot and tossed the first set of baggies into a garbage can. Immediately after that, he
       directed the officers to the second quantity of heroin located in the wheel well of the boat in the


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       vacant lot. The drugs were packaged identically and the entire encounter took mere minutes.
       Pittman also notes that the indictments for each count were identical.
¶ 30        The State argues that Pittman’s convictions stem from two distinctive acts: Pittman (1)
       threw the first set of packets into a garbage can behind 5618 South Marshfield and (2)
       informed the police of the second set of packets in the boat at 5616 South Marshfield. Police
       recovered drugs from two different locations at two different times.
¶ 31        Pittman acknowledges that the issue was not raised at the trial court level, so plain error
       analysis applies. A reviewing court may consider an error, despite forfeiture, when a clear and
       obvious error occurred and either (1) the evidence is so closely balanced that the error alone
       threatened to tip the scales of justice against defendant or (2) the error is so serious as to
       challenge the integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565. The Illinois
       Supreme Court has ruled that a violation of one-act, one-crime principles challenges the
       integrity of the judicial process and therefore passes the second prong of plain error analysis. In
       re Samantha V., 234 Ill. 2d 359, 378 (2009). The question then is whether error exists.
¶ 32        Under one-act, one-crime principles, a defendant cannot be convicted of multiple offenses
       “carved from the same physical act.” People v. King, 66 Ill. 2d 551, 566 (1977). When offenses
       stem from multiple related acts, multiple convictions with concurrent sentences are permitted
       so long as the offenses are not lesser included offenses. Id. An act is “any overt or outward
       manifestation which will support a different offense.” Id. One-act, one-crime challenges are
       subject to de novo review. People v. Artis, 232 Ill. 2d 156, 161 (2009).
¶ 33        In People v. Manning, the Illinois Supreme Court held that the simultaneous possession of
       different types of controlled substances would not support multiple convictions and sentences
       without an express statutory provision. People v. Manning, 71 Ill. 2d 132, 137 (1978). While
       Manning was overruled by legislative amendment, the Illinois Supreme Court has held that its
       reasoning remains valid. See People v. Carter, 213 Ill. 2d 295, 303 (2004) (“The amendment,
       however, does not change the underlying holding of Manning.”). The legislative amendments
       to the Illinois Controlled Substances Act provide the express statutory provision required by
       Manning as to separate controlled substances, yet there is no such provision for simultaneous
       possession of the same substance. See 720 ILCS 570/401 (West 2010); see also 720 ILCS
       570/100 (West 2010). Accordingly, we must determine whether the possession of the 8 packets
       of heroin on Pittman’s person and the possession of the 13 packets recovered from the boat
       were simultaneous within the meaning of Manning so as to constitute one act under King.
¶ 34        Both Pittman and the State focus on the location and timing of the two quantities of drugs
       in their arguments. Pittman cites the proximity in time and location between the two sets. The
       State distinguishes between when Pittman threw the first set of packets and when he directed
       the police to the second set of packets. We believe the proper analysis is not about the method
       of recovery, but rather the act of possession itself. Pittman was not charged with throwing a
       controlled substance or directing officers to a controlled substance; he was charged with two
       counts of possession. Therefore we must focus our analysis on whether the acts of possession
       constitute distinct acts under King.
¶ 35        The analysis under King cannot be simplified down to a question of location or time. The
       Illinois Supreme Court has repeatedly declined to adopt appellate court developed tests based
       on factors including location and time. See People v. Crespo, 203 Ill. 2d 335, 342 (2001); see
       also People v. Rodriguez, 169 Ill. 2d 183, 188 (1996). In Crespo, the defendant stabbed his
       step-daughter three times “in rapid succession.” Crespo, 203 Ill. 2d at 338. Despite the

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       closeness in time of each act, the Crespo court held that the three separate stabs were each
       separate acts under King; however, they could only support separate convictions where the
       State had apportioned each stab to separate charges in the indictment or its argument to the
       jury. Id. at 342. The Illinois Supreme Court has stressed that King’s definition of act remains
       the focus of any one-act, one-crime inquiry. Rodriguez, 169 Ill. 2d at 188. A single act is “any
       overt or outward manifestation which will support a different offense.” People v. King, 66 Ill.
       2d 551, 566 (1977); see also Crespo, 203 Ill. 2d at 342. So we must look to the overt acts
       underlying Pittman’s convictions. We believe that in possession cases the essential question is
       whether distinctive evidence is used to prove each possession and the State has apportioned the
       offenses charged among each possession.
¶ 36       Possession of a controlled substance can be proven in two distinct ways. See People v.
       Frieberg, 147 Ill. 2d 326, 361 (1992); People v. Eghan, 344 Ill. App. 3d 301, 306 (2003).
       Actual possession is accomplished through “the exercise by the defendant of present personal
       dominion over the illicit material.” Eghan, 344 Ill. App. 3d at 306. The act of actual possession
       requires the exercise of “immediate and exclusive *** control” over the controlled substance.
       People v. Schmalz, 194 Ill. 2d 75, 82 (2000). Conversely, constructive possession requires “the
       intent and capability to maintain control and dominion over the controlled substance” without
       immediate, actual control. Eghan, 344 Ill. App. 3d at 307. Therefore, one cannot both actually
       and constructively possess an item at the same instant, as constructive possession is defined by
       “a lack of actual present personal dominion.” Id. In King, the Illinois Supreme Court
       distinguished the defendant’s rape and burglary convictions by noting that each act required
       proof of a separate element as to the act required. King, 66 Ill. 2d at 566. Similarly, the acts of
       actual possession and constructive possession are proven with different evidentiary support.
       Where actual possession requires proof of control, constructive possession requires proof of
       intent and capability to control.
¶ 37       We find that the State proved each count through distinct evidence. Pittman actually
       possessed the first set of packets. The drugs were on his person and fully within his control,
       evidenced by the fact that he was able to throw the packets. He constructively possessed the
       second set of packets. They were not in his immediate, personal control. Instead, Pittman’s
       careful hiding of the drugs circumstantially evidenced his intent and capability to return later
       and only then exercise actual control. Therefore, Pittman committed two separate acts of
       possession: (1) the exercise of present, personal control over the first set of drugs and (2) the
       exercise of constructive control through the intent and capability to return to the second set of
       drugs. Furthermore, Pittman’s indictment charged two separate counts of possession of a
       controlled substance with intent to deliver and, therefore, indicated “that the State intended to
       treat the conduct of defendant as multiple acts.” Crespo, 203 Ill. 2d at 345.
¶ 38       It his reply brief, Pittman raises a new argument–if we agree that Pittman’s drug possession
       constitutes distinct and separate acts, then the State should have had to prove intent to
       distribute as to each independently, and the State only proved intent to distribute the bags of
       heroin in Pittman’s actual possession. Arguments raised for the first time in a reply brief need
       not be addressed by this court. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (“Points not argued [in
       the opening brief] are waived and shall not be raised in the reply brief ***.”). Besides
       maintaining consistency and uniformity, avoiding confusion, and preventing gamesmanship,
       Rule 341(h)(7) prevents unfairness to an adverse party who would have no notice of the issue



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       or an opportunity to provide a response. Because this issue could have been raised in the
       principle brief but was not, we decline to entertain it.
¶ 39       We find the actual possession and the constructive possession to be two separate acts and
       Pittman has failed to show that any error exists.

¶ 40                                Presentence Incarceration Credit
¶ 41       Finally, Pittman argues, and the State concedes, that he is entitled to a presentence
       incarceration credit of $1,305 toward his fines of $2,080. Pittman also has costs and fees
       totaling $515, for a total amount owed of $2,595. Defendants assessed a fine earn a $5 credit
       for each day spent in custody on a bailable offense. 725 ILCS 5/110-14 (West 2010). The
       credit applies only to “fines” imposed for a conviction, not to other fees or costs. People v.
       White, 333 Ill. App. 3d 777, 781 (2002). We accept the State’s concession and order the clerk
       of the circuit court correct defendant’s fines, fees, and costs order to reflect a total due of
       $1,290.

¶ 42                                         CONCLUSION
¶ 43       We conclude that the State presented sufficient evidence to prove Pittman guilty beyond a
       reasonable doubt of possession of a controlled substance with the intent to deliver. The
       sentencing court did not abuse its discretion in sentencing Pittman to 11 years’ imprisonment.
       We also conclude that Pittman’s actual possession of 8 packets of heroin thrown from his
       person and his constructive possession of 13 packets recovered from a vacant lot constitute
       separate acts and his two convictions do not violate one-act, one-crime principles. Therefore,
       the judgment of the circuit court of Cook County is affirmed, and we order the clerk of the
       circuit court to correct Pittman’s order of fines, fees, and costs to reflect a total due of $1,290.

¶ 44      Affirmed; fines and fees order corrected.




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