                                  Illinois Official Reports

                                          Appellate Court



                             People v. Branch, 2014 IL App (1st) 120932




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



District & No.               First District, Third Division
                             Docket No. 1-12-0932


Filed                        January 15, 2014
Rehearing denied             January 27, 2014

Held                         The eyewitness testimony of police officers that defendant made eight
(Note: This syllabus         transactions that involved going to a vacant lot to retrieve an item and
constitutes no part of the   then returning to a street to deliver the item to an individual in
opinion of the court but     exchange for cash and then, after delivering the cash to another man
has been prepared by the     following the transactions, defendant was arrested and found to be in
Reporter of Decisions        possession of several capsules of heroin, was sufficient to sustain his
for the convenience of       conviction for the unlawful possession of a controlled substance with
the reader.)                 intent to deliver, notwithstanding his contention that the State failed to
                             prove he intended to deliver heroin, especially when he did not
                             possess a large amount of drugs or cash or any weapons or
                             distribution-related equipment, since a trier of fact reasonably could
                             infer that defendant was engaging in heroin sales and that he intended
                             to deliver the drugs in his possession.



Decision Under               Appeal from the Circuit Court of Cook County, No. 10-CR-15831; the
Review                       Hon. William Hooks, Judge, presiding.



Judgment                     Affirmed.
     Counsel on              Michael J. Pelletier and Christofer R. Bendik, both of State Appellate
     Appeal                  Defender’s Office, of Chicago, for appellant.

                             Anita M. Alvarez, State’s Attorney, of Chicago (Noah Montague,
                             Assistant State’s Attorney, of counsel), for the People.


     Panel                   PRESIDING JUSTICE HYMAN delivered the judgment of the court,
                             with opinion.
                             Justices Neville and Mason concurred in the judgment and opinion.




                                            OPINION

¶1         A jury convicted defendant Earnest Branch of possession of a controlled substance with
       intent to deliver under section 401(c)(1) of the Illinois Controlled Substances Act (720 ILCS
       570/401(c)(1) (West 2010)). He was sentenced to six years in prison. On appeal, Branch
       contends that the State failed to prove that he intended to deliver the narcotics found in his
       possession. We affirm. The evidence sufficiently supports Branch’s conviction for possession
       of a controlled substance with intent to deliver.

¶2                                           Background
¶3         Branch was charged by information with possession of a controlled substance with intent
       to deliver in that he “unlawfully and knowingly possessed with intent to deliver *** 1 gram or
       more but less than 15 grams of a substance containing a certain controlled substance, to wit:
       heroin.”
¶4         At trial, Chicago police officer Kathleen McCann testified that at about 12:30 p.m. on
       August 11, 2010, she and five other officers were working undercover surveillance near the
       intersection of Augusta Boulevard and Long Avenue. As she was stopped in traffic heading
       westbound, she saw Branch walking eastbound on the south side of the street. McCann
       observed Branch cut into the backyard of a vacant residence, reach down and remove an item
       and then walk back toward the corner of Augusta and Long Avenue. She pulled her car over
       and observed Branch make a suspected hand-to-hand narcotics transaction with an
       unidentified individual, exchanging the item for an unknown amount of money. She observed
       Branch engage in “at least eight” transactions. McCann then radioed Officer Myron
       Kuykendall and Officer Reginald Dukes, who were working as enforcement officers.
¶5         Officer Edward Daniels, who was also working as a surveillance officer, testified that he
       was parked 10 to 15 feet from Branch when he observed Branch engage in 8 suspected
       narcotics transactions over a period of 45 minutes. He was not able to see the amount of money
       that was being exchanged during each transaction or the item that was being tendered. Branch
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       began walking southbound after the transactions, and Daniels, through his rear-view mirror,
       saw Branch give an unknown amount of cash to a man on a bicycle before going westbound
       down an alley.
¶6         Officer Kuykendall testified that he and Officer Dukes received radio communication
       regarding Branch’s suspected narcotics transactions and drove westbound into the alley
       between Augusta Boulevard and Iowa Street. Kuykendall exited the car and told Branch and
       the man on the bicycle to stop. Branch looked in Kuykendall’s direction and dropped an object
       from his hand. Kuykendall recovered the item and arrested him. The man on the bicycle fled
       and was never captured. Kuykendall recovered a clear plastic bag containing 11 capsules of
       suspected heroin and $18 in cash.
¶7         Forensic chemist Elaine Harris tested 7 of the 11 capsules, and they weighed 1.1 grams and
       tested positive for heroin. She estimated all 11 capsules weighed 1.7 grams.
           On appeal, Branch contends that the State failed to prove the element of intent to deliver
       beyond a reasonable doubt.

¶8                                             Analysis
¶9         When a defendant challenges the sufficiency of the evidence to sustain his or her
       conviction, the relevant question on review is whether, after considering the evidence in the
       light most favorable to the State, any rational trier of fact could have found the essential
       elements of the crime proven beyond a reasonable doubt. People v. Beauchamp, 241 Ill. 2d 1, 8
       (2011). The trier of fact determines the credibility of witnesses, the weight to be given to their
       testimony, and the reasonable inferences to be drawn from the evidence. People v. Howery,
       178 Ill. 2d 1, 38 (1997). A conviction only will be overturned where the evidence is so
       improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant’s
       guilt. Beauchamp, 241 Ill. 2d at 8.
¶ 10       To prove defendant guilty of the offense of possession of a controlled substance with intent
       to deliver, the State must prove the defendant (1) had knowledge of the presence of the
       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); 720 ILCS 570/402(c) (West 2010).
       The trier of fact may rely on reasonable inferences to determine knowledge and possession.
       People v. Smith, 191 Ill. 2d 408, 413 (2000). The element of “intent to deliver” is usually
       proved by circumstantial evidence because knowledge and possession of drugs are rarely
       subject to direct proof. People v. Cruz, 129 Ill. App. 3d 278, 286 (1984) (Possession “is an
       inherently surreptitious affair, and common sense must illuminate the dark.”). Several factors
       have been considered by Illinois courts as probative of intent, including the manner in which
       the drugs are packaged; the possession of weapons; and the possession of large amounts of
       cash. Robinson, 167 Ill. 2d at 408.
¶ 11       Here, the evidence was sufficient to establish that Branch intended to deliver the heroin
       that police found in his possession. The State presented eyewitness testimony from Officer
       McCann that Branch went to a vacant lot and secured an item from the back of a house and
       delivered the item in exchange for cash. Officer Daniels could not identify the items that were

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       tendered or the amount of cash Branch received; however, he witnessed Branch give a man
       cash after the transactions and Officer Kuykendall subsequently found Branch in possession of
       11 individually packaged capsules of heroin. A trier of fact could reasonably infer that the
       eight transactions that officers saw Branch engage in were heroin sales.
¶ 12       Branch contends that the absence of factors probative of intent to deliver articulated in
       Robinson, 167 Ill. 2d at 408 (i.e., possession of amounts of narcotics inconsistent with personal
       use, evidence as to the drug purity, weapons, large amounts of cash, distribution-related
       equipment) indicates that Branch did not intend to deliver the heroin found in his possession.
       We disagree.
¶ 13       In Robinson, the police arrested the defendant based on suspected drug activity in a house
       and the State presented no eyewitness testimony that the defendant had been observed
       engaging in alleged drug transactions. Robinson, 167 Ill. 2d at 405-07. Accordingly, the
       Robinson court examined other circumstantial factors indicating intent to deliver. Unlike in
       Robinson, the State presented eyewitness testimony from Officers McCann and Daniels that
       over a period of 45 minutes, 8 times, Branch was approached by individuals with whom he had
       a short conversation, before engaging in a transactions with cash. Branch multiple times went
       to get something from close to the ground on the side of a nearby vacant house and then
       returned to the corner. The officers saw him engage in eight suspected heroin transactions and
       hand over the proceeds of the transactions to a man on a bicycle before being found in
       possession of heroin. Given these circumstances, the absence of Robinson factors is not
       dispositive. See, e.g., People v. Bush, 214 Ill. 2d 318, 327 (2005) (evidence sufficient where
       defendant accepted money from two individuals and handed them unknown items in
       exchange); People v. Bell, 343 Ill. App. 3d 110, 121 (2003) (evidence sufficient where
       defendant accepted money from several individuals and handed them small items). A
       reasonable trier of fact could have found the element of intent to deliver based on the State’s
       evidence.
¶ 14       Alternatively, Branch argues that the drugs found in his possession on arrest were separate
       from the drugs that he was selling and were intended for personal use. He attempts to
       distinguish Bush by reasoning that the defendant in that case was found to have intent to
       deliver because she “resumed her post behind the fence at the conclusion of both transactions.”
       See Bush, 214 Ill. 2d at 328-39. Conversely, Branch argues he had handed his proceeds to the
       man on the bicycle and was done for the day. We reject this argument. The jury could have
       reasonably found that the drugs Branch possessed on arrest were not a separate supply and that
       he intended to deliver the remaining capsules of heroin. Viewing all the evidence in the light
       most favorable to the State, as we must, coupled with the reasonable inferences drawn from the
       evidence, we cannot say that no rational trier of fact could have found that Branch intended to
       deliver the drugs in his possession.
¶ 15       For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 16      Affirmed.


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