                                                                                     THIRD DIVISION
                                                                                     August 30, 2006




No. 1-04-3295


THE PEOPLE OF THE STATE OF ILLINOIS,                               )        Appeal from
                                                                   )        the Circuit Court
                Plaintiff-Appellee,                                )        of Cook County.
                                                                   )
        v.                                                         )        No. 04 CR 529
                                                                   )
DAVID SCOTT,                                                       )        Honorable
                                                                   )        Rickey Jones,
                Defendant-Appellant.                               )        Judge Presiding.

        JUSTICE THEIS delivered the opinion of the court:

        Following a bench trial, defendant, David Scott, was convicted of possession of a controlled

substance (720 ILCS 570/402(a)(2)(A) (West 2002)) and sentenced to five years=

imprisonment. On appeal, defendant contends that: (1) the State failed to prove his guilt beyond a

reasonable doubt because there was no evidence that he actively or constructively possessed the cocaine

discovered by police in a mailbox; (2) the extraction and storage of his DNA profile violates his fourth

amendment rights; (3) the statute mandating the $5 spinal cord fee is an unconstitutional violation of his due

process rights; (4) he is entitled to a $5-per-day credit against his $1,000 controlled substance

assessment; and (5) the $20 fee for the victims fund was assessed erroneously. For the following

reasons, we affirm defendant=s conviction as modified and remand for resentencing.

BACKGROUND

        The following evidence was adduced at defendant=s trial. Chicago police officer Edwin Utreras

testified that at approximately 10 p.m. on November 12, 2003, he and his partner began narcotics
1-04-3295

surveillance of 3653 South Federal Street from their unmarked vehicle located in an adjacent parking

lot. Utreras was stationed approximately 150 feet away from a large group of mailboxes located in

between the buildings of 3653 and 3651 South Federal. Utreras observed defendant and

codefendant Angela Watson standing near the mailboxes. Moments later, Watson opened a mailbox with

a key, retrieved a golf-ball-sized bag of cocaine, and handed the bag to defendant. Defendant and Watson

then walked over to the 3653 South Federal building and entered the lobby area.

        Approximately 10 to 15 minutes later, Utreras observed defendant and Watson exit the lobby

area and return to the same mailbox, where Watson again opened the mailbox door with a key, retrieved a

golf-ball-sized bag of cocaine, and handed the bag to defendant. On cross-examination, Utreras

acknowledged that after each time defendant and Watson went to the mailbox to retrieve the cocaine,

Watson remained in possession of the key. Defendant and Watson then reentered the building lobby and

remained there for between 10 and 15 minutes. While defendant and Watson were still in the building,

Officer Utreras left his surveillance position and began to approach the mailboxes. Defendant and Watson

returned to the mailboxes as Utreras approached. Defendant saw Utreras walking toward him, then handed

Watson a golf- ball-sized bag of cocaine and walked away. Watson again opened the mailbox with a key,

placed the bag in the mailbox, and walked away from the area, leaving the key inserted in the mailbox.

Defendant and Watson were subsequently detained by enforcement officers working in concert with

Utreras. Utreras opened mailbox No. 306 and recovered two plastic bags containing cocaine. The

parties stipulated that a baseball-sized bag (the larger bag) contained 36.2 grams of cocaine and the golf-

ball-sized bag (the smaller bag) contained 10.3 grams of cocaine.

        Defendant presented two witnesses at trial to testify on his behalf. Marquetta Fitts, defendant=s

friend, testified that she was at the Watsons= apartment with defendant and Watson on the night of the

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1-04-3295

incident. According to Fitts, all three left the apartment to go to the store. They were stopped by the

police in the building lobby and held for two hours. Watson=s mother, Lilly Watson, testified that she lived

with Watson in apartment No. 306 at 3653 South Federal. She also testified that defendant

was Watson=s boyfriend and was currently staying in their apartment. Defendant and Watson also had

three children together. Watson=s mother stated that mailbox No. 306 belonged to their unit.

According to her, the police searched the residence that night. Officer Chris Savikes testified in rebuttal

that he never saw any police officers go into apartment No. 306 and that defendant and Watson were

transported to the police station about 10 or 15 minutes after they were arrested.

        The trial court found Officer Utreras credible and Fitts and Watson=s mother incredible. The

court found defendant guilty of possession of a controlled substance weighing more than 15 grams but less

than 100 grams and subsequently sentenced him to five years= imprisonment.

ANALYSIS

        On appeal, defendant contends that the State failed to prove beyond a reasonable doubt that he

possessed more than 15 grams of cocaine because it never established that he actually or constructively

possessed the larger bag found in the mailbox. Specifically, defendant argues that he neither lived in the

Watsons= apartment nor possessed a key to the mailbox. Therefore, defendant maintains he could only have

been found guilty of possessing the 10.3 grams of cocaine and asks this court to vacate his conviction and

remand his case for resentencing on the lesser amount of cocaine.

        When considering a challenge to a criminal conviction based upon the sufficiency of the evidence, the

appellate court will not retry the defendant. People v. Smith, 185 Ill. 2d 532, 541, 708

N.E.2d 365, 369 (1999). Rather, in such cases the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found

                                                      -3-
1-04-3295

the essential elements of the crime beyond a reasonable doubt. Smith, 185 Ill. 2d at 541, 708

N.E.2d at 369. Thus, it is the court's duty to carefully examine the evidence while giving due

consideration to the fact that the trier of fact saw and heard the witnesses. Smith, 185 Ill. 2d at 541,

708 N.E.2d at 369. If, however, after such consideration the court is of the opinion that the

evidence is insufficient to establish the defendant's guilt beyond a reasonable doubt, it must reverse the

conviction. Smith, 185 Ill. 2d at 541, 708 N.E.2d at 369.

        To support a finding of possession of a controlled substance, the State must prove beyond a

reasonable doubt that the defendant had knowledge of the presence of the narcotics and that the narcotics

were in his immediate and exclusive control. People v. Smith, 288 Ill. App. 3d 820, 823,

681 N.E.2d 80, 82 (1997). Possession of drugs may be constructive. Constructive

possession exists without actual personal present dominion over a controlled substance, but there must be an

intent and capability to maintain control and dominion. People v. Frieberg, 147 Ill. 2d 326, 361,

589 N.E.2d 508, 524 (1992). The mere presence in the vicinity of a controlled substance

cannot establish constructive possession. People v. Adams, 242 Ill. App. 3d 830, 833, 610

N.E.2d 763, 765 (1993).

        In the present case, the State failed to establish that defendant had the capability to maintain control

and dominion over the larger bag of cocaine found in the mailbox. The evidence at trial revealed that defendant

never possessed or had access to the key needed to open the mailbox where the larger bag of cocaine was

later found. Each time defendant and Watson approached the mailbox, Watson opened the mailbox with the

key and Watson retained possession of the key. Without the key, the mailbox containing the larger bag of

cocaine was not accessible to defendant. Defendant could not control that which he could not access. As

such, the State failed to prove that defendant had the requisite capacity to maintain dominion and control over

                                                      -4-
1-04-3295

the larger bag of cocaine.

        We acknowledge the State=s argument that habitation in the premises where narcotics are

discovered raises the inference that defendant had control over them. People v. Cunningham, 309 Ill.

App. 3d 824, 828, 723 N.E.2d 778, 782 (1999). Proof of residency in the form

of rent receipts, utility bills and clothing in closets is relevant to show defendant lived on the premises where

narcotics are found and, therefore, controlled them for purposes of establishing constructive possession of

narcotics. Cunningham, 309 Ill. App. 3d at 828, 723 N.E.2d at 782.

        Here, there was no such relevant evidence presented. Rather, the only evidence submitted on this

element was Watson=s mother=s testimony that defendant had lived at the Watsons= apartment Aon and off@

in the past and had been staying there for Aabout a week or so@ prior to the night of the incident. Even

assuming that defendant was residing at the Watsons= home, the cocaine was not discovered on their

premises, but in a mailbox outside their building. There was no evidence that defendant had access to the

mailbox key. Thus, the evidence established only his mere presence in the vicinity of the larger bag of

cocaine and not the capacity to maintain control over it. See, e.g., People v. Ortiz, 91 Ill. App. 3d

466, 471-72, 414 N.E.2d 1072, 1076 (1980) (affirming conviction for possession of

heroin where drugs were found in a locked storage cabinet and defendant, when asked by police to open it,

removed the cabinet key from his key ring and handed it to police). Accordingly, the State failed to prove

the element of possession with respect to the larger bag of cocaine. Therefore, we reverse defendant=s

conviction for the Class 1 felony. 720 ILCS 570/402(a)(2)(A) (West 2002).

        Nevertheless, defendant concedes, and the evidence was sufficient to establish, that defendant

possessed the smaller bag (10.3 grams) of cocaine, a Class 4 felony. 720 ILCS 570/402(c)

(West 2002). Although an accused cannot be convicted of a crime with which he has not been charged,

                                                       -5-
1-04-3295

he Amay be convicted of an offense not expressly included in the charging instrument if that offense is a

>lesser included offense= of the offense expressly charged.@ People v. Jones, 149 Ill. 2d 288,

292, 595 N.E.2d 1071, 1073 (1992). Additionally, pursuant to Supreme Court Rule

615(b)(3), the reviewing court may reduce the degree of the offense for which defendant was convicted.

134 Ill. 2d R. 615(b)(3). Consequently, we reduce the degree of the offense to possession of more

than 1 gram but less than 15 grams of cocaine. This lesser offense carries with it a prison term of Anot

less than 1 year and not more than 3 years@ (730 ILCS 5/5-8-1(7) (West 2002)), whereas

the greater offense mandated a prison sentence of Anot less than 4 years and not more than 15 years.@

720 ILCS 570/402(a)(2)(A) (West 2002). Therefore, we remand for resentencing on

the lesser included offense. In light of our ruling, we need not address defendant=s additional contentions.

        Affirmed as modified; cause remanded with directions.

        HOFFMAN, P.J., and KARNEZIS, J., concur.




                                                     -6-
          REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
      _________________________________________________________________

           THE PEOPLE OF THE STATE OF ILLINOIS,

                 Plaintiff-Appellee,

                 v.

           DAVID SCOTT,

                 Defendant-Appellant.

      ________________________________________________________________

                                       No. 1-04-3295

                             Appellate Court of Illinois
                            First District, Third Division

                             Filed: August 30, 2006
      _________________________________________________________________

                 JUSTICE THEIS delivered the opinion of the court.

                     Hoffman, P.J., and Karnezis, J., concur.
      _________________________________________________________________

                  Appeal from the Circuit Court of Cook County
                     Honorable Rickey Jones, Judge Presiding
      _________________________________________________________________

For APPELLANT,          Michael J. Pelletier, State Appellate Defender
                        Ryan T. Neumeyer, Assistant Appellate Defender
                        Office of the State Appellate Defender
                        203 N. LaSalle St., 24th Floor
                        Chicago, IL 60601

For APPELLEE,           Richard A. Devine, State=s Attorney
                        James E. Fitzgerald, Assistant State=s Attorney
                        Whitney Bond, Assistant State=s Attorney
                        Paula Borg, Assistant State=s Attorney
                        300 Richard J. Daley Center
                        Chicago, IL 60602
