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                               Appellate Court                             Date: 2016.02.18 15:47:33
                                                                           -06'00'




                   People v. Moore, 2015 IL App (1st) 140051



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



District & No.    First District, Third Division
                  Docket No. 1-14-0051



Filed             December 16, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 13-CR-8583; the
Review            Hon. Nicholas R. Ford, Judge, presiding.



Judgment          Reversed.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Robert N. Melching, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

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



Panel             JUSTICE PUCINSKI delivered the judgment of the court, with
                  opinion.
                  Justices Fitzgerald Smith and Lavin concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Following a bench trial, defendant Darryl Moore was convicted of two counts of
     unlawful possession of ammunition by a felon and one count of possession of a controlled
     substance (cocaine). Defendant was subject to Class X sentencing due to his criminal
     background, and the trial court sentenced defendant to six years in prison on each count, with
     those terms to be served concurrently. On appeal, defendant contends the State failed to
     prove his constructive possession of the contraband beyond a reasonable doubt. Because we
     agree the State did not establish that defendant had immediate and exclusive control over the
     area where the contraband was recovered, we reverse defendant’s convictions.

¶2                                         BACKGROUND
¶3       The State charged defendant with two counts of unlawful use or possession of a weapon
     by a felon for knowingly possessing ammunition in his abode having previously been
     convicted of a felony. Defendant also was charged with one count of possession of between 1
     and 15 grams of a controlled substance (cocaine) with intent to deliver.
¶4       At about 8:20 p.m. on April 6, 2013, Chicago police executed a search warrant at 239
     West 105th Street in Chicago. A copy of the complaint for the search warrant was not
     entered into evidence and is not included in the record on appeal. Two police officers who
     executed the search warrant testified for the State. Chicago police officer Dennis Huberts
     testified that when the team of officers arrived at 239 West 105th Street, he went to the front
     of the residence and saw defendant jump out of a window on the side of the house. The
     window was six or seven feet above the ground and was later determined to be a bathroom
     window. Defendant fled and was apprehended about six houses away.
¶5       Officer Huberts testified he searched “a portion of the basement” and “some part of the
     living room.” He recovered bullets from “a desk or a drawer upstairs in the living room” and
     recovered .22-caliber ammunition and suspected cocaine from the basement rafters.
¶6       The State entered into evidence photographs of the basement stairwell and the basement.
     When asked if he took any photographs of the rafters from which the ammunition and
     cocaine were retrieved, Officer Huberts replied, “No, it was kind of hard to get, really dark. It
     was a really small spot.” On cross-examination, Officer Huberts said he did not see defendant
     handle any of the contraband or discard anything while emerging from the window.
¶7       Chicago police officer Jeffrey West testified he searched a bedroom in the residence,
     which he believed was one of three bedrooms. Officer West testified the bedroom contained
     men’s clothing. He also recovered from a dresser drawer in the bedroom a letter addressed to
     defendant at 239 West 105th Street, Chicago, Illinois 60628.
¶8       On cross-examination, Officer West was asked how many other people were present
     when the warrant was executed, and he responded, “I can recall about three offhand,”
     including one elderly female and “another individual within the residence.” Officer West did
     not recall seeing other men in the residence and did not see defendant handle the contraband.
     The letter taken from the dresser in the bedroom had a postmark of October 31, 2012.
¶9       The parties stipulated that the packet removed from the rafters tested positive for 2.6
     grams of cocaine. The parties further stipulated defendant had a prior felony conviction for
     possession of a controlled substance with intent to deliver.

                                                 -2-
¶ 10       At the close of the State’s case, the defense moved for a directed finding, asserting no
       evidence was presented of defendant’s exclusive control of the contraband. The court denied
       that portion of the defense motion but granted the motion as to the count of possession of
       cocaine with intent to deliver, stating the count would be considered as alleging “straight
       possession.”
¶ 11       The defense presented three witnesses. Tempie Thomas testified she lived at the house
       with her granddaughter, Veronica Lindsey, and Lindsey’s three children. Thomas testified
       defendant was her great-grandson and did not live at her house on April 6, 2013. Thomas sat
       in her living room while police searched the house. Defendant was not present.
¶ 12       On cross-examination, Thomas reiterated that defendant did not live with her and “[n]one
       of my kids live with me. They all come in and out, but nobody lives with me.” Contrary to
       her statement on direct examination, Thomas acknowledged defendant was at the house that
       day and also said he had received mail there. Thomas denied owning the contraband.
¶ 13       Carla Brown testified she was visiting defendant at Thomas’s residence on the day of the
       search; however, she stated defendant did not live there. When the police arrived to execute
       the warrant, she was in the bathroom and defendant was outside. While seated in the living
       room during the search, Brown saw police recover a box of bullets from under a cabinet.
¶ 14       Shaniece Thomas testified she was defendant’s sister and that defendant had lived with
       her family in East Chicago, Indiana, since January 2013. Thomas said defendant left at about
       8 a.m. on April 6, 2013, to go to their grandmother’s house.
¶ 15       At the close of evidence, the trial court made the following findings:
                    “Finding of guilty to straight possession of a controlled substance. Finding of
                guilty of [unlawful use of a weapon] by a felon. My basis of the finding is his exit–by
                the way, I believe the officer of what he said completely [sic], the defendant jumping
                out of the bathroom window. I believe that.
                    Secondly, I believe the defendant’s witness that that’s where he was residing in
                the city of Chicago. I believe the piece of mail that he was found, five or six months
                before the incident, that shows that he did reside at that address.
                    And I finally want to indicate that in this particular circumstance I would find
                obviously that the elderly woman that testified that did reside there was the
                property–the homeowner of that home and that she absolutely had nothing to [do]
                with this because these drugs were secreted in her home by the man, I think it could
                be inferentially argued, left from the window of that home upon the entry of the
                police into that home, the man responsible for the execution of a search warrant on
                that home, the defendant before me today.”
¶ 16       At sentencing, the State offered proof of defendant’s four prior felony convictions. Based
       on his criminal history, defendant was sentenced as a Class X offender to three concurrent
       terms of six years in prison.
¶ 17       On appeal, defendant contends his convictions should be reversed because the evidence,
       even when viewed in the light most favorable to the State, did not establish he had
       knowledge of the presence of the contraband or that he had control over the premises so as to
       prove his constructive possession.




                                                  -3-
¶ 18                                     STANDARD OF REVIEW
¶ 19        Where, as here, a defendant challenges the sufficiency of the evidence, a criminal
       conviction will not be overturned unless the evidence is so improbable or unsatisfactory that
       it creates a reasonable doubt as to the defendant’s guilt. People v. Givens, 237 Ill. 2d 311, 334
       (2010) (citing People v. Collins, 106 Ill. 2d 237, 261 (1985)). In such a case, it is not the
       function of this court to retry the defendant; rather, the relevant inquiry is 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. Id. (quoting
       People v. Davison, 233 Ill. 2d 30, 43 (2009), quoting Jackson v. Virginia, 443 U.S. 307, 319
       (1979)).
¶ 20        Before applying that legal standard, this court is compelled to note that both defendant
       and the State make arguments in their briefs that are not based on the evidence presented to
       the trial court. In assessing the sufficiency of the evidence on appeal, this court is constrained
       by that evidence and cannot venture outside the record and consider those arguments. See
       People v. Benford, 31 Ill. App. 3d 892, 894 (1975) (“[i]n an appeal, the purpose of review is
       to evaluate the record of the trial court, and, in general, the review will be limited to what
       appears in the record”).

¶ 21                                           ANALYSIS
¶ 22       With that principle in mind, we consider the evidence pertaining to the convictions in this
       case. Defendant was convicted of the unlawful use or possession of firearm ammunition by a
       felon and also was convicted of the possession of cocaine. Thus, the State was required to
       prove beyond a reasonable doubt that defendant knowingly possessed ammunition and
       previously had been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2010). The State also
       was required to prove beyond a reasonable doubt that defendant had knowledge of the
       presence of the cocaine and that the cocaine was in his immediate possession or immediate
       control. 720 ILCS 570/401(c)(2) (West 2010).
¶ 23       Knowing possession may be actual or constructive. People v. Smith, 2015 IL App (1st)
       132176, ¶ 26. Here, because defendant was not seen in the presence of the recovered
       contraband, the State was required to show that defendant constructively possessed it. See
       People v. Hannah, 2013 IL App (1st) 111660, ¶ 28. To establish constructive possession, the
       State must prove defendant had knowledge of the contraband and exercised immediate and
       exclusive control over the area where the contraband was found. People v. Maldonado, 2015
       IL App (1st) 131874, ¶ 23. Constructive possession can be demonstrated if the defendant
       once had physical control over the contraband with intent to exercise control again, the
       defendant has not abandoned the items, and no other person has obtained possession. People
       v. Adams, 161 Ill. 2d 333, 345 (1994). Constructive possession is typically proved entirely
       through circumstantial evidence. Smith, 2015 IL App (1st) 132176, ¶ 26.
¶ 24       The State relies on the mail and clothing recovered from the bedroom as proof that
       defendant lived at the house and thus had control of the area for purposes of constructive
       possession. The State further argues the knowledge element was met by defendant’s flight
       from the house as the officers entered.
¶ 25       We first consider whether the State presented sufficient proof of defendant’s knowledge
       of the contraband. Knowledge is rarely proven by direct evidence, but may be shown by
       evidence of the defendant’s acts, statements or conduct from which a fact finder may infer

                                                   -4-
       the defendant knew of the presence of the prohibited items. Id.; Maldonado, 2015 IL App
       (1st) 131874, ¶ 40. Here, the police observed defendant leaving the house through a
       bathroom window and found mail addressed to defendant in a bedroom, along with male
       clothing. However, the contraband was not recovered from that area. Upon searching the
       house, ammunition was recovered from inside a desk or cabinet drawer in the living room
       and ammunition and drugs were found in a relatively hidden area in the basement rafters.
¶ 26        In finding defendant knowingly possessed those items, the trial court relied on the fact
       that defendant was seen fleeing from the residence when police arrived. Evidence of flight is
       admissible as tending to demonstrate a defendant’s consciousness of guilt. People v. Harris,
       52 Ill. 2d 558, 561 (1972). Still, the fact of flight is to be considered “in connection with all
       other evidence in a case.” People v. Lewis, 165 Ill. 2d 305, 349 (1995). The inference of guilt
       which may be drawn from flight depends upon the knowledge of the suspect that the offense
       has been committed and that he is or may be suspected. Id. The trial court here cited
       defendant’s flight in finding the evidence sufficient to establish his guilt.
¶ 27        However, in addition to knowledge, the State also had to prove that defendant exercised
       immediate and exclusive control over the area where the contraband was found. See
       Maldonado, 2015 IL App (1st) 131874, ¶ 23. Even where a defendant is first observed
       fleeing from a location where narcotics are found, that fact is not sufficient to prove
       constructive possession, absent any further indicia of knowledge or control. In re K.A., 291
       Ill. App. 3d 1, 7-9 (1997). A defendant’s residency at the location where contraband is
       recovered has been found to constitute sufficient evidence of control so as to establish
       constructive possession. Maldonado, 2015 IL App (1st) 131874, ¶ 29. “ ‘ “Proof of residency
       in the form of rent receipts, utility bills and clothing in closets is relevant to show the
       defendant lived on the premises and therefore controlled them.” ’ ” People v. Spencer, 2012
       IL App (1st) 102094, ¶ 17 (quoting People v. Cunningham, 309 Ill. App. 3d 824, 828 (1999),
       quoting People v. Lawton, 253 Ill. App. 3d 144, 147 (1993)).
¶ 28        The State’s evidence, even taken in its most favorable light, did not establish that
       defendant lived at 239 West 105th Street. The State presented a piece of mail addressed to
       defendant and postmarked more than six months earlier. That item was found in a bedroom
       that also contained male clothing but that clothing was not specifically linked to defendant.
       No other evidence connected defendant to the residence. In contrast, defendant presented
       three witnesses who testified he did not live at the house. Moreover, defendant’s
       great-grandmother testified her young relatives “all come in and out” of the house. Thus, the
       evidence in this case did not establish defendant’s immediate and exclusive control over the
       premises.
¶ 29        In People v. Ray, 232 Ill. App. 3d 459, 460-61 (1992), which defendant cites in his brief,
       the defendants’ convictions were reversed in the face of stronger evidence of constructive
       possession than was presented here. In Ray, police recovered cocaine, cash and drug
       paraphernalia from the apartment living room where the three defendants were sitting.
       Despite the defendants’ seated positions within a few feet of the contraband, the appellate
       court reversed their convictions for cocaine possession, noting the only evidence connecting
       them to the apartment was a six-month-old cable TV bill in the name of one defendant. Id. at
       461-63. Here, as in Ray, the single piece of mail addressed to defendant dated six months
       prior, and male clothing in a bedroom, were the only items tying defendant to the residence.
       The contraband here was not in the presence of defendant.

                                                   -5-
¶ 30       The State contends the facts here are comparable to those in Spencer, 2012 IL App (1st)
       102094, which also involved the defendant’s flight during the execution of a search warrant.
       In Spencer, this court found the evidence at the defendant’s bench trial was sufficient to show
       that the defendant constructively possessed a firearm and ammunition based on items that
       established the defendant’s residency in the searched house. Id. ¶ 18. When police entered
       the house to perform the search, the defendant fled and was apprehended in the backyard. Id.
       ¶ 3. The officers recovered a .357-caliber revolver and ammunition from the top of a kitchen
       cabinet. Id. ¶ 5. The items recovered from a bedroom included three rounds of .357-caliber
       ammunition, an Illinois identification card bearing the defendant’s name and listing the
       searched house as his residence, a set of keys that operated the house’s exterior doors, two
       photographs of the defendant, men’s clothing, a four-month-old letter from the Cook County
       probation department mailed to the defendant at the address of the searched house, and
       $9,000 in cash. Id. ¶ 4. After the ammunition and cash were recovered, the defendant “made
       a statement to the effect that he needed to have a gun because of the amount of money that he
       had.” Id. ¶ 18.
¶ 31       Affirming the defendant’s conviction on appeal, this court held in Spencer that proof of
       the defendant’s residency and his statements to police connected the defendant to the gun
       recovered from the kitchen. Id. This court further noted the defendant’s flight from the house
       as evidence of his consciousness of guilt. Id. Viewing all of that evidence in the light most
       favorable to the State, this court held that a rational trier of fact could have found the
       defendant constructively possessed the revolver and ammunition recovered in the search. Id.
¶ 32       Several points distinguish Spencer from the case at bar. First, the items recovered in the
       house in Spencer were far more comprehensive than the personal effects here. In contrast to
       the male clothing and a single piece of correspondence recovered by police in this case, the
       officers in Spencer found an identification card showing defendant lived at the subject
       address, a set of keys to the residence, and photographs of the defendant. Id. ¶ 4. Second,
       some of the ammunition in Spencer was recovered from the bedroom in which the
       defendant’s personal effects also were found. Here, police found the contraband in other
       areas of the house. Third, the defendant in Spencer admitted his knowledge of a weapon in
       the house. In this case, defendant made no such admission. Although the trial court in
       Spencer noted the defendant’s flight from the house as evidence of his consciousness of guilt,
       as did the trial court here, the facts supporting knowledge of the contraband and control over
       the area where the contraband was found were far stronger in Spencer than in the case before
       us.
¶ 33       Even when viewed in the light most favorable to the prosecution, the evidence presented
       to the trial court does not support a finding that defendant committed the essential elements
       of the crime beyond a reasonable doubt. Although defendant was seen fleeing from 239 West
       105th Street when police arrived, the State did not prove that defendant exercised immediate
       control over the area where the illegal items were found.

¶ 34                                       CONCLUSION
¶ 35      Accordingly, defendant’s convictions for unlawful possession of ammunition by a felon
       and possession of a controlled substance (cocaine) are reversed. Given that disposition, we
       need not address defendant’s contention on appeal relating to the correction of the mittimus.


                                                  -6-
¶ 36   Reversed.




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