                         Illinois Official Reports

                                Appellate Court



                   People v. Maldonado, 2015 IL App (1st) 131874



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



District & No.      First District, Second Division
                    Docket No. 1-13-1874



Filed               June 30, 2015
Rehearing denied    August 10, 2015


Decision Under      Appeal from the Circuit Court of Cook County, No. 11-CR-13472; the
Review              Hon. Michael Brown, Judge, presiding.



Judgment            Reversed.



Counsel on          Michael J. Pelletier and Kieran M. Wiberg, both of State Appellate
Appeal              Defender’s Office, of Chicago, for appellant.

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



Panel               JUSTICE PIERCE delivered the judgment of the court, with opinion.
                    Justices Neville and Liu concurred in the judgment and opinion.
                                              OPINION

¶1       Following a bench trial, defendant Louis Maldonado was convicted of three counts of
     unlawful use or possession of ammunition by a felon (UUWF) (720 ILCS 5/24-1.1 (West
     2010)) and possession of a controlled substance with intent to deliver 1 gram or more but less
     than 15 grams of heroin (720 ILCS 570/401(c)(1) (West 2010)). Defendant was sentenced to
     three years of intensive drug probation. On appeal, defendant argues that the State failed to
     prove him guilty of UUWF and possession of heroin with intent to deliver beyond a reasonable
     doubt; the trial court erred when it denied defendant’s motion to disclose the identity of the
     State’s informant; multiple errors by the trial court prevented important evidence from being
     presented that caused defendant to be convicted on evidence that did not exist; and, he was
     erroneously assessed a $750 controlled substance emergency response fine that must be
     vacated. For the following reasons, we reverse.

¶2                                         BACKGROUND
¶3        Acting on a tip from an unnamed informant, the Chicago police department obtained and
     executed a search warrant for the premises located at 4459 West Washington Boulevard on
     July 13, 2011. No one was home before, during or after the search was conducted. Police
     searched the two-story, three-bedroom home and found several boxes of ammunition, a small
     amount of heroin hidden in a statue and a box containing a scale and $1,500 cash.
¶4        Officer Angelo Monaco testified that he participated in the execution of the search warrant
     at the premises located at 4459 West Washington Boulevard, a single-family, two-story home
     with bedrooms on the second floor and a living room and kitchen on the first floor. He searched
     the south bedroom on the second floor. Next to the bed, on a nightstand, he found a small statue
     that was closed. Inside the statue was a plastic bag containing suspected heroin. Under the bed
     he also found a box containing some money and an electronic scale. Officer Monaco testified
     that scales are sometimes used for weighing narcotics. There was no cross-examination.
¶5        Officer Chad Behrend testified that he also participated in the execution of a search warrant
     at 4459 West Washington Boulevard. The officers determined no one was in the home at the
     time of the search. On top of a dresser in the second-floor middle bedroom he found a white
     box containing two boxes of ammunition. One box contained .38-special ammunition and the
     other contained 9-millimeter ammunition. Also on top of the dresser were women’s wigs and
     other women’s items like lotion and perfume. He did not find any men’s items or men’s
     clothing on the dresser.
¶6        Sergeant Reina testified that he was the supervisor during the search of 4459 West
     Washington Boulevard. He searched the kitchen and found a box of .22-caliber ammunition in
     a drawer in the center island. He also counted the money that Officer Monaco found under the
     bed and concluded that it was $1,500. There was no cross-examination.
¶7        Officer Wayne Franco testified to the inventory process for the items found on the
     premises. The parties stipulated that Officer Cilio recovered “three pieces of proof of
     residency” from the premises: two pieces of mail and a delivery receipt. All three pieces bore
     the defendant’s name and were addressed to 4459 West Washington Boulevard. One unopened
     envelope was addressed: Louis Maldonado, 4459 W. Washington. This envelope appeared to
     be “some kind of mass marketing material.” The second unopened envelope was addressed:


                                                 -2-
       Louis Maldonado, Wilner Jackson, 4459 W. Washington. This envelope appeared to be sent by
       ABC Bank. The delivery receipt showed the issuing merchant as Mister Discount General
       Merchandise. Next to the word “name” was the hand-printed name Louis Maldonado and next
       to the word “address” was hand-printed 4459 West Washington. In the area marked “received”
       was a signature “Wilner Maldonado” with the hand-written date of July 12, 2013.
¶8          The Illinois State Police crime lab tested the recovered narcotics. The narcotics tested
       positive for heroin and totaled 4.3 grams. The State offered defendant’s 1987 conviction for
       possession of a stolen motor vehicle in No. 86 CR 02215 to establish his prior felony
       conviction.
¶9          Defendant moved for a directed finding of not guilty, arguing insufficient proof of
       defendant’s dominion or control over the premises. Defendant argued that the contraband was
       found in the midst of women’s clothing and women’s wigs and there were no admissions of
       residency. The court denied defendant’s motion. The State rested.
¶ 10        Defendant’s wife, Wilner Maldonado, testified for the defense. She owned the residence at
       4459 West Washington Boulevard in July 2011. Defendant was her sixth husband, and two of
       her previous husbands lived at that residence prior to defendant. Wilner’s ex-boyfriend,
       goddaughter and half-sister also lived at the residence prior to July 2011. Wilner’s
       ex-boyfriend, Joe Dunning, left in 2010 after Wilner “put him out.” Defendant moved into the
       house in March 2011.
¶ 11        When defense counsel attempted to elicit testimony from Wilner regarding Dunning’s drug
       problems, the State objected. The objection was sustained. Defense counsel then asked Wilner
       if, to her knowledge, Dunning had ever used drugs. The State’s objection was sustained.
       Defense counsel then asked Wilner if she ever saw Dunning with drugs. The State made a
       relevancy objection and the court instructed defense counsel to lay a foundation. Defense
       counsel argued that he expected the testimony to be that Dunning had drugs in the house.
       Counsel then abandoned that line of questioning.
¶ 12        Wilner then testified that the statue containing the heroin that was found in the south
       bedroom belonged to her and that she had owned the statue for about 10 years. She stated that
       the middle bedroom was used by her goddaughter and that the clothing on the bed in the
       middle room belonged to her goddaughter. In the State’s photographs, she identified her
       umbrella, her wigs and “some old ammunition” of hers. The closet in the middle bedroom
       contained Wilner’s clothes, defendant’s clothes and her goddaughter’s clothes. Wilner testified
       that she had been issued a valid firearm owner’s identification (FOID) card, but that it had
       expired in 2008. After this testimony, the trial court, concerned that Wilner might incriminate
       herself by admitting to the possession of ammunition in her home while her FOID card was
       expired, asked her to stop her testimony. The court advised Wilner of her right to an attorney
       and asked her wait in the hallway.
¶ 13        The court then relayed its concern that Wilner was confessing to a crime and indicated that
       it believed that she needed to be advised against incriminating herself and of her right to her
       own attorney. After further discussion, Wilner was brought back before the court. After
       defense counsel objected to the “chilling effect” of the court’s comments, the court advised
       Wilner that because of her testimony, she was entitled to know that she had the right to not
       incriminate herself and the right to an attorney. Wilner observed that “this is mind boggling,”
       and the court refused to answer any of Wilner’s questions on the subject. The court then
       continued the trial to allow Wilner to obtain the advice of counsel.

                                                  -3-
¶ 14       About six weeks later, after consulting with an attorney, Wilner was recalled. She testified
       that she owned the ammunition found in the kitchen. On cross-examination, Wilner stated that
       her FOID card showed her previous address as her residence, not the home she and defendant
       shared. She also testified that defendant had lived with her for about six months before the
       search and that Dunning had not lived in or entered the home during the 18 months prior to the
       execution of the search warrant.
¶ 15       At the conclusion of the trial, the court found defendant guilty of all counts. After hearing
       evidence in aggravation and mitigation, the court sentenced defendant to three years’ intensive
       drug probation. Defendant was also ordered to pay numerous fines and fees, including a $750
       “Controlled Substance Emergency Response” fee. It is from this judgment that defendant now
       appeals.

¶ 16                                              ANALYSIS
¶ 17        Defendant first argues that his conviction for UUWF and possession of heroin with intent
       to deliver should be reversed because the State failed to prove beyond a reasonable doubt that
       the ammunition and the statue where the drugs were hidden belonged to him.
¶ 18        The standard of review on a challenge to the sufficiency of the evidence is whether, after
       viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could
       have found the essential elements of the crime beyond a reasonable doubt. People v. Ross, 229
       Ill. 2d 255, 272 (2008). It is not the function of the reviewing court to retry the defendant or
       substitute its judgment for that of the trier of fact. People v. Collins, 214 Ill. 2d 206, 217
       (2005). The trier of fact assesses the credibility of the witnesses, determines the appropriate
       weight of the testimony and resolves conflicts or inconsistencies in the evidence. People v.
       Naylor, 229 Ill. 2d 584, 614 (2008). The trier of fact is not required to disregard inferences that
       flow from the evidence or search out all possible explanations consistent with innocence and
       raise them to a level of reasonable doubt. People v. Hall, 194 Ill. 2d 305, 332 (2000). A
       criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory
       that it creates a reasonable doubt of the defendant’s guilt. People v. Siguenza-Brito, 235 Ill. 2d
       213, 225 (2009).
¶ 19        Defendant’s argument regarding the sufficiency of the evidence is centered on his wife’s
       testimony that the ammunition and statue belonged to her. Defendant argues that the State did
       not present a single piece of evidence contradicting Wilner’s testimony. The trial court heard
       Wilner’s testimony and remarked that it did not give much credence to her testimony. The trial
       court stated:
                    “Frankly, I don’t believe the testimony of Mrs. Maldonado. It just seems inherently
                improbable that a person would leave behind 4.3 grams of heroin after they leave the
                home and would leave that in there for a substantial period of time without coming
                back to get it. That just doesn’t make sense to me. People who are either in that trade or
                who are heroin users would not leave a substantial quantity of heroin in the home.
                    I find that the testimony concerning the ownership of some of the ammunition
                again is inherently improbable. People may keep souvenirs of relationships, but it is
                generally not bullets. And frankly, under all the circumstances, I find her testimony to
                be incredible.”



                                                    -4-
¶ 20       Due consideration must be given to the fact that the trial court is “best equipped to judge
       the credibility of witnesses.” People v. Wheeler, 226 Ill. 2d 92, 114 (2007). Where “the record
       is not such that the only inference reasonably drawn from flaws in the testimony is disbelief of
       the whole,” the reviewing court should grant the trial court’s credibility determinations
       deference. People v. Cunningham, 212 Ill. 2d 274, 284 (2004). We give deference to the trial
       court’s credibility determination here and decline defendant’s invitation to reassess Wilner’s
       credibility. It is clear the trial judge dismissed Wilner’s testimony in its entirety, leaving no
       basis for us to pick and choose which portions of her testimony we should accept or reject in
       our disposition of this appeal.
¶ 21       That stated, we are left with the State’s evidence, considered in a light most favorable to the
       State, to determine whether the State failed to prove beyond a reasonable doubt that defendant
       had constructive possession of the ammunition and the heroin found in 4459 West Washington
       Boulevard.
¶ 22       Defendant was charged with UUWF and possession of heroin with intent to deliver. Both
       charges require proof of knowledge and possession.1 To convict the defendant of UUWF, the
       State was required to prove beyond a reasonable doubt that defendant knowingly possessed
       firearm ammunition and that he had been previously convicted of a felony. 720 ILCS
       5/24-1.1(a) (West 2010). To establish the elements of possession of heroin with intent to
       deliver, the State was required to prove beyond a reasonable doubt that the defendant had
       knowledge of the presence of the heroin and that the heroin was in his immediate possession or
       immediate control. 720 ILCS 570/401(c)(1) (West 2010).
¶ 23       The possession element in this case was presented under the theory of constructive
       possession rather than actual possession. Proof of constructive possession is sufficient in
       establishing the element of possession and the State need not prove that defendant had actual
       physical possession of the contraband. People v. McLaurin, 331 Ill. App. 3d 498, 502 (2002).
       To establish constructive possession, the State must prove that defendant had knowledge of the
       contraband and that defendant exercised immediate and exclusive control over the area where
       the contraband was found. People v. Love, 404 Ill. App. 3d 784, 788 (2010). Constructive
       possession is often proven entirely by circumstantial evidence. People v. McCarter, 339 Ill.
       App. 3d 876, 879 (2003). Thus, both actual and constructive possession requires proof beyond
       a reasonable doubt that the defendant knowingly possessed the prohibited item.
¶ 24       In this case, the State failed to establish constructive possession with respect to the heroin
       and the ammunition. First, the State did not present any direct evidence establishing
       defendant’s control over the premises. Second, even if the State’s evidence of the two mailings
       and the one delivery receipt was sufficient to draw an inference that defendant controlled the
       premises, the State did not present any evidence, direct or circumstantial, that defendant had
       knowledge of the contraband found therein. The evidence the trial court found credible was, in
       a nutshell: officers searched a residential location that contained men’s and women’s clothing,
       no one was on the scene before, during or after the search, ammunition and heroin hidden in a
       statue was found on the premises along with three documents that bore defendant’s name and
       the address of the premises searched, and a certified copy of defendant’s felony conviction was
       admitted into evidence. Other than an officer reading the name on the documents, the

          1
           Because we find the proof of knowledge and possession lacking, there is no need to discuss
       whether there was sufficient proof of intent to deliver heroin.

                                                    -5-
       defendant’s name was not once uttered during the State’s case-in-chief. This evidence does not
       prove the essential elements of the possessory crimes charged.

¶ 25                                  Proof of Possession and Control
¶ 26       Although defendant does not argue that he did not live in the home where the heroin and
       ammunition were found, in considering the argument that the State did not meet its burden of
       proof beyond a reasonable doubt, we cannot ignore the state of the record: the State did not
       present sufficient evidence to establish defendant’s control of the premises. The police
       searched a residence pursuant to the uncontested authority of a search warrant. Contraband
       was recovered and no effort to suppress the admission of this evidence at trial was made. No
       one was present in the residence when the search warrant was executed. Although irrelevant to
       this appeal, for background purposes we recognize that the warrant issued based on
       information from a confidential informant that, within the last 48 hours, the informant and
       “Louis Maldonado” were in the residence at 4459 West Washington Boulevard when “Louis”
       displayed a silver .44-caliber semiautomatic handgun with a black handle. Setting aside the
       hearsay considerations, a search of the trial transcript does not reveal that the search warrant
       was proffered or admitted into evidence at trial. Therefore, this information in the search
       warrant was not before the trial court.
¶ 27       At trial, the parties stipulated that Officer Cilio “recovered three pieces of proof of
       residency.” The State argues these documents established defendant’s control of the premises.
       We disagree. Although counsel for both sides were not burdened by any notion of precision
       when briefly dealing with the stipulation, in our view the context in which the stipulation was
       spread of record clearly indicates the stipulation was not that the three items were proof that
       defendant lived at 4459 West Washington Boulevard; rather, the purpose of the stipulation was
       foundational: the stipulated items were the three documents recovered during the search,
       offered to support an inference of defendant’s residency and control of the location where the
       contraband was seized.
¶ 28       These three pieces of “proof of residency” consist of one retail delivery receipt and two
       pieces of unopened mail. The receipt, dated July 11, 2011, is captioned “Delivery Sheet” from
       a self-described furniture store that shows defendant’s name as the purchaser and 4459 West
       Washington Boulevard as the purchaser’s address. The receipt indicates that the delivery was
       “checked in good condition” indicated by a handwritten signature reading “Wilner
       Maldonado” (apparently defendant’s wife). One unopened piece of mail bears defendant’s
       name and the address of 4459 West Washington Boulevard and it clearly appears to be a
       solicitation of some kind, i.e., junk mail. A single piece of junk mail has little or no evidentiary
       value given the nature of mass mailing solicitations. The second piece of unopened mail shows
       a return address of ABC Bank with the name Louis Maldonado printed on the first line, the
       name Wilner Jackson printed below and 4459 West Washington Boulevard below that. It is
       unclear whether this piece of mail is official business or whether it is also a junk mail
       solicitation of some kind.
¶ 29       Habitation of the location where contraband is found can constitute sufficient evidence of
       control to establish constructive possession. People v. Spencer, 2012 IL App (1st) 102094,
       ¶ 17; People v. Cunningham, 309 Ill. App. 3d 824, 828 (1999). Numerous reported decisions
       reference mail as part of the evidence used to support an inference that the defendant controlled
       the location where the contraband was recovered regardless of whether the defendant was

                                                    -6-
       present at the time of the seizure. While it is clear from existing case law that mail addressed to
       a defendant found where contraband is recovered may be sufficient to allow an inference of
       residency, and thereby control, we will not draw the same inference when a defendant is not
       present during the execution of a search warrant and other indicia of residency or an admission
       of residency is not shown. People v. McCarter, 339 Ill. App. 3d 876 (2003); People v. Alicea,
       2013 IL App (1st) 112602; see also People v. Jones, 105 Ill. App. 3d 1143 (1982) (defendant
       was not present during search, unopened envelope addressed to defendant insufficient to prove
       control of property); People v. Ray, 232 Ill. App. 3d 459 (1992) (six-month-old cable bill
       insufficient to prove control over premises on theory of constructive possession); People v.
       Blue, 343 Ill. App. 3d 927 (2003) (although defendant was present in the apartment where
       narcotics were found, insufficient evidence of control where there was no testimony of any
       mail addressed to defendant, no rent receipts, no utility bills, no clothing in closets, and no
       proof defendant had a key to the residence); People v. Cunningham, 309 Ill. App. 3d 824
       (1999) (evidence of residency included the defendant carried keys to the house, the address
       was on his driver’s license, his mail was delivered there, and defendant told his parole officer
       that he lived at the residence).
¶ 30        In People v. McCarter, 339 Ill. App. 3d 876 (2003), and People v. Alicea, 2013 IL App
       (1st) 112602, this court discussed evidence of mail addressed to the defendant at the location of
       the search and its import as evidence from which an inference of control could be drawn. In
       McCarter, we found the defendant constructively possessed weapons found in the bedroom in
       his parents’ house even though he was not home at the time the search warrant was executed.
       The weapons were discovered in and on a dresser that had photographs of the defendant
       together with mail addressed to the defendant that was postmarked four days earlier. One
       officer testified he knew the defendant lived there based on prior encounters and the defendant
       made prior statements indicating that he lived there. McCarter, 339 Ill. App. 3d at 879. Thus,
       McCarter illustrates that a mailing in combination with other evidence can be sufficient proof
       of control.
¶ 31        In Alicea, police officers forced entry into a first-floor apartment where an informant
       previously purchased two bags of heroin from Alicea. A man identified as the defendant’s son
       walked out of a rear bedroom. Police recovered weapons in the front bedroom of the
       apartment, along with a United States Treasury check addressed to the defendant. Alicea, 2013
       IL App (1st) 112602, ¶ 6. Alicea was not present at the time of the search of the apartment.
¶ 32        At trial, the State introduced a certified copy of the defendant’s driver’s license abstract
       listing his address as the apartment that was searched. Id. ¶ 12. There was also testimony that
       the defendant left the apartment earlier in the year but his monthly Veteran’s Administration
       check continued to be sent to the searched premises, where his daughter currently lived. Id.
       ¶¶ 14-15. His daughter testified that she deposited her father’s check each month after it
       arrived. Id. ¶ 14.
¶ 33        We reversed the unlawful possession of a weapon by a felon conviction, finding that there
       was insufficient evidence to establish defendant’s residence at the apartment or his control of
       the bedroom where the weapon was found. Id. ¶¶ 28-33. We reasoned that, while the Treasury
       check and the driver’s license abstract supported the inference that the defendant resided at the
       apartment, in light of the conflicting evidence regarding the defendant’s residence, the
       evidence was insufficient to sustain the conviction. Id. ¶¶ 28-30. In addition, we found that it
       was “not inherently incredible” that the defendant would have his government check sent to his

                                                    -7-
       old address if his daughter took care of seeing that it was deposited nor was it unreasonable that
       the defendant’s driver’s abstract would list his prior address, rather than his current address,
       because the defendant’s name may not have appeared on the mortgage or on any bills related to
       the fiancé’s address. Id. ¶ 31. Thus, Alicea illustrates mailings are not dispositive of the issue
       of possession or control even where other evidence of residency is introduced.
¶ 34        Here, defendant was not present when the search warrant was executed. No admissions by
       defendant regarding his residency were introduced by the State. Setting aside the fact there was
       no trial testimony that put defendant in proximity to the contraband at any time, there was no
       testimony that defendant was ever seen inside the location. Other than the three pieces of
       “proof of residency,” which are of minimal inferential value at best, similar to Alicea, the State
       offered no other credible evidence from which a reasonable inference flows to establish
       beyond a reasonable doubt that defendant maintained sufficient legal control of the premises,
       let alone had control over the contents within the premises, including the statue, the bedrooms
       or the common areas.
¶ 35        The State cites People v. Cunningham, 309 Ill. App. 3d 824 (1999), in support of its
       position that it proved defendant’s constructive possession of the contraband. A brief summary
       will demonstrate its inapplicability to the facts of this case. In Cunningham, police obtained a
       search warrant for the defendant and his residence based on an informant’s tip. Id. at 826. The
       defendant was arrested the next day and officers took the defendant to his residence. Officers
       used a key taken from the defendant’s pocket to enter the house. A female, two juveniles and
       two infants were in the home. Officers used another key taken from the defendant to open the
       door to a front bedroom. Inside the bedroom were men’s clothes in the closet and tools on the
       floor. The officers recovered a plastic bag with 420.5 grams of cocaine, three scales, a mixing
       bowl, a box of ammunition, and the defendant’s inmate identification card. They also found a
       bag with 26.67 grams of cannabis in the downstairs bedroom. One of the juveniles claimed that
       the cannabis belonged to him. A mail carrier testified that he delivered mail to the defendant at
       that address and the mail was not returned. Defendant gave that address to his parole officer
       and the arresting officers. The female testified on the defendant’s behalf and claimed that she
       was the only occupant of the front bedroom and that she, her son, her daughter and one other
       person had a key to that room. Id. at 826-27.
¶ 36        On appeal, the defendant argued that the evidence was insufficient to establish constructive
       possession of the cocaine, cannabis and ammunition. Id. at 828. We held that the evidence
       established that the defendant lived at that residence because he carried keys to the house and
       keys to the bedroom, the address of the residence was on his driver’s license, his mail was
       delivered to that address, and the defendant gave that address to his parole officer and the
       police when he was arrested. This court noted that although the female testified that the
       defendant no longer lived there, there was no evidence in the record to show that he lived
       anywhere else. Id.
¶ 37        Cunningham does not support the State’s argument. The evidence presented in
       Cunningham clearly established an inference that defendant did in fact live at that residence
       and therefore had control. He had keys to the entryway door and the bedroom door. The
       address was on his driver’s license. He received mail there. He gave that address to his parole
       officer and the arresting officers. In this case, the only evidence the State offered to establish
       defendant’s control of the premises was one receipt and two pieces of unopened mail bearing
       defendant’s name and the address of the location searched, which is insufficient evidence to

                                                   -8-
       establish proof of control beyond a reasonable doubt.

¶ 38                                 Knowledge as an Essential Element
¶ 39        It is well established that a defendant’s control over the premises where contraband is
       located gives rise to an inference of knowledge of that contraband. People v. Smith, 191 Ill. 2d
       408 (2000). Even if we were satisfied that the State established defendant’s control over the
       premises beyond a reasonable doubt, which we find it did not, the record demonstrates an
       equally fundamental failure to prove beyond a reasonable doubt that defendant had knowledge
       that the contraband was located on the premises.
¶ 40        The State seems to gloss over the required element of knowledge in this case by simply
       relying on the control portion of a constructive possession analysis to prove the element of
       knowledge. However, while knowledge can be inferred based on control, it remains a
       fundamental principle that knowledge is a necessary element of the offense of possession of
       heroin with intent to deliver and of felony possession of ammunition UUWF that must be
       proven beyond a reasonable doubt. People v. Mack, 12 Ill. 2d 151, 159-60 (1957). Knowledge
       is rarely proven by direct evidence and may be established by evidence of the defendant’s acts,
       declarations or conduct from which the inference may be fairly drawn that he knew of the
       existence of the contraband where it was found. People v. Smith, 20 Ill. 2d 345, 350-51 (1960);
       Mack, 12 Ill. 2d at 159-60. Such a factual determination is a question for the trier of fact. Id.
¶ 41        The record is clear that there was no evidence presented to prove defendant’s knowledge of
       the presence of the heroin. With the State failing to present evidence that defendant was ever
       inside the building, there is no evidence of the defendant and the contraband being in such
       proximity that an inference of defendant’s knowledge of the contraband could be established.
       The State presented no evidence of any acts, declarations or conduct by the defendant that
       would allow this court to draw a reasonable inference that defendant had knowledge of the
       presence of the heroin hidden in the statue found on a bedside table. The heroin was secreted in
       the statue. There is no reasonable inference that flows from the evidence in the record that
       defendant at any time would have known the contents of an enclosed statue. While the State
       persists in referencing Wilner’s testimony to infer defendant’s knowledge, the trial court found
       Wilner, a defense witness, incredible. Even if she was found credible, her testimony did
       nothing to support a reasonable inference of defendant’s knowledge of the contents of the
       statue. There was simply no evidence from which we could connect or draw a nexus between
       the drugs found in the statue and defendant. While defendant arguably may have had control
       over the premises, when viewed in the light most favorable to the State, we cannot conclude
       that the evidence in the record established that defendant had knowledge of the heroin located
       on the premises or within the statue. Cf. People v. Givens, 237 Ill. 2d 311 (2010) (affirming
       conviction where defendant was found half asleep within arm’s reach of a razor blade and a
       plastic bag containing 21 smaller bags of cocaine and he admitted during his own testimony
       that he exerted control over the bedroom where the drugs were found). People v. Walton, 221
       Ill. App. 3d 782 (1991) (affirming conviction where during a police chase defendant’s vehicle
       crashed and cocaine was found in the trunk; defendant was found outside the car with 96
       plastic bags and a scale on her person).
¶ 42        We reach the same conclusion with respect to the ammunition. Two boxes of ammunition
       were found in a box in a bedroom containing men’s and women’s clothing with no specific
       testimony to support, at the very least, an inference that it was defendant’s bedroom or his

                                                   -9-
       clothing. There was no evidence that would allow a reasonable inference that defendant had
       knowledge of the ammunition in a box on the dresser found among women’s wigs and other
       women’s items. We similarly conclude that there was no evidence in the record from which we
       can infer defendant’s knowledge of the ammunition found in the kitchen. While the kitchen is
       centrally located and is a common space typically used by all occupants, there was no evidence
       proffered by the State that the defendant was in proximity to the ammunition at or after it was
       placed in the kitchen to allow a reasonable inference that he knew of its presence. Again, with
       no evidence in the record of defendant ever being inside the building, there is no evidence from
       which we can infer that defendant and the ammunition were ever in such proximity that an
       inference of knowledge could be argued much less proven beyond a reasonable doubt.
¶ 43       In so concluding, there is no need to consider defendant’s argument that because other
       people had access to the residence proof of constructive possession failed. Were we to consider
       this argument, we would reject it summarily based on the settled law that constructive
       possession of contraband can be established even where possession is joint or others have
       access to the area where the contraband is recovered. People v. Griffin, 194 Ill. App. 3d 286,
       292 (1990).
¶ 44       The State had the burden of proving beyond a reasonable doubt that defendant knowingly
       possessed the heroin and the ammunition. People v. Hodogbey, 306 Ill. App. 3d 555, 562
       (1999). The State failed to present any evidence that defendant was on the premises at any
       time, or other indicia of control, e.g., keys or a driver’s license or an admission that he was
       connected to the premises, or that defendant was ever in proximity to the contraband
       recovered. Therefore, the State’s evidence was insufficient to prove the essential elements of
       possession and knowledge and defendant’s guilt beyond a reasonable doubt.
¶ 45       In this case, because the State’s three pieces of evidence were insufficient to establish
       defendant’s possession or knowledge of the contraband, we hold that the defendant was not
       proven guilty beyond a reasonable doubt of: (1) possession with intent to deliver or (2)
       possession of ammunition by a felon (UUWF), we need not consider defendant’s remaining
       arguments.
¶ 46       With insufficient evidence to convict, we reverse defendant’s convictions outright and we
       vacate the judgment order imposing all fines and all fees assessed.

¶ 47      Reversed.




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