                       Illinois Official Reports

                                 Appellate Court



                   People v. Evans, 2015 IL App (1st) 130991



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



District & No.    First District, First Division
                  Docket No. 1-13-0991



Filed             June 8, 2015



Decision Under    Appeal from the Circuit Court of Cook County, No. 11-CR-3038; the
Review            Hon. Lawrence Edward Flood, Judge, presiding.



Judgment          Affirmed as modified.



Counsel on        Michael J. Pelletier, Alan D. Goldberg, and Whitney B. Price, all of
Appeal            State Appellate Defender’s Office, of Chicago, for appellant.

                  Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                  Mary P. Needham, and Jocelyn M. Schieve, Assistant State’s
                  Attorneys, of counsel), for the People.



Panel             JUSTICE HARRIS delivered the judgment of the court, with opinion.
                  Presiding Justice Delort and Justice Cunningham concurred in the
                  judgment and opinion.
                                             OPINION

¶1       The circuit court found defendant, James Evans, guilty after a bench trial of possession of
     cannabis and sentenced him to 12 months’ probation. 720 ILCS 550/4(d) (West 2010).
     Defendant raises three issues for our review: (1) whether the State presented sufficient
     evidence to sustain his conviction for possession of cannabis; (2) whether defendant received
     the effective assistance of trial counsel where his counsel did not file a motion to suppress the
     cannabis recovered during his arrest; and (3) whether the circuit court failed to apply a credit
     for the time he served in presentence custody against the various fines imposed on him.
¶2       We hold the State presented sufficient evidence to sustain his conviction for possession of
     cannabis. We decline to review defendant’s claim of ineffective assistance of counsel based on
     the record before us, but note that defendant may still pursue his claim under the
     Post-Conviction Hearing Act (725 ILCS 5/122-1 to 122-7 (West 2010)). The State concedes,
     and we agree, that defendant is entitled to a $5 credit per day for the time he spent in
     presentence custody. 725 ILCS 5/110-14 (West 2010). Accordingly, we reduce the total
     monetary judgment against defendant by $10 based on the two days defendant spent in
     presentence custody.

¶3                                           JURISDICTION
¶4       The circuit court sentenced defendant on February 11, 2013. Defendant timely filed his
     notice of appeal on March 6, 2013. Accordingly, this court has jurisdiction pursuant to article
     VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,
     governing appeals from a final judgment of conviction in a criminal case entered below. Ill.
     Const. 1970, art. VI, § 6; Ill. S. Ct. Rs. 603, 606 (eff. Feb. 6, 2013).

¶5                                        BACKGROUND
¶6       The State charged defendant by information with one count of possession of cannabis
     between 30 and 500 grams in connection with the events that led to defendant’s arrest on
     February 4, 2011. 720 ILCS 550/4(d) (West 2010). On that date, the Chicago police
     department executed a search warrant at 12534 South Bishop Street, in Chicago, Illinois.
¶7       Officer David Guzman of the Chicago police department testified he was part of a team of
     approximately eight other officers executing a search warrant at 12534 South Bishop Street.
     He described the dwelling as a “ranch *** single family residence on a slab.” He could not,
     however, recall the name of the person who was the target of the search warrant. Officer
     Guzman and the team of officers gained entry into the house through the front door, which was
     unlocked. Upon entering the home, the officers found themselves in the living room. Officer
     Guzman announced both his office and their search warrant. He wore civilian clothes
     underneath a police department raid vest. His star vestibule was visible on his belt. The other
     officers present were dressed in a similar manner. He instructed the occupants of the home to
     stay where they were so he could see their hands and to not make any movements. He
     estimated that approximately two adult males, two adult females, and two young children were
     present at the house.
¶8       Officer Guzman explained how he first encountered defendant, and defendant’s actions, in
     the following exchange:


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                 “Q. What did defendant do?
                 A. The defendant was observed in the rear bedroom of the location. He was
             instructed to show his hands and to step towards myself.
                 Q. Did he do that?
                 A. Yes. He did that after throwing an item and closing the door to the location.
                 Q. Did you see what the item was?
                 A. Yes. The item was a tan plastic bag, such as a Jewel[ ] bag.
                 Q. So is it fair to say that the defendant did not remain where he was as you
             ordered?
                 A. Yes.
                 Q. So what did you do? Where did you go?
                 A. I immediately detained [defendant].
                 ***
                 Q. And what did you do then?
                 A. I turned the defendant over to the affiant of the warrant, Officer Matthew[s].
                 Q. And then, what did you do?
                 A. I went into the same bedroom that the defendant was located. I secured that
             bedroom and I recovered the–
                 Q. Let me stop you. When you saw the defendant throw the plastic bag, where did
             he throw it?
                 A. He threw it to the ground.
                 Q. Where was he standing?
                 A. In the bedroom.
                 Q. And did you then retrieve the defendant from that room?
                 A. Yes.
                 Q. Is it at that point that you handed him over to Officer Matthews?
                 A. Yes.
                 Q. Did you return to that same bedroom?
                 A. Yes.
                 Q. What did you do there?
                 A. I recovered the same tan bag.
                 Q. Were there other tan plastic bags in that room?
                 A. No.”
¶9       Officer Guzman later testified that the tan bag was in defendant’s hand, and he saw him
     throw it while defendant was in the bedroom. Officer Guzman had directed defendant to come
     out of the bedroom. As defendant exited the bedroom, defendant threw the tan plastic bag to
     the ground, and then closed the door behind him. Upon checking the contents of the plastic
     bag, Officer Guzman found six smaller bags containing what he suspected to be cannabis.
     Officer Guzman initially described the six smaller bags as “narcotic bags,” but later testified he
     could not recall the type of bags he found inside the tan plastic bag. After showing Officer



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       Matthews the contents of the bag, Officer Guzman continued to search the bedroom and found
       a scale.
¶ 10       On cross-examination, Officer Guzman testified that the subject of the search warrant was
       Cokey Terrell Sweet, not defendant, and they were looking for ecstasy and “DMA.” 1 The
       residence had approximately four bedrooms. When Officer Guzman first entered the house,
       four individuals were in the living room, including a senior citizen and a woman he believed
       was named Jamie Granberry. A woman named Jarah Granberry was also present. Officer
       Guzman could not recall if he was the first officer through the front door of the house, but he
       did remember that he was “one of the first” officers to enter the residence. Officer Guzman did
       not see defendant right away when he entered the apartment. He explained that he entered
       through the front door, passed through the living room, the kitchen, and a utility area before
       arriving in the rear bedroom. Defendant did not try to flee from him. The plastic bag he
       recovered was not submitted for fingerprint analysis. He could not recall if defendant made any
       statements to him indicating that the bag contained cannabis.
¶ 11       On redirect examination, Officer Guzman testified he had seen similar bags prior to this
       occasion. He clarified that he saw “six bundles of clear plastic bags. I don’t recall exactly if the
       packaging that contained the cannabis were Ziploc or sandwich bags or freezer bags. ***
       [B]ecause they were clear plastic, I could see what the contents were in the bag.” He did not
       remove the bags individually to examine them. He estimated the time frame from his entry into
       the house until he first saw defendant as “[a]pproximately less than a minute.”
¶ 12       Chicago police officer Tamara Matthews testified she was part of the team executing the
       search warrant at 12534 South Bishop Street. When she entered the residence, she proceeded
       to an open area near the bedroom where she saw Officer Guzman. Officer Guzman instructed
       her to detain defendant while Officer Guzman walked into the bedroom. The door to the
       bedroom was closed, so Officer Guzman opened the door. She saw Officer Guzman retrieve a
       tan plastic bag from the floor. He looked inside the bag and walked toward Officer Matthews
       with a bag in his hand which contained cannabis. Officer Guzman then retrieved small square
       bags, which Officer Matthews knew from experience are used to package narcotics for
       distribution. Officer Guzman also recovered a scale from the floor of the bedroom. Officer
       Matthews searched the bedroom and found evidence which listed defendant’s name and his
       address as 12534 South Bishop Street, including: an Illinois State Police citation; an Illinois
       identification card; a firearm owner’s identification card; and an Illinois driver’s license. On
       cross-examination, Officer Matthews denied that she recovered “the ID[’s]” out of defendant’s
       wallet.
¶ 13       The parties stipulated that the police maintained a proper chain of custody over the six bags
       the police recovered from the scene. The parties further stipulated that the police tested two of
       the six bags, which contained 51.9 grams of cannabis. The total weight of all of the substance
       in the bags was 155.7 grams.
¶ 14       The circuit court denied defendant’s motion for a directed verdict.
¶ 15       Jamie Granberry, defendant’s sister, testified she lives with her father, her sister, her
       sister’s children, and her own children, at 12534 South Bishop Street. Defendant, however,
       lived with his fiancée in Blue Island, Illinois. On the day of the incident, defendant went to her
       house to help shovel snow. When he arrived at 8 a.m., he came inside to say hello before going
          1
           Officer Guzman did not define DMA.

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       outside to shovel snow. At 10 a.m., defendant came inside and “stretched out on the couch”
       because he was tired from shoveling snow. Defendant, Granberry, and her father then sat
       around talking in the living room. At noon, the police “kicked right through the door.”
       Defendant remained sitting on the couch. She did not see him holding a tan bag of cannabis.
       Her sister, Jarah, lives in the back bedroom. She testified that defendant moved out of the
       house “six or seven” years earlier, but explained that the home at 12534 South Bishop Street is
       the family house and the house where defendant grew up. When defendant moved out, he took
       all of his belongings and he did not pay bills from there.
¶ 16        Defendant testified that on February 4, 2011, he lived in Blue Island, Illinois, with his
       fiancée and three kids. He did not change his address on his driver’s license because he “was
       still going to school and a lot of important information was still being retrieved at my address
       that I had used for years.” On the day of the incident, he went to the family home on South
       Bishop Street around 8 a.m. to help shovel snow after a blizzard. After shoveling snow, he
       came back inside and sat on the couch in the living room. At noon, the police kicked the door
       of the house down. Defendant, his sister Jamie, Jamie’s kids, and his father were sitting in the
       front of the house. Antoine Sweet, his sister’s boyfriend, was in the back of the house.
       Defendant testified he “cooperated” with the police but then became upset and “began lashing
       out” at the police. The police responded by putting defendant in handcuffs. Defendant testified
       that the police first secured the front of the house before heading toward the back of the house.
       He estimated it took the police “between thirty and forty-five minutes” to find the cannabis.
       Defendant testified that he had never seen the cannabis before and that the police retrieved his
       identification from his wallet out of his pocket.
¶ 17        On cross-examination, defendant testified that he had been out of the family house “a little
       over six years.” He clarified that when the police returned from the back of the house, they
       were “dangling the bag” of cannabis. He did not know where they got the bag because he was
       in the front of the house. When asked why his Illinois State identification card, which was
       issued on April 23, 2010, still listed the South Bishop Street address as his residence, he
       answered he “never changed it. It’s the same one that I got issued prior. It was actually a
       renewal that was expired.” He kept the South Bishop Street address as his mailing address. He
       agreed that he was issued a new driver’s license on November 10, 2010, with South Bishop
       Street as his address despite not living there. He also admitted that he received a traffic citation
       on January 1, 2010, which listed his address as South Bishop Street. He also admitted his
       firearm owner’s identification card lists the home on South Bishop Street as his address.
¶ 18        After closing arguments, the circuit court found defendant guilty of possession of cannabis.
       The court noted that both police officers testified consistently. The court described the State’s
       account of the possession and recovery of the cannabis as “clear,” but found defendant and his
       sister incredible.
¶ 19        Defendant filed a motion for a new trial, which the circuit court denied. On February 11,
       2013, the circuit court sentenced defendant to 12 months’ probation. The circuit court awarded
       defendant two days’ credit for time served in presentence custody and assessed defendant
       $1,189 for various fines and costs. On March 6, 2013, defendant appealed.

¶ 20                                            ANALYSIS
¶ 21      Before this court, defendant challenges the sufficiency of the evidence used against him,
       argues that he received ineffective assistance of trial counsel, and contends that he is entitled to

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       reduce the fines imposed against him by the credit he received for the time he served in
       presentence custody.

¶ 22                                      Sufficiency of the Evidence
¶ 23        Defendant first argues that the State failed to prove beyond a reasonable doubt that he
       possessed the cannabis at issue because his finding of guilt was based on the uncorroborated
       testimony of a single police officer, Officer Guzman. According to defendant, Officer
       Guzman’s testimony was highly improbable, incredible, and contrary to human experience.
       Defendant questions Officer Guzman’s ability to enter through the front door of the residence,
       announce his office, and make his way to the back of the house to see defendant drop the
       plastic bag. Defendant also points out that he did not live at the address where the cannabis was
       found and the search warrant named another individual. Defendant argues throughout his brief
       that Officer Guzman saw defendant “drop” the bag that contained the cannabis later found by
       Officer Guzman. The State responds that the evidence it presented proved beyond a reasonable
       doubt that defendant possessed the cannabis found by the police.
¶ 24        The due process clause of the fourteenth amendment to the United States Constitution
       ensures that an accused defendant is not convicted of a crime “except upon proof beyond a
       reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In
       re Winship, 397 U.S. 358, 364 (1970); People v. Carpenter, 228 Ill. 2d 250, 264 (2008). It is
       not, however, the function of this court to retry a defendant when reviewing whether the
       evidence at trial was sufficient to sustain a conviction. People v. Hall, 194 Ill. 2d 305, 329-30
       (2000). Rather, our review is focused on “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 offense beyond a reasonable doubt.” People v. Baskerville, 2012 IL 111056, ¶ 31. “The
       requirement that a defendant’s guilt be proved beyond a reasonable doubt does not mean that
       inferences flowing from the evidence should be disregarded.” People v. Schmalz, 194 Ill. 2d
       75, 81 (2000).
¶ 25        The trier of fact is responsible for determining a witness’s credibility and the weight to be
       given to a witness’s testimony, as well as drawing any reasonable inferences from the
       evidence. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Therefore, we will not substitute our
       judgment for that of the trier of fact when considering such matters. People v. Brown, 2013 IL
       114196, ¶ 48. The findings of the trier of fact are given great weight because it saw and heard
       the witnesses. People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007). Although the trier of fact is
       accorded great deference, its decision is not binding or conclusive. Id. at 115. Reversal of a
       conviction is necessary “where the evidence is so unreasonable, improbable, or unsatisfactory
       as to justify a reasonable doubt of defendant’s guilt.” People v. Ortiz, 196 Ill. 2d 236, 259
       (2001).
¶ 26        In order to find defendant guilty of possession of cannabis, the State had to prove beyond a
       reasonable doubt that defendant knowingly possessed the cannabis found by the police. 720
       ILCS 550/4 (West 2010). Where, as in this case, a defendant is found to possess more than 30
       grams of any substance containing cannabis, but less than 500 grams, and it is the defendant’s
       first offense, it is a Class 4 felony. 720 ILCS 550/4(d) (West 2010). The element of possession
       may be shown by actual possession or constructive possession. People v. Givens, 237 Ill. 2d
       311, 335 (2010). Actual possession, however, is not shown by mere proximity to the illicit
       material. Schmalz, 194 Ill. 2d at 81. “Actual possession is the exercise by the defendant of

                                                   -6-
       present personal dominion over the illicit material and exists when a person exercises
       immediate and exclusive dominion or control over the illicit material, but does not require
       present personal touching of the illicit material.” Givens, 237 Ill. 2d at 335. “Where possession
       has been shown, an inference of guilty knowledge can be drawn from the surrounding facts and
       circumstances.” Schmalz, 194 Ill. 2d at 82. This court has held that “[t]he act of dominion may
       be that defendant had the contraband on his person, that he tried to conceal it, or that he was
       seen throwing it away.” People v. Ray, 232 Ill. App. 3d 459, 461 (1992). It is the role of the
       trier of fact to determine the factual question of knowledge and possession or control. Schmalz,
       194 Ill. 2d at 81. Circumstantial evidence may be used to satisfy the elements of possession.
       People v. Eghan, 344 Ill. App. 3d 301, 307 (2003).
¶ 27        After viewing the evidence in the light most favorable to the State, we hold that a rational
       trier of fact could have found that defendant possessed the cannabis recovered by the police in
       this case. Specifically, Officer Guzman testified that he instructed defendant to show his hands
       and to come forward. Officer Guzman testified that defendant complied, but only “after
       throwing an item and closing the door” to the bedroom. That item was the plastic bag, which
       Officer Guzman subsequently recovered and found the cannabis at issue here. The plastic bag
       was the only one in the room where Officer Guzman found it. He later testified that he saw the
       bag in defendant’s hand. Officer Guzman estimated that it took “[a]pproximately less than a
       minute” for him to enter the house before he encountered defendant. The act of possession is
       shown when a person exercises dominion over illicit material. Givens, 237 Ill. 2d at 335. This
       court has held that “[t]he act of dominion may be that defendant had the contraband on his
       person, that he tried to conceal it, or that he was seen throwing it away.” Ray, 232 Ill. App. 3d
       at 461. Accordingly, the State in this case showed that defendant had possession of the
       cannabis through Officer Guzman’s testimony that he witnessed defendant throwing a bag
       containing cannabis from his hand.
¶ 28        Furthermore, “[w]here possession has been shown, an inference of guilty knowledge can
       be drawn from the surrounding facts and circumstances.” Schmalz, 194 Ill. 2d at 82. The facts
       and circumstances of this case are that defendant threw the bag and shut the door before
       complying with Officer Guzman’s instructions to show his hands and to step toward him. The
       reasonable inference flowing from these facts and circumstances is that defendant disposed of
       the bag containing the cannabis, by throwing it, when he saw Officer Guzman and heard his
       instructions.
¶ 29        We note that throughout defendant’s brief, he refers to the State’s evidence as showing that
       he dropped the plastic bag. We disagree with defendant’s characterization of the facts of this
       case because Officer Guzman clearly testified that defendant threw the bag, as opposed to
       dropping it, and that defendant only complied with his orders after throwing the bag and
       shutting the door. Officer Guzman testified, during the State’s direct examination, as follows:
                    “Q. What did defendant do?
                    A. The defendant was observed in the rear bedroom of the location. He was
                instructed to show his hands and to step towards myself.
                    Q. Did he do that?
                    A. Yes. He did that after throwing an item and closing the door to the location.”
                (Emphasis added.)



                                                   -7-
¶ 30       We find this distinction important because dropping a bag in response to a police
       instruction is much different than what defendant did here, which was to wait to comply with a
       police instruction until after he threw a bag into a room and shut the door. The act of dropping
       is more of a passive action while the act of throwing is an affirmative move to distance an
       object from oneself. Applied to the facts here, it gives rise to the inference that defendant
       attempted to distance himself from the bag containing the cannabis by throwing it into a room
       and shutting the door to that room. Accordingly, we hold that State presented sufficient
       evidence to sustain defendant’s conviction for possession of cannabis.

¶ 31                                 Ineffective Assistance of Counsel
¶ 32       Defendant next argues he was deprived of the effective assistance of counsel because his
       counsel failed to file a motion to suppress the cannabis the police seized because the police did
       not have probable cause to search the plastic bag containing the cannabis, he did not abandon
       the bag because he acted in response to a directive from Officer Guzman, and because the
       cannabis was not in plain view. In response, the State argues that a motion to suppress would
       have been futile because the police had probable cause to search the bag containing cannabis
       and because defendant abandoned the bag.
¶ 33       A criminal defendant’s right to the effective assistance of counsel is a constitutional right
       reviewed pursuant to the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984),
       as adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). People v.
       Domagala, 2013 IL 113688, ¶ 36. To demonstrate ineffective assistance of counsel, a
       defendant must show that his counsel’s performance was deficient and that he was prejudiced
       by the deficient performance of his counsel. Id. Failed strategic decisions do not establish the
       ineffectiveness of counsel. People v. Fuller, 205 Ill. 2d 308, 331 (2002). “In order to establish
       prejudice resulting from failure to file a motion to suppress, a defendant must show a
       reasonable probability that: (1) the motion would have been granted, and (2) the outcome of
       the trial would have been different had the evidence been suppressed.” People v. Patterson,
       217 Ill. 2d 407, 438 (2005). This court, however, has held that where a defendant’s claim of
       ineffective assistance of counsel requires consideration of matters outside of the record, such a
       claim is more appropriately addressed on collateral review. People v. Kunze, 193 Ill. App. 3d
       708, 725-26 (1990). This allows a better record to be developed and the attorney-client
       privilege does not apply. Id. at 726.
¶ 34       After reviewing the record here, we decline to consider defendant’s claim of ineffective
       assistance of trial counsel because the record is devoid of evidence that would allow this court
       to adjudicate whether trial counsel’s decision to not file a motion to suppress was strategic,
       whether the motion would have been granted, or whether Officer Guzman acted lawfully under
       the circumstances. In People v. Durgan, the Fourth District of this court declined to review a
       defendant’s claim of ineffective assistance of counsel based on similar circumstances, i.e., trial
       counsel’s failure to file a motion to suppress evidence from the defendant’s arrest. People v.
       Durgan, 346 Ill. App. 3d 1121, 1141-43 (2004). The Durgan court made note of an important
       distinction between the State’s actions attacking a motion to suppress and its actions at trial. Id.
       at 1142-43. Specifically, the court reasoned:
               “[W]hether defendant suffered prejudice for his trial counsel’s failure to move to
               suppress evidence arising from defendant’s arrest depends on the likelihood of the
               motion’s success. However, the record is devoid of factual findings on the issues

                                                    -8-
                pertinent to defendant’s claim. Because the record contains nothing to review with
                respect to the appropriateness of the police officers’ actions surrounding defendant’s
                arrest, we decline to consider defendant’s argument. In so doing, we note that the
                argument defendant makes is almost never appropriate on direct appeal because absent
                a motion to suppress, it is highly unlikely that the State would garner its resources to
                prove the propriety of the officers’ actions. Thus, in such cases, we cannot be certain
                that the record contains all of the evidence that could have been presented on the issue.”
                Id.
       We agree with the above reasoning and decline to review defendant’s claim of ineffective
       assistance of counsel. Although we decline to review defendant’s claim here, we note that
       defendant may, if he so chooses, raise his claim of ineffective assistance of counsel based on
       his trial counsel’s failure to file a motion to suppress the cannabis at issue here in a proceeding
       under the Post-Conviction Hearing Act. See 725 ILCS 5/122-1 to 122-7 (West 2010).

¶ 35                                      Credit For Time Served
¶ 36      Defendant’s final claim of error is that the circuit court failed to apply a credit for the
       amount of time he served in presentence custody against the fines the court imposed on him.
       Defendant argues that his two days in presentence custody entitle him to $10 of credit to be
       applied against his fines totaling $1,189. 725 ILCS 5/110-14 (West 2012). He asks that this
       court modify the monetary judgment against him to reduce his fines and fees to a total of
       $1,179. The State agrees with defendant. We agree with the parties and modify the monetary
       judgment to reflect fines totaling $1,179.

¶ 37                                       CONCLUSION
¶ 38      The judgment of the circuit court of Cook County is affirmed as modified.

¶ 39      Affirmed as modified.




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