THIRD DIVISION January 15, 2014

No. 1-12-0932

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 15831 ) EARNEST BRANCH, ) The Honorable ) William Hooks, Defendant-Appellant. ) Judge Presiding.

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

OPINION

¶1 A jury convicted defendant Earnest Branch of possession of a controlled substance with

intent to deliver under section 401(c)(1) of the Illinois Controlled Substances Act (720 ILCS

570/401(c)(1) (West 2010)). He was sentenced to six years in prison. On appeal, Branch

contends that the State failed to prove that he intended to deliver the narcotics found in his

possession. We affirm. The evidence sufficiently supports Branch's conviction for possession of

a controlled substance with intent to deliver.

¶2 Background

¶3 Branch was charged by information with possession of a controlled substance with intent

to deliver in that he "unlawfully and knowingly possessed with intent to deliver *** 1 gram or

more but less than 15 grams of a substance containing a certain controlled substance, to wit:

heroin." 1-12-0932

¶4 At trial, Chicago police officer Kathleen McCann testified that at about 12:30 p.m. on

August 11, 2010, she and five other officers were working undercover surveillance near the

intersection of Augusta Boulevard and Long Avenue. As she was stopped in traffic heading

westbound, she saw Branch walking eastbound on the south side of the street. McCann observed

Branch cut into the backyard of a vacant residence, reach down and remove an item and then

walk back toward the corner of Augusta and Long Avenue. She pulled her car over and

observed Branch make a suspected hand-to-hand narcotics transaction with an unidentified

individual, exchanging the item for an unknown amount of money. She observed Branch engage

in "at least eight" transactions. McCann then radioed Officer Myron Kuykendall and Officer

Reginald Dukes, who were working as enforcement officers.

¶5 Officer Edward Daniels, who was also working as a surveillance officer, testified that he

was parked 10 to 15 feet from Branch when he observed Branch engage in 8 suspected narcotics

transactions over a period of 45 minutes. He was not able to see the amount of money that was

being exchanged during each transaction or the item that was being tendered. Branch began

walking southbound after the transactions, and Daniels, through his rear-view mirror, saw

Branch give an unknown amount of cash to a man on a bicycle before going westbound down an

alley.

¶6 Officer Kuykendall testified that he and Officer Dukes received radio communication

regarding Branch's suspected narcotics transactions, and drove westbound into the alley between

Augusta Boulevard and Iowa Street. Kuykendall exited the car, and told Branch and the man on

the bicycle to stop. Branch looked in Kuykendall's direction and dropped an object from his

hand. Kuykendall recovered the item and arrested him. The man on the bicycle fled, and was

never captured. Kuykendall recovered a clear plastic bag containing 11 capsules of suspected

heroin and $18 in cash. -2- 1-12-0932

¶7 Forensic chemist Elaine Harris tested 7 of the 11 capsules, and they weighed 1.1 grams

and tested positive for heroin. She estimated all 11 capsules weighed 1.7 grams.

¶8 On appeal, Branch contends that the State failed to prove the element of intent to deliver

beyond a reasonable doubt.

¶9 Analysis

¶ 10 When a defendant challenges the sufficiency of the evidence to sustain his or her

conviction, the relevant question on review is whether, after considering the evidence in the light

most favorable to the State, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. People v. Beauchamp,

(2011). The

trier of fact determines the credibility of witnesses, the weight to be given to their testimony, and

the reasonable inferences to be drawn from the evidence. People v. Howery,

(1997). A conviction only will be overturned where the evidence is so improbable,

unsatisfactory, or inconclusive that it creates a reasonable doubt of defendant's guilt.

Beauchamp,

.

¶ 11 To prove defendant guilty of the offense of possession of a controlled substance with

intent to deliver, the State must prove the defendant (1) had knowledge of the presence of the

narcotics; (2) had possession or control of the narcotics; and (3) intended to deliver the narcotics.

People v. Robinson,

(1995); 720 ILCS 570/402(c) (West 2010). The trier of

fact may rely on reasonable inferences to determine knowledge and possession. People v. Smith,

(2000). The element of “intent to deliver” is usually proved by

circumstantial evidence because knowledge and possession of drugs are rarely subject to direct

proof. People v. Cruz,

(1984) (Possession "is an inherently

surreptitious affair, and common sense must illuminate the dark.") Several factors have been

considered by Illinois courts as probative of intent, including the manner in which the drugs are -3- 1-12-0932

packaged; the possession of weapons; and the possession of large amounts of cash. Robinson,

.

¶ 12 Here, the evidence was sufficient to establish that Branch intended to deliver the heroin

that police found in his possession. The State presented eyewitness testimony from Officer

McCann that Branch went to a vacant lot and secured an item from the back of a house and

delivered the item in exchange for cash. Officer Daniels could not identify the items that were

tendered or the amount of cash Branch received; however, he witnessed Branch give a man cash

after the transactions and Officer Kuykendall subsequently found Branch in possession of 11

individually packaged capsules of heroin. A trier of fact could reasonably infer that the eight

transactions that officers saw Branch engage in were heroin sales.

¶ 13 Branch contends that the absence of factors probative of intent to deliver articulated in

Robinson,

(i.e., possession of amounts of narcotics inconsistent with personal

use, evidence as to the drug purity, weapons, large amounts of cash, distribution-related

equipment) indicates that Branch did not intend to deliver the heroin found in his possession.

We disagree.

¶ 14 In Robinson, the police arrested the defendant based on suspected drug activity in a house

and the State presented no eyewitness testimony that the defendant had been observed engaging

in alleged drug transactions. Robinson,

. Accordingly, the Robinson court

examined other circumstantial factors indicating intent to deliver. Unlike in Robinson, the State

presented eyewitness testimony from officers McCann and Daniels that over a period of 45

minutes, eight times, Branch was approached by individuals with whom he had a short

conversation, before engaging in a transactions with cash. Branch multiple times went to get

something from close to the ground on the side of a nearby vacant house and then returned to the

corner. The officers saw him engage in eight suspected heroin transactions, and hand over the -4- 1-12-0932

proceeds of the transactions to a man on a bicycle before being found in possession of heroin.

Given these circumstances, the absence of Robinson factors is not dispositive. See, e.g., People

v. Bush,

(2005) (evidence sufficient where defendant accepted money from

two individuals and handed them unknown items in exchange); People v. Bell,

(2003) (evidence sufficient where defendant accepted money from several individuals

and handed them small items). A reasonable trier of fact could have found the element of intent

to deliver based on the State's evidence.

¶ 15 Alternatively, Branch argues that the drugs found in his possession on arrest were

separate from the drugs that he was selling and were intended for personal use. He attempts to

distinguish Bush by reasoning that the defendant in that case was found to have intent to deliver

because she "resumed her post behind the fence at the conclusion of both transactions." Bush,

. Conversely, Branch argues he had handed his proceeds to the man on the

bicycle and was done for the day. We reject this argument. The jury could have reasonably

found that the drugs Branch possessed on arrest were not a separate supply, and that he intended

to deliver the remaining capsules of heroin. Viewing all the evidence in the light most favorable

to the State, as we must, coupled with the reasonable inferences drawn from the evidence, we

cannot say that no rational trier of fact could have found that Branch intended to deliver the

drugs in his possession.

¶ 16 For the foregoing reasons, we affirm the judgment of the Circuit court of Cook County.

¶ 17 Affirmed.

-5-