FIRST DIVISION June 8, 2015

No. 1-13-0991

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 11 CR 3038 ) JAMES EVANS, ) Honorable ) Lawrence Edward Flood, Defendant-Appellant. ) Judge Presiding.

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, No. 1-13-0991

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

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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:

"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?

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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

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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 Office

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. ***

1 Officer Guzman did not define DMA.

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[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 is 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,

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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

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

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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.

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¶ 20 ANALYSIS

¶ 21 Before this court, defendant challenges the sufficiency of the evidence used against him,

argues that he received the ineffective assistance of trial counsel, and contends that he is entitled

to 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,

(1970); People v. Carpenter,

(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,

, 329-30

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(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,

. "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,

(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,

(1989). Therefore, we will not substitute our judgment

for that of the trier of fact when considering such matters. People v. Brown,

,

¶ 48. The findings of the trier of fact are given great weight because it saw and heard the

witnesses. People v. Wheeler,

(2007). Although the trier of fact is

accorded great deference, its decision is not binding or conclusive.

. 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,

(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,

(2010). Actual possession, however, is not shown by mere proximity to the

illicit material. Schmalz,

. "Actual possession is the exercise by the defendant

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of 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,

. "Where

possession has been shown, an inference of guilty knowledge can be drawn from the surrounding

facts and circumstances." Schmalz,

. 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,

(1992). It is the

role of the trier of fact to determine the factual question of knowledge and possession or control.

Schmalz,

. Circumstantial evidence may be used to satisfy the elements of

possession. People v. Eghan,

(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,

. 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,

. Accordingly, the State in this case showed that defendant had possession of the

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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,

. 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.)

¶ 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

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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,

(1984), as

adopted by our supreme court in People v. Albanese,

(1984). People v.

Domagala,

. 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.

Failed strategic decisions do not establish the

ineffectiveness of counsel. People v. Fuller,

(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

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trial would have been different had the evidence been suppressed." People v. Patterson,

(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,

(1990). This allows a better record to be developed and the attorney-client privilege does not

apply.

.

¶ 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,

(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.

. 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

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

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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."

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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