No. 1-14-0051

THIRD DIVISION December 16, 2015 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 13 CR 8583 ) DARRYL MOORE, ) ) The Honorable Defendant-Appellant. ) Nicholas R. Ford, ) Judge Presiding.

______________________________________________________________________________

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

OPINION

¶1 Following a bench trial, defendant Darryl Moore was convicted of two counts of

unlawful possession of ammunition by a felon and one count of possession of a controlled

substance (cocaine). Defendant was subject to Class X sentencing due to his criminal

background, and the trial court sentenced defendant to six years in prison on each count, with

those terms to be served concurrently. On appeal, defendant contends the State failed to prove

his constructive possession of the contraband beyond a reasonable doubt. Because we agree the

State did not establish that defendant had immediate and exclusive control over the area where

the contraband was recovered, we reverse defendant's convictions. 1-14-0051

¶2 BACKGROUND

¶3 The State charged defendant with two counts of unlawful use or possession of a weapon

by a felon for knowingly possessing ammunition in his abode having previously been convicted

of a felony. Defendant also was charged with one count of possession of between 1 and 15 grams

of a controlled substance (cocaine) with intent to deliver.

¶4 At about 8:20 p.m. on April 6, 2013, Chicago police executed a search warrant at 239

West 105th Street in Chicago. A copy of the complaint for the search warrant was not entered

into evidence and is not included in the record on appeal. Two police officers who executed the

search warrant testified for the State. Chicago police officer Dennis Huberts testified that when

the team of officers arrived at 239 West 105th Street, he went to the front of the residence and

saw defendant jump out of a window on the side of the house. The window was six or seven feet

above the ground and was later determined to be a bathroom window. Defendant fled and was

apprehended about six houses away.

¶5 Officer Huberts testified he searched "a portion of the basement" and "some part of the

living room." He recovered bullets from "a desk or a drawer upstairs in the living room" and

recovered .22-caliber ammunition and suspect cocaine from the basement rafters.

¶6 The State entered into evidence photographs of the basement stairwell and the basement.

When asked if he took any photographs of the rafters from which the ammunition and cocaine

were retrieved, Officer Huberts replied, "No, it was kind of hard to get, really dark. It was a

really small spot." On cross-examination, Officer Huberts said he did not see defendant handle

any of the contraband or discard anything while emerging from the window.

¶7 Chicago police officer Jeffrey West testified he searched a bedroom in the residence,

which he believed was one of three bedrooms. Officer West testified the bedroom contained

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men's clothing. He also recovered from a dresser drawer in the bedroom a letter addressed to

defendant at 239 West 105th Street, Chicago, Illinois, 60628.

¶8 On cross-examination, Officer West was asked how many other people were present

when the warrant was executed, and he responded, "I can recall about three offhand," including

one elderly female and "another individual within the residence." Officer West did not recall

seeing other men in the residence and did not see defendant handle the contraband. The letter

taken from the dresser in the bedroom had a postmark of October 31, 2012.

¶9 The parties stipulated that the packet removed from the rafters tested positive for 2.6

grams of cocaine. The parties further stipulated defendant had a prior felony conviction for

possession of a controlled substance with intent to deliver.

¶ 10 At the close of the State's case, the defense moved for a directed finding, asserting no

evidence was presented of defendant's exclusive control of the contraband. The court denied that

portion of the defense motion but granted the motion as to the count of possession of cocaine

with intent to deliver, stating the count would be considered as alleging "straight possession."

¶ 11 The defense presented three witnesses. Tempie Thomas testified she lived at the house

with her granddaughter, Veronica Lindsey, and Lindsey's three children. Thomas testified

defendant was her great-grandson and did not live at her house on April 6, 2013. Thomas sat in

her living room while police searched the house. Defendant was not present.

¶ 12 On cross-examination, Thomas reiterated that defendant did not live with her and "[n]one

of my kids live with me. They all come in and out, but nobody lives with me." Contrary to her

statement on direct examination, Thomas acknowledged defendant was at the house that day and

also said he had received mail there. Thomas denied owning the contraband.

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¶ 13 Carla Brown testified she was visiting defendant at Thomas's residence on the day of the

search; however, she stated defendant did not live there. When the police arrived to execute the

warrant, she was in the bathroom and defendant was outside. While seated in the living room

during the search, Brown saw police recover a box of bullets from under a cabinet.

¶ 14 Shaniece Thomas testified she was defendant's sister and that defendant had lived with

her family in East Chicago, Indiana, since January 2013. Thomas said defendant left at about 8

a.m. on April 6, 2013, to go to their grandmother's house.

¶ 15 At the close of evidence, the trial court made the following findings:

"Finding of guilty to straight possession of a controlled substance. Finding of guilty

of [unlawful use of a weapon] by a felon. My basis of the finding is his exit – by the way,

I believe the officer of what he said completely [sic], the defendant jumping out of the

bathroom window. I believe that.

Secondly, I believe the defendant's witness that that's where he was residing in the

city of Chicago. I believe the piece of mail that he was found, five or six months before

the incident, that shows that he did reside at that address.

And I finally want to indicate that in this particular circumstance I would find

obviously that the elderly woman that testified that did reside there was the property – the

homeowner of that home and that she absolutely had nothing to [do] with this because

these drugs were secreted in her home by the man, I think it could be inferentially argued,

left from the window of that home upon the entry of the police into that home, the man

responsible for the execution of a search warrant on that home, the defendant before me

today."

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¶ 16 At sentencing, the State offered proof of defendant's four prior felony convictions. Based

on his criminal history, defendant was sentenced as a Class X offender to three concurrent terms

of six years in prison.

¶ 17 On appeal, defendant contends his convictions should be reversed because the evidence,

even when viewed in the light most favorable to the State, did not establish he had knowledge of

the presence of the contraband or that he had control over the premises so as to prove his

constructive possession.

¶ 18 STANDARD OF REVIEW

¶ 19 Where, as here, a defendant challenges the sufficiency of the evidence, a criminal

conviction will not be overturned unless the evidence is so improbable or unsatisfactory that it

creates a reasonable doubt as to the defendant's guilt. People v. Givens,

(2010) (citing People v. Collins,

(1985)). In such a case, it is not the function

of this court to retry the defendant; rather, the relevant inquiry is whether, after viewing the

evidence in the light most favorable to the prosecution, any rational trier of fact could have found

the essential elements of the crime beyond a reasonable doubt.

(quoting People v. Davison,

(2009), quoting Jackson v. Virginia,

(1979)).

¶ 20 Before applying that legal standard, this court is compelled to note that both defendant

and the State make arguments in their briefs that are not based on the evidence presented to the

trial court. In assessing the sufficiency of the evidence on appeal, this court is constrained by that

evidence and cannot venture outside the record and consider those arguments. See People v.

Benford,

(1975) ("[i]n an appeal, the purpose of review is to evaluate the

record of the trial court, and, in general, the review will be limited to what appears in the

record").

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¶ 21 ANALYSIS

¶ 22 With that principle in mind, we consider the evidence pertaining to the convictions in this

case. Defendant was convicted of the unlawful use or possession of firearm ammunition by a

felon and also was convicted of the possession of cocaine. Thus, the State was required to prove

beyond a reasonable doubt that defendant knowingly possessed ammunition and previously had

been convicted of a felony. 720 ILCS 5/24-1.1(a) (West 2010). The State also was required to

prove beyond a reasonable doubt that defendant had knowledge of the presence of the cocaine

and that the cocaine was in his immediate possession or immediate control. 720 ILCS

570/401(c)(2) (West 2010).

¶ 23 Knowing possession may be actual or constructive. People v. Smith,

, & 26. Here, because defendant was not seen in the presence of the recovered

contraband, the State was required to show that defendant constructively possessed it. See

People v. Hannah,

, & 28. To establish constructive possession, the

State must prove defendant had knowledge of the contraband and exercised immediate and

exclusive control over the area where the contraband was found. People v. Maldonado,

, & 23. Constructive possession can be demonstrated if the defendant once had

physical control over the contraband with intent to exercise control again, the defendant has not

abandoned the items, and no other person has obtained possession. People v. Adams,

(1994). Constructive possession is typically proved entirely through circumstantial

evidence. Smith,

, & 26.

¶ 24 The State relies on the mail and clothing recovered from the bedroom as proof that

defendant lived at the house and thus had control of the area for purposes of constructive

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possession. The State further argues the knowledge element was met by defendant's flight from

the house as the officers entered.

¶ 25 We first consider whether the State presented sufficient proof of defendant's knowledge

of the contraband. Knowledge is rarely proven by direct evidence, but may be shown by

evidence of the defendant's acts, statements or conduct from which a fact finder may infer the

defendant knew of the presence of the prohibited items. Id.; Maldonado,

, & 40. Here, the police observed defendant leaving the house through a bathroom

window and found mail addressed to defendant in a bedroom, along with male clothing.

However, the contraband was not recovered from that area. Upon searching the house,

ammunition was recovered from inside a desk or cabinet drawer in the living room and

ammunition and drugs were found in a relatively hidden area in the basement rafters.

¶ 26 In finding defendant knowingly possessed those items, the trial court relied on the fact

that defendant was seen fleeing from the residence when police arrived. Evidence of flight is

admissible as tending to demonstrate a defendant's consciousness of guilt. People v. Harris,

(1972). Still, the fact of flight is to be considered "in connection with all other

evidence in a case." People v. Lewis,

(1995). The inference of guilt which

may be drawn from flight depends upon the knowledge of the suspect that the offense has been

committed and that he is or may be suspected.

The trial court here cited defendant's flight in

finding the evidence sufficient to establish his guilt.

¶ 27 However, in addition to knowledge, the State also had to prove that defendant exercised

immediate and exclusive control over the area where the contraband was found. See Maldonado,

, & 23. Even where a defendant is first observed fleeing from a

location where narcotics is found, that fact is not sufficient to prove constructive possession,

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absent any further indicia of knowledge or control. In re K.A.,

(1997). A

defendant's residency at the location where contraband is recovered has been found to constitute

sufficient evidence of control so as to establish constructive possession. Maldonado,

, & 29. " ' "Proof of residency in the form of rent receipts, utility bills and

clothing in closets is relevant to show the defendant lived on the premises and therefore

controlled them." ' " People v. Spencer,

, & 17 (quoting People v.

Cunningham,

(1999), quoting People v. Lawton,

(1993).

¶ 28 The State's evidence, even taken its most favorable light, did not establish that defendant

lived at 239 West 105th Street. The State presented a piece of mail addressed to defendant and

postmarked more than six months earlier. That item was found in a bedroom that also contained

male clothing but that clothing was not specifically linked to defendant. No other evidence

connected defendant to the residence. In contrast, defendant presented three witnesses who

testified he did not live at the house. Moreover, defendant's great-grandmother testified her

young relatives "all come in and out" of the house. Thus, the evidence in this case did not

establish defendant's immediate and exclusive control over the premises.

¶ 29 In People v. Ray,

(1992), which defendant cites in his brief,

the defendants' convictions were reversed in the face of stronger evidence of constructive

possession than was presented here. In Ray, police recovered cocaine, cash and drug

paraphernalia from the apartment living room where the three defendants were sitting. Despite

the defendants' seated positions within a few feet of the contraband, the appellate court reversed

their convictions for cocaine possession, noting the only evidence connecting them to the

apartment was a six-month-old cable TV bill in the name of one defendant.

. Here,

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as in Ray, the single piece of mail addressed to defendant dated six months prior, and male

clothing in a bedroom, were the only items tying defendant to the residence. The contraband here

was not in the presence of defendant.

¶ 30 The State contends the facts here are comparable to those in Spencer,

, which also involved the defendant's flight during the execution of a search warrant. In

Spencer, this court found the evidence at the defendant's bench trial was sufficient to show that

the defendant constructively possessed a firearm and ammunition based on items that established

the defendant's residency in the searched house.

& 18. When police entered the house to

perform the search, the defendant fled and was apprehended in the backyard.

& 3. The

officers recovered a .357-caliber revolver and ammunition from the top of a kitchen cabinet.

& 5. The items recovered from a bedroom included three rounds of .357-caliber ammunition, an

Illinois identification card bearing the defendant's name and listing the searched house as his

residence, a set of keys that operated the house's exterior doors, two photographs of the

defendant, men's clothing, a four-month-old letter from the Cook County probation department

mailed to the defendant at the address of the searched house, and $9,000 in cash.

& 4. After

the ammunition and cash were recovered, the defendant "made a statement to the effect that he

needed to have a gun because of the amount of money that he had."

& 18.

¶ 31 Affirming the defendant's conviction on appeal, this court held in Spencer that proof of

the defendant's residency and his statements to police connected the defendant to the gun

recovered from the kitchen.

This court further noted the defendant's flight from the house as

evidence of his consciousness of guilt.

Viewing all of that evidence in the light most

favorable to the State, this court held that a rational trier of fact could have found the defendant

constructively possessed the revolver and ammunition recovered in the search.

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¶ 32 Several points distinguish Spencer from the case at bar. First, the items recovered in the

house in Spencer were far more comprehensive than the personal effects here. In contrast to the

male clothing and a single piece of correspondence recovered by police in this case, the officers

in Spencer found an identification card showing defendant lived at the subject address, a set of

keys to the residence, and photographs of the defendant.

& 4. Second, some of the

ammunition in Spencer was recovered from the bedroom in which the defendant's personal

effects also were found. Here, police found the contraband in other areas of the house. Third, the

defendant in Spencer admitted his knowledge of a weapon in the house. In this case, defendant

made no such admission. Although the trial court in Spencer noted the defendant's flight from

the house as evidence of his consciousness of guilt, as did the trial court here, the facts

supporting knowledge of the contraband and control over the area where the contraband was

found were far stronger in Spencer than in the case before us.

¶ 33 Even when viewed in the light most favorable to the prosecution, the evidence presented

to the trial court does not support a finding that defendant committed the essential elements of

the crime beyond a reasonable doubt. Although defendant was seeing fleeing from the 239 West

105th Street when police arrived, the State did not prove that defendant exercised immediate

control over the area where the illegal items were found.

¶ 34 CONCLUSION

¶ 35 Accordingly, defendant's convictions for unlawful possession of ammunition by a felon

and possession of a controlled substance (cocaine) are reversed. Given that disposition, we need

not address defendant's contention on appeal relating to the correction of the mittimus.

¶ 36 Reversed.

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