THIRD DIVISION August 3, 2016

No. 1-14-0619

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County, Illinois. ) v. ) No. 12 CR 1582002 ) TERRY TATES, ) Honorable ) Thomas J. Byrne, Defendant-Appellant. ) Judge Presiding.

OPINION

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

¶1 On July 26, 2012, Terry Tates 1 was arrested after approximately 10 officers executed a

search warrant at 505 West 62nd Street in Chicago, Illinois. Tates was jointly charged with

Walter Tates (Walter), 2 and Robert Green, who were also arrested during the execution of the

warrant. At a joint jury trial with Green, 3 Tates was convicted of possession with intent to deliver

heroin, cocaine and cannabis and simple possession of less than five grams of

methamphetamines. He was acquitted of an armed violence charge. The jury acquitted Green of

all charges. Tates was sentenced to 12 years in prison on the heroin and cocaine charges, 5 years

on the cannabis charge, and 4 years on the methamphetamine charge, all to run concurrently.

1 The defendant’s name is spelled both with and without an “s” in the record. We accept his counsel’s suggestions to use “Tates” as that is how defendant identified himself at a pretrial hearing. 2 Based on the defendants’ similar last names, it is reasonable to infer a familial relationship between Tates and Walter. At trial, one of the witnesses referred to Tates as Walter’s brother; at oral argument, Tates’ counsel represented that Walter is Tates’ uncle. However, there is no competent evidence in the record that indicates the existence or nature of the relationship. 3 Walter elected a bench trial, which was conducted simultaneously with Green and Tates’ jury trial. No. 1-14-0619

¶2 On appeal, among other arguments, Tates contends that the State failed to meet its burden

to prove guilt beyond a reasonable doubt because the evidence of Tates’ possession of the

narcotics located at the premises was insufficient. We agree and, therefore, reverse.

¶3 BACKGROUND

¶4 Around 4:45 p.m. on July 26, 2012, Officer Raymond Wilke and approximately 10 other

officers approached a single family residence at 505 West 62nd Street to execute a search

warrant. The warrant named Walter as the subject and did not reference either Tates or Green.

Police announced their presence outside the residence by knocking on the front door and verbally

identifying themselves. After receiving no response for several seconds, the officers then forced

entry into the residence using a battering ram.

¶5 Officers spread both upstairs and into the living room, dining room, and kitchen, moving

systematically to secure the building and locate any residents inside. Wilke, as the search lead,

moved into the living room and then the dining room, where he saw Tates and Walter near the

dining room table that held clumps of suspect narcotics and packaging materials. Wilke testified

that (i) Walter was sitting at the dining room table, (ii) both Walter and Tates were sitting at the

table, and (iii) all three individuals were in “the dining table area.” The arrest report did not state

that Tates was sitting at the dining room table upon entry. According to Wilke, all three

individuals immediately ran from the room. There is no evidence that when police entered, Tates

was touching or otherwise handling any of the materials on or around the dining room table.

Tates and Walter were detained by perimeter officers outside the building, while Green was

detained in the kitchen area; all of them were eventually secured in the kitchen while the police

searched the residence.

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¶6 It is disputed whether Green was present in the dining room at the time of the officers’

entry. Wilke was unable to identify Green at trial and had difficulty recalling where Green was

when police entered. Green’s own testimony placed him and Tates outside the residence during

the execution of the warrant.

¶7 In the residence, as noted, clumps of suspect cannabis were openly visible on the dining

room table, along with bagged suspect cannabis, and paraphernalia for weighing and cutting

narcotics. Plastic bags containing larger “ounce bags” of suspect cannabis were found inside

various boxes, bags, and express mail containers on the floor of the dining room, along with

packaging and mailing materials. A loaded Taurus .40 caliber handgun and a .9 millimeter

magazine were found inside a closed credenza in the dining room. Although the magazine was

not the appropriate ammunition for the loaded handgun found in the credenza, officers did not

find another gun using .9 millimeter ammunition.

¶8 Other locations in the house also yielded various quantities of suspect drugs, both in plain

view and hidden. In the kitchen, officers recovered heroin from the refrigerator, baking soda, and

a strainer containing white residue later found to be drug residue from the kitchen sink, and

suspect crack cocaine, heroin, and methamphetamines from a compartment in the kitchen water

cooler. Officer Donnell Crenshaw, the officer responsible for inventorying the recovered

evidence, testified that approximately 700 bags of cannabis in various amounts were recovered.

Several of the baggies of suspect cannabis were marked with a Nike-style swoosh symbol, which

officers later explained connoted specific brands of cannabis. The parties stipulated that the

drugs recovered consisted of: 227.3 grams of heroin, 139 grams of cocaine, 2070.3 grams of

cannabis, and five-tenths of a gram of methamphetamine.

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¶9 The officers did not call for an evidence technician, and no fingerprints or DNA evidence

were collected. No indicia of residency was found linking Tates to the location. Both Green and

Tates gave other addresses as their home address, and no evidence in the record contradicts this

information.

¶ 10 In statements made to arresting officers at the Area 2 police station, Walter admitted

ownership of all of the narcotics and related paraphernalia. His statements, excluding references

to gang activity, were permitted to be used during cross-examination of Wilke. Walter told

police:

“I didn’t know you guys were coming ***. This is what happens when you’re in

the game. You guys do your thing, and we do ours! I don’t hate you. I make mine sellin’.

Well, you know I got caught. You got me. You [got] your big bust. I got responsibilities

too. I sell that s*** to take care of my kids and my momma.

I put the s*** in heat sealed bags and use Express Mail bags so it looks like a legit

business. I still can’t believe it, you got me just coming in. I’m usually in and out and you

had perfect timing. I just got that s*** in [sic] could not be better, so you got your little

bust. I’m in and out so fast that I never get caught in my sister’s house.”

When asked during trial, Wilke did not know who Walter was referring to when he used the

word “we.” Walter never referenced Tates or Green in his statement.

¶ 11 Green elected to testify. In the early afternoon of July 26, Green met Tates, a childhood

friend, by chance in a fast food restaurant. After getting their food, Tates asked for a ride to a

location a few blocks away. Green denied that he knew the owner of the residence, stating that

Tates did not indicate who owned the residence. Green had never been to 505 West 62nd Street

before the day of the arrest.

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¶ 12 When Tates and Green arrived, they took their food to the side yard, intending to sit at a

picnic table. Before they could sit down, several police officers, with weapons drawn, entered the

yard and ordered Green and Tates to lie on the ground. The two were eventually brought inside

of the residence and searched. Approximately 10 minutes later, Walter was brought into the

kitchen through the front door, where the three of them waited for about 2 hours before being

taken out of the house. Green denied knowing Walter before the incident and claimed he had no

knowledge of the narcotics found in the residence.

¶ 13 No weapons, drugs, or money were found on Tates’ person, and officers noted in the

arrest report that he was considered unarmed. Wilke did not see either Green or Tates touch the

weapon or ammunition found in the credenza.

¶ 14 After being advised that it could consider Green’s testimony as evidence in Tates’ case,

the jury found Tates guilty of the narcotics offenses, but acquitted him of armed violence. As

noted, Green was acquitted of all charges.

¶ 15 ANALYSIS

¶ 16 Tates argues that the State failed to prove that he possessed any of the drugs recovered

and thus failed to meet its burden of guilt beyond a reasonable doubt. Tates suggests that because

the question is purely legal and relies on whether settled facts meet a reasonable doubt standard,

rather than the credibility of the witnesses, our review should be de novo. See In re Ryan B.,

(2004) (“[b]ecause respondent’s challenge to the sufficiency of evidence against

him does not question the credibility of the witnesses, but instead questions whether the

uncontested facts were sufficient *** our review is de novo”); People v. Smith,

(2000) (“Because the facts are not in dispute, defendant’s guilt is a question of law, which

we review de novo.”). The State advocates a manifest weight of the evidence standard, arguing

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that it is not the place of the reviewing court to retry the defendant when considering the

sufficiency of the evidence. People v. Wittenmyer,

(1992); People v. Boclair,

(1989). We agree with the State.

¶ 17 Where the evidence “produces conflicting inferences, the trier of fact resolves the

conflict.” People v. Pryor,

(2007) (citing People v. McDonald,

(1995)). A question regarding the sufficiency of the evidence based on the factual

findings of a jury, presents a question of fact and not law. Pryor,

; see

People v. Brown,

(“Knowledge and possession are factual issues, and the

trier of fact’s findings on these questions will not be disturbed unless the evidence is so

unbelievable, improbable, or palpably contrary to the verdict that it creates a reasonable doubt of

the defendant’s guilt.” (citing People v. Luckett,

(1995))). The appropriate

question 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.” (Emphasis in original.) Jackson v. Virginia,

(1979); People

v. Brown,

, ¶ 48.

¶ 18 It is the reviewing court’s duty to examine the evidence while giving due consideration to

the fact that the jury and trial court heard the witnesses. People v. Cunningham,

(2004) (citing People v. Smith,

(1999)). A reviewing court will not

reverse a conviction unless the evidence is so contrary to the verdict, or so unreasonable,

improbable, or unsatisfactory that it justifies a reasonable doubt regarding defendant’s guilt.

People v. Harmon,

, ¶48 (citing People v. Evans,

(2004)). But if the court is of the opinion that the evidence is insufficient, reversal is required.

People v. Scott,

(2006) (citing Smith,

).

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¶ 19 To support a conviction for possession of a controlled substance, the State must prove

that the defendant had knowledge of the presence of the narcotics and that the narcotics were in

the defendant’s immediate and exclusive control. Scott,

; People v. Ray,

(1992). Possession can be either actual or constructive. People v.

Adams,

(1993). No evidence was adduced at trial that Tates was

actually in possession of any of the narcotics recovered, and, therefore, we confine our analysis

to the sufficiency of the evidence to demonstrate Tates’ constructive possession.

¶ 20 Constructive possession does not require actual present dominion over the substance, but

can be inferred through an “intent and capability to maintain control and dominion.” People v.

Frieberg,

(1992). Control of the location where the contraband is found is

not essential to support a conviction based on constructive possession. People v. Minniweather,

(1998) (citing People v. Adams,

(1994)). A

defendant’s lack of control of the premises will not preclude a finding of guilt if the

circumstantial evidence supports an inference that the defendant intended to control the

contraband inside. As we stated in Minniweather:

“While it is well settled that ‘where narcotics are found on premises under defendant’s

control, it may be inferred that the defendant had both knowledge and control of the

narcotics’ [citation], the inverse inference does not follow. Where narcotics are found on

premises that are not under the defendant’s control, defendant’s control of the premises is

not dispositive. Rather, it is defendant’s relationship to the contraband that must be

examined.”(Emphases in original.)

.

See also Adams,

(defendant’s lack of control of premises—an airplane

restroom—did not preclude a finding of guilt where defendants’ suspicious movements in and

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out of the restroom where narcotics were found supported an inference of constructive

possession). Where there is no evidence that the defendant controls the premises, proof of mere

presence, even combined with defendant’s knowledge of the presence of narcotics, will not

support a finding of constructive possession unless there is other circumstantial evidence of

defendant’s control over the contraband. Brown,

; Scott,

; see also People v. Strong,

(2000) (evidence that defendant fell

asleep beside a container containing cocaine not sufficient to establish constructive possession

when he was but one guest of several at the residence and engaged in no activity that suggested

control over the drugs).

¶ 21 Our decision in Brown illustrates the quantum of evidence that is both sufficient and

insufficient to prove constructive possession. The defendant in Brown was arrested after police

entered by force an apartment where the defendant was present, but did not live. Defendant had

concealed himself in a hidden crawl space in the apartment that was inaccessible either by stairs

or by a ladder. He had also used a blanket obtained from the apartment to cover the entry to the

crawl space. In close proximity to defendant in the crawl space when he was arrested were

brown plastic shopping bags of narcotics and a cache of weapons. As to the narcotics and

weapons in the crawl space, the court found that the circumstantial evidence of defendant’s

knowledge of the existence of the crawl space, his ability to access it and disguise the opening as

well as his proximity to the contraband supported the inference that defendant “acted to conceal

the contraband along with himself and that he therefore had constructive possession” of the

contraband. Brown,

.

¶ 22 In addition to the contraband in the crawl space in Brown, police located other narcotics

in a combination safe in the apartment’s kitchen. Defendant was never seen by the officers in the

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vicinity of the safe, and no evidence suggested that defendant possessed the combination to the

safe or exercised control over its contents. We found this evidence insufficient to establish

defendant’s constructive possession of the safe’s contents and thus reversed his convictions for

possession of the narcotics found there.

.

¶ 23 Also apposite is our decision in Adams where the defendant was found guilty of

possession of a controlled substance after he was found standing in an apartment bathroom

during a police raid. Adams,

. The defendant immediately complied with

police instructions to lie down on the ground. After searching the bathroom, police found a gun

and cash in plain view in the bathtub. They also located several packets of what was later

identified as cocaine in a bucket of water placed in a cabinet below the sink and several packets

of cocaine in the freezer of the refrigerator. We found this evidence insufficient to establish

defendant’s constructive possession of the cocaine in either the bathroom or the refrigerator, as

there was no evidence linking defendant—a guest of the house—to the narcotics.

.

No evidence showed that defendant had been inside of the cabinet prior to or during police entry,

and defendant’s mere presence in the bathroom was not deemed sufficient to sustain his

convictions.

¶ 24 With these principles in mind, we address Tates’ challenges to the sufficiency of the

evidence in this case. First, there is no evidence that Tates exercised control over the premises

such that a trier of fact could reasonably infer his knowledge and control over the narcotics

located there. Minniweather,

. No evidence connected Tates to 505 West

62nd Street and other than the fact that we could presume he was familiar with the location based

on Green’s testimony that Tates asked him for a ride there, no evidence suggests that Tates

exercised any modicum of control over the premises. Many of our decisions explain that some

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tangible form of ownership must be proved in order to support a presumption of defendant’s

control over the location where drugs are found, even if the defendant is found on the premises.

Compare People v. Cunningham,

(1999) (evidence of residency, and thus

control of the premises, deemed sufficient where defendant had keys to the house, listed the

address on his driver’s license, and lived and received mail at the residence), with People v. Blue,

(2003) (evidence of control insufficient where there were no bills, rent

receipts, pieces of clothing, or mail addressed to the defendant at the location); People v.

Maldonado,

(evidence of control insufficient where delivery

receipt, one piece of junk mail, and one unidentifiable piece of mail had name of defendant and

wife as the addressee at the location). Given the lack of any evidence linking Tates to the

residence, the State was required to adduce circumstantial evidence of Tates’ exercise of control

over the contraband located there.

¶ 25 Initially, we note that Tates’ reliance on Walter’s statement, standing alone, as evidence

of Tates’ lack of control over the narcotics is misplaced. Exclusive control can include joint

possession—if two or more people share immediate and exclusive control, or share the intention

and power to exercise control, they each maintain possession. People v. Hill,

(1988); People v. Scott,

(1987). Consequently, it was

possible for both Tates and Walter to maintain possession of the narcotics, even if Walter openly

claimed ownership.

¶ 26 But even though Walter’s statement does not necessarily exonerate Tates, it does bear on

the issue and other considerations warrant a finding that the State did not prove Tates’

constructive possession of the narcotics. Whether Tates was standing in the dining room or

sitting at the dining room table when police executed the warrant, no evidence establishes that

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police observed him touching or otherwise handling the cannabis or other materials on and

around the dining room table. Wilke did not find any drugs or weapons on Tates’ person, and no

forensic evidence, such as fingerprints, linked Tates to the location or to the narcotics found

there. Walter’s statement, with its single reference to “we” (“You guys do your thing, and we do

ours”) is likewise insufficient to connect Tates to the drugs.

¶ 27 At oral argument, the State emphasized the volume of cannabis and related packaging

materials in the dining room as circumstantial evidence of Tates’ involvement in the presumed

distribution operation. But no case has turned on the volume of drugs or drug paraphernalia

present as indicative of a defendant’s constructive possession where no other evidence connects

the defendant to the contraband. Thus, while we could find, based on the quantity of cannabis

and packaging materials present in the dining room, that Tates must have been aware of Walter’s

drug operation, nothing else supports the inference that Tates was constructively in possession of

the drugs.

¶ 28 Thus, at most, the State established Tates’ presence in the residence and his awareness of

the presence of cannabis in the dining room. This is insufficient to prove his constructive

possession of that contraband. And as in Brown, nothing in the record establishes any connection

whatsoever between Tates and the heroin, cocaine, and methamphetamines recovered from other

rooms in the apartment.

¶ 29 While evidence of constructive possession is often wholly circumstantial (Minniweather,

(citing People v. Newman,

(1991))), the scant

additional circumstantial evidence argued by the State does not change the result. The fact that

Tates attempted to flee when police used a battering ram to break down the front door, while

probative, cannot, standing alone, satisfy the State’s burden to prove his constructive possession

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of the narcotics beyond a reasonable doubt. This is particularly true given the lack of any

evidence connecting him to the narcotics other than his presence in the dining room. Although

evidence of flight may be relevant to infer a defendant’s consciousness of guilt (People v.

Fleming,

(quoting People v. Foster,

(1990))), mere presence at the scene, even coupled with flight, is not enough to satisfy the State’s

burden of proof. People v. Jones,

(1996).

¶ 30 The State also argues that Tates’ knowledge of the presence of narcotics may be inferred

based on his failure to answer the door when the police announced themselves. But since there is

no evidence that Tates resided at the address, we find it unremarkable that he would refrain from

answering the door.

¶ 31 In sum, no evidence in the record before us satisfies the State’s burden to show Tates’

immediate and exclusive control over the narcotics. The evidence and reasonable inferences that

can be drawn therefrom do not support the jury’s verdicts on the narcotics charges as there is no

evidence—even circumstantial—that Tates was aware of the narcotics hidden in the water cooler

and refrigerator and no evidence, other than (i) Tates’ presence in the dining room where

cannabis was in plain view and (ii) his flight from police, to demonstrate his constructive

possession of that contraband. Because the evidence is insufficient to satisfy the State’s burden

of proof beyond a reasonable doubt, we reverse Tates’ conviction outright. Brown,

.

¶ 32 Reversed.

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