No. 2-14-0566 Opinion filed August 17, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 13-CF-989 ) LADELL WALKER, ) Honorable ) Susan Clancy Boles, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices Burke and Hudson concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial in the circuit court of Kane County, defendant, Ladell Walker, was

found guilty of two counts of unlawful delivery of a controlled substance within 1000 feet of a

public park (720 ILCS 570/407(b)(2) (West 2012)) and two counts of unlawful delivery of a

controlled substance within 1000 feet of a school (id.). He was sentenced to concurrent 12-year

prison terms. The convictions stemmed from sales of cocaine to an undercover police officer

that took place on October 9, October 12, October 23, and November 5, 2012. The sole question

raised on appeal is whether the State proved beyond a reasonable doubt that defendant was guilty

of the November 5, 2012, offense. We affirm.

¶2 Marcy Kogut, a detective assigned to the Elgin police department’s drug unit, was the

State’s principal witness. Her duties included undercover investigations. Using a false identity,

she posed as a drug buyer and disseminated a telephone number at which dealers could reach

her. On October 9, 2012, at 11:42 a.m., she received a telephone call from a number ending with

the digits 4617. The caller identified himself as “Face.” Kogut indicated that she was busy and

would call back later. At 5:37 p.m., Kogut placed a call to the 4617 number. She recognized the

voice of the person who answered as the man who had called from that number earlier. Kogut

indicated that she was interested in getting some “stuff” later on. Kogut called the 4617 number

again at 7:27 p.m., but no one answered. At 8:13 p.m. she received a call from the 4617 number.

She again recognized the caller’s voice as that of the man who called himself “Face.” She asked

if she could meet him to buy $50 worth of crack cocaine. He told her to meet him at a

McDonald’s restaurant. She responded that she would meet him there if she could find

somebody to watch her children.

¶3 At 8:27 p.m., Kogut sent a text message to the 4617 number to indicate that she was able

to meet with Face. Another detective, Adam Arnold, provided her with $50 with which to

purchase the cocaine. Kogut then drove to the McDonald’s and texted the 4617 number to notify

Face that she had arrived. At 9:18 p.m. she received a call from the 4617 number. When she

answered, she recognized Face’s voice. Face instructed Kogut to drive to a park. Face called her

two more times while she was en route and once more after she arrived in the vicinity of the

park. Face told Kogut that someone should be approaching her. A woman whom Kogut

recognized to be Carolyn Williams approached Kogut’s vehicle. Kogut gave Williams $50, and

Williams handed Kogut a clear plastic bag containing a white rock-like substance. The transfer

occurred 36 feet from the entrance to Cornerstone Park in Elgin.

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¶4 After obtaining court authorization to record calls that she made to or received from the

4617 number, Kogut placed a call to that number on October 11, 2012, at 4:38 p.m. Nobody

answered. She tried again at 5:02 p.m. but, again, did not speak with anybody. A minute later,

however, Kogut received a call from the 4617 number. She recognized the caller, by voice, as

Face. She asked him if she could buy more drugs from him. He agreed and told her to meet him

at McDonald’s. Kogut met with Arnold, who supplied money to purchase the drugs. Arnold

also showed Kogut a photograph of defendant. Kogut proceeded to the McDonald’s. She was

equipped with an audio-recording device with which to record the transaction. When Kogut

arrived at the McDonald’s, she called the 4617 number. Face answered. He instructed Kogut to

drive to a Wendy’s restaurant. At 6:07 p.m., while Kogut was en route, Face called again from

the 4617 number. Kogut told Face that she had just pulled into the Wendy’s parking lot.

Defendant approached her vehicle and got into the passenger’s seat. He instructed her to proceed

to a location just west of the site of the October 9, 2012, transaction. When they arrived, she

gave defendant $50 that she had received from Arnold. She told defendant that she did not feel

comfortable accompanying him to obtain the drugs. Defendant made a telephone call. She

heard defendant say, “J.J., come here.” Defendant then exited the vehicle and walked away. A

man whom Kogut recognized as John Johnson approached the vehicle and handed her a clear

plastic bag containing a “white powder rock-like substance.” Johnson asked Kogut for money.

Kogut responded that she had already paid defendant. She then called the 4617 number.

Defendant answered and confirmed that Kogut had paid for the drugs. At that point Johnson left,

and Kogut drove away. At 6:24 p.m., Kogut received a call from defendant from the 4617

number. He had called to make sure that Kogut had received the drugs. The location where

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Johnson delivered the “white powder rock-like substance” to Kogut was 182 feet from

Cornerstone Park.

¶5 On October 19, 2012, Kogut placed a call to the 4617 number. She did not speak with

anybody. At 5:01 p.m. she received a call from the 4617 number. She did not recognize the

caller’s voice. Kogut testified that she “spoke with an individual that was not the defendant” and

then hung up. About 14 minutes later, she received another call from the 4617 number, and she

recognized defendant’s voice on the telephone. Kogut asked defendant who had made the

previous call. Defendant said that he had made the call and that he did not recognize Kogut’s

voice. Defendant said that it sounded like Kogut was speaking Spanish. Defendant then asked

Kogut if she wanted to buy Xanax pills. Kogut responded that she would buy three pills along

with $50 worth of cocaine. However, defendant did not have any cocaine to sell, so no

transaction was arranged at that time.

¶6 Kogut spoke with defendant again by telephone on October 22, 2012. She indicated that

she would call him again the next day. She called the 4617 number at 5:59 p.m. on October 23,

2012. Defendant answered, and Kogut asked if she could buy more crack cocaine. Defendant

told her to drive to a specified location and to call again. Kogut obtained $50 from Arnold.

Outfitted with concealed audio-recording equipment, Kogut proceeded to the specified location.

Defendant called Kogut again from the 4617 number at 6:18 p.m. He directed her to a new

location—an apartment complex on Illinois Avenue. Defendant called again at 6:34 p.m. and

told Kogut to come into the apartment complex. Kogut responded that she was not comfortable

doing so. The conversation ended, and Kogut drove away. A few minutes later, defendant

called again and told Kogut that she could remain outside the apartment complex. Kogut

returned to the apartment complex and received two more calls from defendant from the 4617

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number. In the second call, he asked her if she saw a woman walking toward her vehicle. Kogut

observed a woman in a white T-shirt and glasses. Kogut subsequently identified that woman as

Silvia Magallanes. Kogut handed $50 to Magallanes, and Magallanes gave her a clear plastic

bag containing a “white rock-like powder substance.” The transaction took place 486 feet from

Ellis Middle School.

¶7 Kogut testified about exchanges of text messages on October 29, 2012, and November 5,

2012. Prior to that testimony—and in accordance with a ruling on a motion in limine by

defendant—the trial court instructed the jury as follows:

“Evidence that a witness had a conversation through text messaging is being

offered at trial and it is not being offered for the truth of the matter asserted but to explain

the actions taken by the witness and may be considered by you only for that limited

purpose.”

Kogut testified that, on October 29, 2012, she received a text message from the 4617 number,

asking, “ ‘What up[?]’ ” Kogut replied with a text message asking, “ ‘Are you going to be

around tomorrow at four?’ ” She received an affirmative response and concluded the exchange

of text messages by indicating that she would call at that time. Kogut called the 4617 number

the following day, but nobody answered. She then sent a text message to the 4617 number. She

received no response. On November 5, 2012, Kogut sent a text message to the 4617 number

asking, “ ‘You going to be around at four?’ ” She received an affirmative response. She then

asked where she should go, and she received a text message stating, “ ‘Illinois Avenue.’ ” Kogut

asked, “ ‘Same place as last?’ ” The text message she received in reply said, “ ‘Yes.’ ”

¶8 As she had done in the past, Kogut met with Arnold, who provided cash with which to

purchase drugs. She again wore a concealed audio-recording device. She drove to the location

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where the October 22, 2012, transaction had taken place. After another exchange of text

messages with the 4617 number, Magallanes approached Kogut’s vehicle and handed her a clear

plastic bag containing a white rock-like substance. The parties stipulated that the substances

Kogut received on October 9, October 11, October 23, and November 5, 2012, contained

cocaine. The audio recordings of Kogut’s calls to or from the 4617 number and of the second,

third, and fourth drug transactions were admitted into evidence.

¶9 Defendant does not challenge the sufficiency of the evidence to sustain convictions for

the first three transactions. The sole issue on appeal is whether the State presented sufficient

evidence to sustain a conviction in connection with the final transaction, which took place on

November 5, 2012. A reviewing court will not set aside a criminal conviction unless the

evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s

guilt. People v. Collins,

(1985). When we review a challenge to the

sufficiency of the evidence, “ ‘the relevant 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.)

(quoting

Jackson v. Virginia,

(1979)). The trier of fact is responsible for resolving

conflicts in the testimony, weighing the evidence, and determining what inferences to draw, and

a reviewing court ordinarily will not substitute its judgment on these matters for that of the trier

of fact. People v. Cooper,

(2000).

¶ 10 Although defendant never personally delivered cocaine to Kogut, the State prosecuted

him under the principles of accountability. Guilt under a theory of accountability may be

established with evidence that, either before or during the commission of an offense, the

defendant solicited, aided, abetted, or agreed or attempted to aid another in the planning or

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commission of the offense and did so with the intent to promote or facilitate the commission of

the offense. 720 ILCS 5/5-2(c) (West 2012). Defendant does not dispute that Kogut was able to

identify his voice. Thus, Kogut’s testimony clearly proved that defendant aided in the

commission of the first three offenses. What sets the fourth transaction apart from the first three,

however, is that Kogut did not speak with defendant. The fourth transaction was arranged

entirely by means of text messages. Defendant argues that “to prove that [defendant] had

anything to do with the fourth delivery, the State had to prove he sent the text messages from

4617 to Kogut’s phone and/or directed Magallanes to deliver the cocaine to Kogut.” According

to defendant, the State failed to meet this burden inasmuch as it did not prove that defendant

owned the telephone associated with the 4617 number, and the evidence shows that at least one

other person had access to that telephone. We disagree.

¶ 11 Whether or not defendant owned the telephone in question, there was considerable

evidence that defendant was the telephone’s primary user. Defendant used the telephone

repeatedly to contact Kogut in order to arrange drug transactions. Similarly, Kogut was able to

reach defendant on numerous occasions through the 4617 number. There is no evidence that

anyone other than defendant ever answered a call at that number. It is true that, on one occasion,

Kogut received a call placed from the 4617 number and did not believe that defendant was the

caller. About 10 minutes later, however, defendant did place a call to Kogut from the 4617

number, and he claimed that he had also placed the previous call. Defendant indicated that he

did not recognize Kogut’s voice.

¶ 12 Defendant’s consistent use of the telephone with the 4617 number for voice

communications is compelling circumstantial evidence that defendant sent the text messages that

Kogut received on November 5, 2012. “Circumstantial evidence is ‘proof of facts and

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circumstances from which the trier of fact may infer other connected facts which reasonably and

usually follow according to common experience.’ ” People v. McPeak,

(2010) (quoting People v. Stokes,

(1981)). It was reasonable to infer that

the cell phone belonged to defendant and that he sent the text messages. But even if someone

other than defendant sent the text messages on November 5, 2012, defendant would still be

accountable for delivery of cocaine if he provided the telephone to a third party and intended that

it be used to set up a drug deal. It is possible, of course, that the telephone was used without

defendant’s knowledge or that defendant provided the telephone to a third party for an innocent

purpose. The trier of fact was not obligated, however, to elevate the possibility to a reasonable

doubt. Accord People v. Milka,

(2003) (“A jury is not required to

accept a reasonable hypothesis of innocence and elevate it to the status of reasonable doubt.”).

¶ 13 At trial, defendant moved to bar Kogut from testifying about the text messages she

received on November 5, 2012. Defendant argued that, without evidence of the identity of the

telephone’s “actual owner,” the State was “unable to actually establish the identity of the

speaker.” This was, in substance, a challenge to the authenticity of the text messages. Rule

901(a) of the Illinois Rules of Evidence provides that “[t]he requirement of authentication or

identification as a condition precedent to admissibility is satisfied by evidence sufficient to

support a finding that the matter in question is what its proponent claims.” Ill. R. Evid. 901(a)

(eff. Jan. 1, 2011). In this case, that would entail proof that the text messages were either from

defendant or from someone acting on his behalf. Rule 901(b)(4) of the Illinois Rules of

Evidence indicates that evidence can be authenticated by “[a]ppearance, contents, substance,

internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.”

Ill. R. Evid. 901(b)(4) (eff. Jan. 1, 2011). Here, that means that the State could rely on the use of

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the 4617 number, in connection with the first three transactions, to authenticate the text

messages. Defendant argues that “the substance of the texts [may not] be used to satisfy the

State’s burden [of proof] where the text message testimony was allowed only for the limited

purpose of explaining Kogut’s actions, not as substantive evidence.” The argument is meritless.

The State relied on the text messages themselves only to show what led Kogut to engage in a

drug transaction on November 5, 2012. By linking defendant to the cell phone associated with

the 4617 number, the State was able to establish that text messages from that number were sent

by defendant or on his behalf. Because that evidence did not depend on the substance of the text

messages, it did not run afoul of the trial court’s limiting instruction.

¶ 14 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed.

As part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for

this appeal. 55 ILCS 5/4-2002(a) (West 2014); see also People v. Nicholls,

(1978).

¶ 15 Affirmed.

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