FIFTH DIVISION April 14, 2017

No. 1-14-2726

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) ) No. 13 CR 3697 TINO TERRELL, ) ) ) Defendant-Appellant. ) Honorable ) Michael B. McHale, ) Judge Presiding.

JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

OPINION

¶1 Defendant Tino Terrell was convicted of possession of a controlled substance

following a bench trial and sentenced to 15 years’ imprisonment. This is a direct appeal from

the judgment of the trial court.

¶2 BACKGROUND

¶3 Terrell was charged with eleven counts of unlawful possession of a weapon by a

felon, two counts of possession with intent to deliver a controlled substance, one count of

possession of cannabis with intent to deliver, and one count of possession with intent to

deliver methamphetamine. No. 1-14-2726 Draft Opinion

¶4 At trial, Officer Robert Gallas testified that on January 17, 2013, he was assigned to a

gang unit tasked with executing a search warrant at 6809 South Laflin Street, a two bedroom

1st floor apartment in Chicago, Illinois (Apartment). At approximately 9 p.m., his unit

entered the apartment. The apartment door was barricaded with a “scissor gate” with a large

padlock. While police attempted to open the door, the lessee of the premises, later discovered

to be Edward McDaniel, came to the door. Because McDaniel would not promptly open the

door, and the padlock was too large to be cut with large bolt cutters, the team used a

“Chicago bar” and sledge hammer to pull the gate from its hinges and enter the apartment.

Upon entering, Officer Gallas noted that the rear door was barricaded with two-by-fours.

¶5 Officer Dan Pacelli testified that he was also assigned to the team executing the

search warrant. He testified that he searched the dining room and front living room area of

the apartment. While conducting his search, Officer Pacelli found two prescription bottles

with Terrell’s name on them in the living room. The trial court noted that the address on the

pill bottles differed from the Apartment. One of the bottles had a “use by” date of August 24,

2013, and the date August 24, 2012, was also written on the bottle. The other bottle had a

date of issuance of May 23, 2012. One of the bottles still contained pills, while the other was

empty. Pacelli also recovered an adult probation card in the living room near the prescription

bottles that bore Terrell’s name. Terrell’s passport was found in the same area as the bottles

and the card.

¶6 Officer Pacelli also recovered two duffle bags from atop the dining room china

cabinet. The bags contained clothing that appeared to fit a male larger than himself. Pacelli

described himself as six feet one inches tall and weighing 250 pounds. The court noted that

Terrell was larger in size than Officer Pacelli and was wearing a 4XL tan department of

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Draft Opinion

corrections uniform. Officer Pacelli also noted that Edward McDaniel was of smaller

proportions, approximately six feet tall and 160-165 pounds.

¶7 Officer Michael O’Connor testified that he was also a part of the search warrant team

on January 17, 2013. He stated that there were paintings and photos all over the front living

room and that he recovered a framed photograph that included Terrell.

¶8 Officer Gus Bedoy testified that he searched the whole house and found nothing in

the bathroom, kitchen, or either bedroom demonstrating that Terrell lived in the Apartment.

Bedoy also testified that he searched the hallway closet and discovered clothing. He stated

that while searching a hallway closet, he noticed U-shaped scratches on the side of each wall.

He noted that part of the panel on the wall was loose which led him to look inside. He found

metal tracks inside the wall and uncovered a large, clear, plastic bag which he suspected

contained cannabis. He noted that the hidden compartment, commonly referred to as a trap,

was three feet wide, three feet high, and approximately two feet deep. Its composition

consisted of two-by-fours, metal rails, a battery, power motor, and plastic bands. The trap

contained United States currency, digital scales, mixing containers, and mixing agents.

¶9 Later, Officer Ciocci discovered multiple firearms in the trap, and the parties

stipulated that the weapons recovered consisted of the following guns: a .45 caliber, a loaded

9mm Ruger, a loaded 9mm Berretta, a .357 caliber, a .765 caliber, a loaded 9mm CPX1, and

a 9mm Taurus. Also recovered were eight boxes of ammunition.

¶ 10 During the search, FBI Special Agent Christopher Weismantel went out to his car and

observed a red pickup truck parked behind him. His car was parked almost directly in front

of the Apartment, and agent Weismantel had been previously informed that the pickup truck

might belong to Terrell. After noticing Terrell sitting in the driver’s seat of the pickup,

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Weismantel approached him, engaged him in conversation, and asked him to come inside the

Apartment, where Terrell was ultimately arrested. Officer Gallas searched Terrell and

testified that he could not recall finding any drugs on him or anything indicating that Terrell

lived at the Apartment.

¶ 10 Sergeant Michael Karczewski read Terrell his Miranda rights at the Apartment, and

later, at the police station, Terrell gave the police signed written consent to search the pickup

truck. Officer Bedoy testified that, while searching Terrell’s vehicle, he discovered a trap

hidden behind the radio compartment. He testified that the trap resembled the one found

inside Apartment’s hallway closet. Specifically, he noted that the motorized bands and

insulation in the two traps were similar in composition and nature; however, he also stated

that he could not tell whether the same person installed them at the same time and that the

parts used were common and could be purchased at electronics or auto parts stores.

¶ 11 At trial, the State introduced a certified copy of defendant’s previous conviction for

possession of a controlled substance, under case number 11CR0855601, in which Terrell was

sentenced to 24 months probation on September 10, 2012. The State also submitted a

certified vehicle record showing defendant’s ownership of the pickup truck. The address

listed on the vehicle record was 7224 South Marshfield Avenue, Chicago, Illinois.

¶ 12 Defense witness David Cole testified that he owned the home located at 6809 South

Laflin Street for 14 years and described it as consisting of two floors; Edward McDaniel had

been the lessee of the first floor apartment since 2011. Cole testified that he did not know

defendant and that McDaniel paid the rent in person outside the apartment every month.

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¶ 13 The trial court found defendant guilty on all counts except the methamphetamine

charge, and on July 14, 2014, the trial court denied defendant’s motion for a new trial.

Subsequently, this appeal followed.

¶ 14 ANALYSIS

¶ 15 The dispositive issue on appeal is the sufficiency of the evidence supporting Terrell’s

convictions. Specifically, Terrell contends that the evidence was insufficient to establish that

he constructively possessed the drugs and weapons recovered from the Apartment’s hallway

closet. In response, the State contends that the facts of this case demonstrate that Terrell

inhabited the Apartment and therefore support a finding that Terrell had constructive

possession over the drugs and weapons. We disagree with the State.

¶ 16 A challenge to the sufficiency of the evidence requires us to consider 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. Fernandez,

(quoting People v. Baskerville,

). We will not substitute our judgment for that of the trier of fact, and we will

not reverse a conviction unless the evidence is so improbable or unsatisfactory as to create a

reasonable doubt of defendant’s guilt. People v. Beauchamp,

(2011).

¶ 17 Terrell challenges his convictions on the basis that the State did not prove he

possessed the contraband recovered. Possession may be either actual or constructive. People

v. Love,

(2010). Because it is undisputed that Terrell did not have

actual possession of the weapons, ammunition, or drugs, we consider only whether he

constructively possessed these items. Constructive possession exists where there is no

personal dominion over the contraband, but the defendant has control over the area where the

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contraband was found. People v. Hunter,

. Stated differently, the State

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

the contraband and exercised “immediate and exclusive” control over the area where the

contraband was discovered. People v. Tates,

, ¶ 19. Significantly,

evidence establishing constructive possession is “ ‘often entirely circumstantial.’ ” People v.

McCarter,

(2003) (quoting People v. McLaurin,

(2002)). “A trier of fact is entitled to rely on an inference of knowledge and

possession sufficient to sustain a conviction ‘absent other factors that might create a

reasonable doubt as to the defendant’s guilt.’ ” People v. Alicea,

(quoting McCarter,

).

¶ 18 Generally, habitation of the location where contraband is found is sufficient evidence

of control constituting constructive possession. See People v. Maldonado,

. Evidence of residency or habitation often takes the form of rent receipts, utility

bills, or mail. See, e.g., id.; People v. Lawton,

(1993). In this

particular case, none of the aforementioned items link Terrell to the Apartment; nevertheless,

the State contends that the lack of evidence of residency is not dispositive in light of the

circumstances and the other items found in the Apartment. Specifically, the State points to

the fact that (1) large men’s clothes were found on top of the china cabinet in the dining

room, (2) two prescription bottles and an adult probation card bearing Terrell’s name were

found next to the living room couch with his passport, and (3) a framed photo depicting

Terrell was recovered from the living room.

¶ 19 In support of its contention, the State draws this Court’s attention to the decision in

People v. Cunningham,

(1999). In that case, the police arrested the

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defendant at a tavern and later returned him to his purported residence. Cunningham,

. The police unlocked the home, using a key from the defendant’s key ring.

Once in the home, the police used another key, taken from defendant’s key ring, to unlock

the front bedroom.

The police discovered men’s clothes in the bedroom closet and tools

on the floor.

They also found cocaine, three scales, a mixing bowl, a box of ammunition,

and the defendant’s inmate identification card.

While searching the defendant, the police

also found packets of cocaine in his shoes and an Illinois driver’s license with the address of

the purported residence.

The defendant also gave the same address to his parole officer

and the arresting officer, in addition to having mail delivered to the purported residence.

. Consequently, the reviewing court found the evidence sufficient to support

defendant’s conviction.

¶ 20 Unlike in Cunningham, the trial court in this case was not presented with a plethora of

evidence tying Terrell to either the Apartment or to the hidden contraband. First, the pat

down search of Terrell uncovered no contraband or drug paraphernalia tying him to any of

the items discovered in the hallway closet trap. See In re K.A.,

(1997);

see also People v. Minkin,

(1971) (reversing conviction of unlawful

possession of narcotic drugs where, inter alia, no contraband was found on defendant’s

person). Second, Terrell did not have a key to the Apartment which, because of the rear door

barricade, could only be entered by unlocking the front door and the scissor gate equipped

with the large padlock. See In re K.A.,

(noting defendant did not have

key to the apartment and had to be let inside by another occupant); see also People v. Ray,

(1992) (noting that the only person who had a key to the

residence was the codefendant rather than the defendant). On the contrary, it was the lessee,

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Edward McDaniel, who answered the door and attempted to unlock the scissor gate for the

police. See Fernandez,

(finding the presence of an

unidentified man on the premises at the time the police executed the search warrant weighs

against a finding that defendant maintained control over the premises).

¶ 21 Third, the evidence supporting the Cunningham court’s conclusion that the defendant

resided at the address where the contraband was discovered was substantial and

uncontroverted. See Cunningham,

. In Cunningham, the defendant’s

mail was delivered to the residence where the contraband was found.

Moreover, the

residence’s address was listed on defendant’s driver’s license, and the defendant provided the

same address to his arresting officer and to his parole officer.

Here, the owner of the

Apartment testified that he did not know who Terrell was, and none of the addresses listed on

any of the evidence matched the Apartment’s address. The trial court noted that the pill

bottles contained different addresses, and the certified vehicle record also listed a separate

Chicago address than that of the Apartment. People v. Moore,

(taking into consideration evidence presented at trial that defendant did not live at the house).

¶ 22 In further support of its position, the State cites the decisions in People v. Givens,

(2010), and People v. Walton,

(1991); however, like

Cunningham, the facts in those cases are distinguishable from the facts in the case before this

Court. In Givens, the Illinois Supreme Court noted that the arresting officers found the

defendant and her boyfriend lying in a bed located in the sole bedroom of an apartment.

Givens,

. In plain view, the officers observed a clear plastic bag containing

crack cocaine on top of a nightstand near the bed and within arm’s reach of the couple.

The supreme court found the evidence established that the defendant had joint possession of

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the drugs, and the court stated: “In [People v. Schmalz,

(2000)], the illegal

drugs were within a short distance of defendant, while in the instant case, the drugs were on a

nightstand within a short distance of the bed in which defendant was lying. A nightstand in a

bedroom is a place where it could reasonably be expected that a couple staying as overnight

guests would place their valuable personal items.” Id. at 338.

¶ 23 Similarly, the reviewing court in Walton found defendant to be in joint possession of

cocaine, even though her codefendant claimed ownership of the drugs. Walton,

. In Walton, the defendants fled by car from the police and subsequently crashed

the vehicle. The driver stumbled back to the vehicle and retrieved a sealed package that was

leaking white powder.

. The white powder was cocaine, and it was later established

that it was stashed behind the driver’s seat.

The car belonged to the defendant, who was a

passenger at the time of the crash.

After patting down the defendant, the police found 96

plastic bags and a gram scale.

. In finding the evidence sufficiently established

constructive possession, the reviewing court noted that the car belonged to the defendant, and

“her possession of the paraphernalia used in the distribution of narcotics was circumstantial

evidence which provided the necessary corroboration.”

.

¶ 24 Contrary to the facts in both Givens and Walton, the record before this Court

demonstrates that no contraband or paraphernalia were discovered on Terrell’s person, in his

pickup truck, or in plain view inside the Apartment; all of the contraband was discovered

hidden in the ceiling trap in the hallway closet. See In re K.A.,

(noting

narcotics were not in plain sight and were concealed). Officer Bedoy testified that he

searched the entire Apartment and found nothing in either of the two bedrooms, the

bathroom, or the kitchen evidencing Terrell inhabited the Apartment. None of Terrell’s

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property was found in the same room as the contraband. Clothes were found in the bedrooms

and the hallway closet, but they were also never linked to Terrell. Although the trial court

noted that Terrell wore a 4XL department of corrections jumpsuit, and Officer Pacelli

testified that the clothing found on top of the dining room china cabinet was larger than

would fit him, this clothing was not found next to or in the same room as the contraband, and

neither were the prescription bottles, the passport, the probation card, or the photograph. See

People v. Moore,

(noting contraband was not recovered from

the area where police found the male clothing and mail addressed to the defendant).

¶ 25 Agent Weismantel discovered Terrell sitting in his empty pickup truck across the

street from the Apartment, rather than within arm’s reach of contraband (Givens) or inside a

car containing drugs and drug paraphernalia (Walton). See Ray,

(reversing convictions based upon constructive possession where defendants found sitting in

living room on couch 18 inches from handgun, United States currency, and drugs).

Notwithstanding these distinctions, the State contends that Terrell’s presence across the street

from the Apartment, sitting inside his truck equipped with a hidden compartment, supports

the conclusion that Terrell resided in the Apartment. However, reviewing courts have made it

clear that mere presence in the vicinity or access to the area in which contraband is found is

insufficient to establish constructive possession. See People v. Sams,

; People v. Macias,

(1998); People v. Rangel,

(1987)).

¶ 26 At trial, the State introduced evidence showing Terrell purchased the pickup truck on

June 6, 2010, as well as evidence that, at the time of his arrest, he was serving 24 months

probation for his September 10, 2012, possession of a controlled substance conviction. The

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State elicited Officer Bedoy’s testimony that he conducted a search of the truck’s hidden

compartment, and he opined that the trap was similar to the one in the Apartment. He

testified that both traps were made from common components sold at electronics and auto

stores. Bedoy’s search of the truck’s hidden compartment revealed no drugs, weapons, or

paraphernalia; the trap was completely empty. The State presented no physical evidence

indicating anything had been in the truck’s hidden compartment nor any physical evidence

tying Terrell to the seven guns, eight boxes of ammunition, digital scales, mixing containers

or bags of drugs. See Sams,

(finding evidence insufficient to

sustain a conviction for constructive possession of the gun where, inter alia, no physical

evidence connected defendant to the gun); see also Lawton,

(sustaining conviction where field test showed presence of cocaine on defendant’s hands

connecting him to the cocaine inside the apartment); see also People v. Bond,

(1990) (defendant’s fingerprints were found on a bottle of a substance used to

dilute cocaine). As a result, we find the connection between the hallway closet trap and the

empty hidden compartment in Terrell’s truck to be tenuous at best. See Fernandez,

(finding the discovery of defendant’s passport, insurance card,

framed pictures of defendant, men’s clothing, and a .38-caliber gun in the bedroom of the

house bore a tenuous relationship to, inter alia, the .38-caliber bullets found in the garage).

¶ 27 In Ray,

, and Fernandez,

, both of

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. Ray,

. Despite the defendants’ seated

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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.

.

¶ 28 Similarly, in Fernandez the police arrested defendant after he fled. The police

recovered heroin from his person and from within his car. Fernandez,

. The police also recovered a set of keys from defendant, and subsequently

executed a search warrant of the home which the keys unlocked. Id. ¶¶ 9-10. The search of

the home revealed a handgun under the mattress in a bedroom. Id. ¶ 11. In the same

bedroom, officers found the defendant’s passport and insurance cards, as well as framed

pictures of defendant and the woman with whom he was driving on the day of his arrest. Id.

The closet held both men’s and women’s clothes, and there were additional framed pictures

of the defendant with the same woman hanging on the wall in the living room. Id.

Notwithstanding this evidence, the reviewing court reversed defendant’s conviction, noting

that the evidence did not link him to the home’s address and that the hidden location of the

gun was a factor creating reasonable doubt as to defendant’s knowledge of the presence of

the gun. Id. ¶¶ 19-22.

¶ 29 Assuming arguendo—due to the presence of his passport, the prescription bottles, the

adult probation card, the large men’s clothes, and the framed picture in the living and dining

room—that Terrell had some connection with the residence, the fact that the contraband was

concealed in a compartment in the hallway closet undercuts the inference that he had

knowledge of its existence. See, e.g., id. ¶ 24 (handgun was found hidden under the mattress

in the bedroom and other contraband was found under the hood of a van in a detached

garage); Maldonando,

(drugs were hidden in a statue on the

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bedside table); Moore,

(contraband was hidden in a desk

drawer); In re K.A.,

(narcotics were hidden under a McDonald’s box in a

hole in the closet); People v. Adams,

(1993) (cocaine was hidden in

a cabinet under the bathroom sink and in the freezer). On this point, Maldonando,

, is instructive. The reviewing court reversed the defendant’s conviction for

possession of drugs, in part, because despite the fact that mail addressed to him was found on

the premises, the drugs recovered were hidden in a statue. Id. ¶ 41. The reviewing court

reasoned that even if the mail established the defendant’s control over the premises (which

the reviewing court determined it did not), the fact that the contraband was hidden, coupled

with the State’s failure to prove that the defendant was ever inside the residence, precluded a

finding that the defendant had knowledge of the drugs. Id. Consistent with the reasoning in

Maldonando, the reviewing court in Fernandez reached the same conclusion. See Fernandez,

.

¶ 30 Similarly, in the case at bar, the hidden location of the contraband and the State’s

failure to prove that Terrell ever entered the home creates a reasonable doubt as to Terrell’s

knowledge of the contraband in the hallway closet trap. Even when viewed in the light most

favorable to the prosecution, the evidence presented at trial does not support a finding that

defendant committed the essential elements of the crime beyond a reasonable doubt.

¶ 31 CONCLUSION

¶ 32 Accordingly, Terrell’s conviction for possession of a controlled substance with intent

to deliver, possession of cannabis with intent to deliver, and eleven convictions for unlawful

possession of a weapon by a felon are reversed. Given this disposition, we need not address

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defendant’s contention on appeal relating to the admission of the probation card or Terrell’s

allegations of ineffective assistance of counsel.

¶ 33 Reversed.

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