People v. Anders, 4-91-0753

• Decision Date: 07 May 1992
• Docket Number: No. 4-91-0753,4-91-0753
• Citation: 170 Ill.Dec. 216,592 N.E.2d 652,228 Ill.App.3d 456
• Parties: , 170 Ill.Dec. 216 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bobby L. ANDERS, Defendant-Appellant. Fourth District
• Court: United States Appellate Court of Illinois

Page 652

592 N.E.2d 652 228 Ill.App.3d 456, 170 Ill.Dec. 216 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Bobby L. ANDERS, Defendant-Appellant. No. 4-91-0753. Appellate Court of Illinois, Fourth District. May 7, 1992.

Page 653

[228 Ill.App.3d 457] [170 Ill.Dec. 217] Theodore A. Gottfried, Director, Office of State Appellate Defender, Springfield, (Emmet A. Fairfield, Brown, Hay & Stephens, of counsel), for defendant-appellant.

Scott H. Walden, State's Atty., Quincy, Norbert J. Goetten, Director State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman Deputy Director, and Elliott Turpin, Staff Atty., for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

Defendant Bobby L. Anders was convicted by an Adams county jury of unlawful delivery of less than one gram of a controlled substance containing cocaine (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(d)), and unlawful delivery of one or more grams, but less than 15 grams of a controlled substance containing cocaine (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1401(c)(2)). He was sentenced to concurrent three- and six-year terms of imprisonment and fined $1,500 and a street-value fine of $150. He argues the evidence was insufficient to convict him of either offense and the trial judge abused his discretion in sentencing him. We disagree and affirm.

Defendant was indicted by the Adams County grand jury on January 28, 1991. Count I alleged defendant committed the offense of unlawful delivery of a controlled substance by knowingly and unlawfully delivering less than one gram of a substance containing cocaine. Count II alleged defendant and Joseph E. Peters committed the offense of unlawful delivery of 1 or more grams, but less than 15 grams of a substance containing cocaine. Count III alleged defendant committed narcotics racketeering by receiving income while knowing that income was derived from a pattern of narcotics activity. (Ill.Rev.Stat.1989, ch. 56 1/2, par. 1654(a).) Count III was dismissed before defendant's jury trial began.

The trial occurred on May 13 and 14, 1991. Defendant's activities at issue in the trial occurred on September 20, 1990. On that day Mark Brinks, a State witness, was involved in an Illinois State Police undercover drug operation directed at defendant. Brinks knew defendant through playing pool. Several months earlier a friend of defendant's, Joey Peters, had begun working for Brinks doing remodeling work. When Brinks occasionally needed extra laborers, defendant also worked for him. Brinks testified he had purchased[228 Ill.App.3d 458] cocaine from defendant several times during the last two months. These transactions occurred at Brinks' residence and at defendant's home. Brinks paid $100 a gram for the cocaine.

On September 19, Brinks arranged to buy an "eight ball" of cocaine from defendant. An "eight ball" is 3 1/2 grams. Brinks testified defendant said he would bring the drugs to Brinks' house at 3 p.m., September 20. On the morning of September 20, Brinks phoned the Illinois State Police. Officers Ray Nebe and Debra Hedden arrived at Brinks' home at approximately 2:15 p.m. When they arrived, Nebe searched him and Hedden gave him a $100 bill. Nebe departed after the pat-down search.

Defendant and Joey Peters arrived at Brinks' home at approximately 2:30 p.m. Brinks and Hedden were sitting at the kitchen table. When defendant and Peters entered, they sat at the table and talked. Then defendant said to Brinks, "[C]ome here I want to talk to you." Defendant and Brinks entered the bathroom. According to Brinks, defendant had a folded package and told him he "got that stuff," but asked who the girl was. Although Brinks told him she was his friend, defendant said he did not want to do anything in her presence. He gave Brinks the package and Brinks gave it back to him, stating,

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[170 Ill.Dec. 218] " '[s]he's the one buying it. I would just as soon you sell it to her.' " Defendant refused and returned the package to Brinks. Brinks took the package and gave defendant a $100 bill. They returned to the kitchen.

Brinks identified People's exhibit No. 1 as the Marlboro package which defendant handed to him in the bathroom. Officer Hedden could not observe Brinks and defendant in the bathroom from where she sat in the kitchen. Brinks and defendant returned to the kitchen table and sat down. Brinks opened the Marlboro package containing a white powdery substance, which he tasted. He handed the package to Hedden and asked defendant if he could get more. Defendant indicated he would need $150 to obtain the additional cocaine. Brinks asked defendant if it would be "just as good as this." Defendant said it would be "just as good as that or better." Brinks told Hedden to give defendant the money. She gave Brinks $160 and he gave it to defendant. Defendant said he would be gone no longer than one hour and Brinks should stop by his house. Defendant told Brinks he should stop by when he saw defendant's truck parked outside. Defendant left with Peters.

An hour later, Hedden and Brinks went to defendant's house. They did not see defendant's truck. A short time later they returned to defendant's house and found Peters outside. Peters told [228 Ill.App.3d 459] them to go to a tavern for a while and come back shortly. They drove past again and did not see defendant's truck. At 5 p.m. Hedden dropped Brinks off at a clinic where his wife worked.

Brinks testified that he had a cocaine habit. According to him, in September 1990 he was not using cocaine heavily, but was using it on a weekly basis. Before this date, he used cocaine daily. He also admitted that in consideration of his participation in this undercover operation, a traffic offense of driving while his license was suspended was dismissed.

On cross-examination, Brinks stated he thought he directed defendant into the bathroom during the first alleged drug delivery, rather than defendant directing Brinks. He agreed the search performed on him was a pat-down search and his house was not searched before the alleged initial drug delivery which occurred there. Brinks also admitted having a cocaine problem for four or five years. He had sought treatment about two years earlier but was not receiving any aftercare. Brinks had told the grand jury defendant tempted him so much he finally starting doing cocaine again. He admitted on cross-examination that he had asked defendant to get him cocaine. Brinks stated he...