People v. Beachem

• Decision Date: 08 June 2007
• Docket Number: No. 1-05-0045.,1-05-0045.
• Citation: 871 N.E.2d 805
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Wade BEACHEM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

871 N.E.2d 805

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Wade BEACHEM, Defendant-Appellant.

No. 1-05-0045.

Appellate Court of Illinois, First District, Fifth Division.

June 8, 2007.

Michael J. Pelletier, Office of the State Appellate Defender, Chicago (Maria A. Harrigan, of counsel), for Appellant.

Richard A. Devine, Cook County State's Attorney, Chicago(James E. Fitzgerald, Mary L. Boland, Paula Borg, of counsel), for Appellee.

Justice FROSSARDdelivered the opinion of the court:

Following a bench trial, defendantWade Beachem was convicted of possession of a controlled substance with intent to deliver and sentenced to six years in the Illinois state penitentiary.The trial court also ordered defendant to pay $3,704.On appeal, defendant claims that his conviction of possession of a controlled substance with intent to deliver should be reduced to simple possession of a controlled substance because the State did not prove that he had the requisite intent to deliver.Defendant also contends that he should be credited, against his sentence, for time served in the Cook County Sheriff's Day Reporting Center Program (Day Reporting Center) prior to sentencing.Defendant raises three contentions concerning the order to pay $3,704: (1)he was denied due process when he was ordered to pay a $5 fee for deposit in the Spinal Cord Injury Paralysis Cure Research Trust Fund; (2) that he is entitled to apply a $5-per-day credit for incarceration to the $3,000 controlled substance assessment; and (3) that the trial court improperly imposed a $20 fine for deposit in the Violent Crime Victims Assistance Fund.Lastly, the defendant contends that the extraction of his blood and perpetual storing of his DNA profile pursuant to section 5-4-3 of the Unified Code of Corrections(730 ILCS 5/5-4-3(West 2004)) violates his fourth amendment right to be free from unreasonable searches and seizures.

BACKGROUND

At trial, Officer Albert Powe testified that on the evening of March 3, 2004, he and his partner, Officer Hawkins, executed a search warrant for defendantWade Beachemat 3550 S. Rhodes Avenue, Apartment 607, Chicago.When the two officers stepped off the elevator of the sixth floor, they observed as defendant opened the front door of apartment 607.Officers Powe and Hawkins identified themselves as Chicago police officers and informed defendant that they had a search warrant for the apartment.When they walked inside, two other adults and two children were seated in the living room.The officers told those present in the apartment that they had a search warrant to search the apartment, provided a copy of the warrant, and read defendant his Miranda rights.After reading defendant his Miranda rights, Officer Powe asked defendant if he wanted to tell the officers about anything in the apartment.Defendant at that point declined to make any statements.

During the search, the officers recovered two plastic bags containing a white, rocky substance from the pocket of a jacket hanging in the rear bedroom closet.The officers transported defendant to the second district police station.At the station, Officer Powe read defendant his Miranda rights.After receiving his Miranda rights, defendant stated that he sold drugs to support his family.

The parties stipulated that Charlotte Corbitt, a forensic chemist with the Illinois State Police crime lab, would have testified that the plastic bags weighed 23.9 grams total, and that the bags tested positive for the presence of cocaine.The parties further stipulated that a proper chain of custody was maintained at all times.The officers also found an unopened ComEd utility bill from January 2004 addressed to defendant at the 3550 S. Rhodes address.

The trial court found defendant guilty of possession of a controlled substance with intent to deliver, sentenced defendant to a minimum of six years in prison, and ordered defendant to pay $3,704 in "costs and fees."This appeal followed.

ANALYSIS

On appeal, defendant challenges his conviction for possession of a controlled substance with intent to deliver, the calculation of his term of imprisonment, various fines and fees imposed against him, and contends that the extraction of his blood and perpetual storing of his DNA profile violates his fourth amendment right to be free from unreasonable searches and seizures.

I.Possession of a Controlled Substance with Intent to Deliver

Defendant contends that his conviction of possession of a controlled substance with intent to deliver should be reduced to simple possession of a controlled substance because the State did not prove that he had the requisite intent to deliver.The three elements of the crime of unlawful possession of narcotics with intent to deliver are: (1)the defendant had knowledge of the presence of the narcotics, (2) the narcotics were in the immediate possession or control of the defendant, and (3)the defendant intended to deliver the narcotics.People v. Pintos,133 Ill.2d 286, 291, 139 Ill.Dec. 832, 549 N.E.2d 344(1989).On appeal, defendant contends that the State did not prove the third element beyond a reasonable doubt — that he intended to deliver the narcotics.

In addressing the sufficiency of the evidence, it is not the court's role to reweigh the evidence.People v. Hendricks,325 Ill.App.3d 1097, 1110, 259 Ill.Dec. 572, 759 N.E.2d 52(2001).Rather, the issue to be resolved is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have concluded beyond a reasonable doubt that the defendant intended to deliver the cocaine.People v. Robinson,167 Ill.2d 397, 407, 212 Ill.Dec. 675, 657 N.E.2d 1020(1995).

Since direct evidence of intent to deliver is rare, intent to deliver is frequently proven with circumstantial evidence.Robinson,167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020.Illinois courts have considered several different factors probative of intent to deliver.

"Such factors include whether the quantity of controlled substance in defendant's possession is too large to be viewed as being for personal consumption (People v. Berry(1990), 198 Ill. App.3d 24[144 Ill.Dec. 315, 555 N.E.2d 434]), the high purity of the drug confiscated (People v. Torres(1990), 200 Ill. App.3d 253[146 Ill.Dec. 682, 558 N.E.2d 645]), the possession of weapons (People v. Dockery(1993), 248 Ill.App.3d 59[187 Ill.Dec. 757, 618 N.E.2d 348]), the possession of large amounts of cash (People v. Jones(1991), 215 Ill.App.3d 652[159 Ill.Dec. 63, 575 N.E.2d 561]), the possession of police scanners, beepers or cellular telephones (People v. LeCour(1988), 172 Ill.App.3d 878[122 Ill.Dec. 753, 527 N.E.2d 125]), (People v. Bradford(1993), 239 Ill.App.3d 796[180 Ill. Dec. 556, 607 N.E.2d 625]), the possession of drug paraphernalia (People v. McDonald(1992), 227 Ill.App.3d 92[169 Ill.Dec. 84, 590 N.E.2d 1003]) and the manner in which the substance is packaged (People v. Banks(1992), 227 Ill. App.3d 950[169 Ill.Dec. 925, 592 N.E.2d 412])."Robinson,167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020.

In the instant case, the officers confiscated two plastic bags from defendant's jacket that contained 23.9 grams of cocaine in total.Although Illinois courts have on occasion found amounts of cocaine in excess of 23.9 grams to be consistent with personal consumption, supporting only a conviction of simple possession, Illinois courts have also convicted defendants of possession of a controlled substance with intent to deliver with less than 23.9 grams of cocaine when other evidence is present.Hendricks,325 Ill.App.3d at 1114, 259 Ill. Dec. 572, 759 N.E.2d 52(court reversed defendant's conviction of possession of a controlled substance with intent to deliver and remanded case for trial on possession of a controlled substance where the State could not prove that defendant had the requisite intent to deliver 27.81 grams of cocaine);People v. Little,322 Ill.App.3d 607, 620, 255 Ill.Dec. 828, 750 N.E.2d 745(2001)(court found that 1.5 grams of cocaine was sufficient to find defendant had the requisite intent to deliver where officers witnessed defendant exchange a small object for money).

As the Illinois Supreme Court stated in Robinson, where the quantity of narcotics "in the defendant's possession decreases, the need for additional circumstantial evidence of intent to deliver to support a conviction increases."Robinson,167 Ill.2d at 413, 212 Ill.Dec. 675, 657 N.E.2d 1020.Although the quantity of a controlled substance alone can be sufficient to prove an intent to deliver, here, the State does not argue that the amount of cocaine, standing alone, was sufficient to support a conviction of possession with intent to deliver.SeeRobinson,167 Ill.2d at 410-11, 212 Ill.Dec. 675, 657 N.E.2d 1020.Rather, the State contends that the amount of cocaine and the defendant's own admission to Officer Powe, that he sold drugs in order to take care of his family, support the trial court's conviction of defendant for possession with intent to deliver.

We are mindful that in addressing the question of the sufficiency of the evidence we are not to reweigh the evidence.Based on the large amount of cocaine and the defendant's statement, we find that when all of the evidence is viewed as a whole and in a light most favorable to the State, that a rationale trier of fact could have concluded beyond reasonable doubt that the defendant intended to deliver the narcotics in his possession.

II.Calculation of Term of Imprisonment

Defendant contends that his mittimus should be amended to reflect credit for 7 days that he spent in full custody prior to his bench trial, 26 days in full custody between his guilty finding and his sentencing, and 258 days during which he was subject to the restrictions of the sheriff's Day Reporting Center pursuant to section 5-8-7 of the Unified Code of Corrections(730 ILCS 5/5-8-7(West 20...