People v. Blan

• Decision Date: 09 June 2009
• Docket Number: No. 2-07-0167.,2-07-0167.
• Citation: 913 N.E.2d 23,392 Ill. App.3d 453
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony K. BLAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

913 N.E.2d 23

392 Ill. App.3d 453

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony K. BLAN, Defendant-Appellant.

No. 2-07-0167.

Appellate Court of Illinois, Second District.

June 9, 2009.

Thomas A. Lilien, Deputy Defender, Office of State Appellate Defender, Linda A. Johnson, Office of State Appellate Defender, Elgin, IL, for Appellant.

Philip J. Nicolosi, Winnebago County State's Atty., Rockford, IL, Lawrence M. Bauer, Deputy Director State's Attorney Appellate Prosecutor, Richard S. London, State's Attorneys Appellate Prosecutor, Elgin, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Anthony Blan, appeals from his conviction of possession of 30 to 500 grams of cannabis with intent to deliver (720 ILCS 550/5(d) (West 2002)). On appeal, he argues that the State failed to prove his intent to deliver beyond a reasonable doubt and that the trial court committed reversible error by failing to instruct the jury on the lesser offense of possession (without intent to deliver). For the reasons that follow, we vacate the judgment of the trial court and remand for further proceedings.

Detective Jason Bailey of the Rockford police department was the first witness for the State at defendant's jury trial. He testified that, on the night of May 6, 2003, when he was patrolling an area known to have a high level of illegal drug-related activity, defendant saw his car, turned the opposite direction, and dropped a plastic bag from his pocket onto the ground. The bag was eventually revealed to contain 28.3 grams of a substance including cannabis (along with what a forensic scientist described as "just a few pieces that looked * * * like grass clippings from a lawn"). Bailey recalled that he and other officers searched defendant and found four smaller bags (later determined to contain a total of 3.6 grams of a substance containing cannabis), as well as $315 and a cellular telephone. Detective Robert Reffett, who was working with Bailey on the night of defendant's arrest, testified consistently with Bailey's testimony. Reffett also read into the record defendant's written statement to police. The statement read as follows, in pertinent part:

"`Today I had some extra cash on me * * *. I decided to go buy an ounce of weed. I bought the bag for $65. I planned on smoking most of it, but I planned to sell a little bit of it to make some money. I had this girl bag up four nickel bags which I was going to sell and make $20 dollars on.'"

Two more detectives who were on the scene also testified to describe defendant's arrest. Sergeant Marc Welsh of the Rockford police department, who testified as an expert on street-level narcotics sales, stated that a typical quantity of cannabis sold for personal use was one or two grams (worth approximately $10 or $20, respectively) and that "[a] person involved in selling cannabis would buy a larger quantity," such as an ounce (or 28.5 grams), "break it down into gram bags," and "sell those for $10 each." He testified that "[m]ost cannabis users would possess a few grams, most likely broken down into individual gram bags" like the four found on defendant and that a drug user would "[g]enerally not" carry a 28-gram bag of cannabis along with the smaller bags. Welsh concluded that the bags of drugs defendant was found carrying were "indicative of a person involved in selling cannabis," and, when asked to draw a conclusion as to defendant's purpose, based on defendant's statement that he was selling drugs, the quantity of drugs found on defendant, and the cash found on defendant, Welsh stated that those factors were "[d]efinitely consistent with a cannabis dealer." Welsh testified that his conclusion was further supported by the fact that defendant was not found with any drug paraphernalia and thus "had no means for using the drug" he was carrying.

Defendant declined to present any witnesses on his own behalf. During a jury instruction conference, the trial court denied defendant's request that the jury be tendered an instruction allowing it to find that defendant possessed the smaller bags with intent to deliver but possessed the larger bag without intent to deliver. The jury returned a verdict finding defendant guilty of possession of 30 to 500 grams of cannabis with intent to deliver, the trial court sentenced defendant to five years' imprisonment, and defendant timely appeals.

On appeal, defendant first argues that the State presented insufficient evidence to prove his guilt beyond a reasonable doubt. "A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt." People v. Collins, 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). When presented with a challenge to the sufficiency of the evidence, a reviewing court does not retry the defendant. Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267. Rather, the relevant question for the reviewing court "`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.) Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979).

Defendant concedes that the evidence established his possession of all of the cannabis described at trial, but he argues that there was no evidence to prove his intent to distribute the cannabis contained in the larger bag he was carrying at the time of the incident. Our supreme court has observed that "direct evidence of intent to deliver is rare" and thus that "such intent must usually be proven by circumstantial evidence." People v. Robinson, 167 Ill.2d 397, 408, 212 Ill.Dec. 675, 657 N.E.2d 1020 (1995). Types of circumstantial evidence courts have considered as indicating intent include "whether the quantity of controlled substance in the defendant's possession is too large to be viewed as being for personal consumption [citation], the high purity of the drug confiscated [citation], the possession of weapons [citation], the possession of large amounts of cash [citation], the possession of police scanners, beepers or cellular telephones [citation], the possession of drug paraphernalia [citation], and the manner in which the substance is packaged." Robinson, 167 Ill.2d at 408, 212 Ill.Dec. 675, 657 N.E.2d 1020. Defendant notes that several of these factors are not present in this case or are present in lesser degrees than in other cases: defendant was carrying no weapon, the cannabis in the large bag was not packaged for sale, and the $315 defendant was carrying was not necessarily inculpatory. See People v. Berry, 198 Ill. App.3d 24, 144 Ill.Dec. 315, 555 N.E.2d 434 (1990) (defendant found carrying over $3,000 in three different places on his person); People v. Friend, 177 Ill.App.3d 1002, 127 Ill.Dec. 537, 533 N.E.2d 409 (1988) (scale, weapons, almost $2,500 in cash, and a much larger quantity of cannabis than is at issue here found at the defendant's residence).¹ Defendant is correct that the evidence of intent to deliver was stronger in the cases he identifies. However, "[w]hether the inference of intent to deliver is sufficiently raised is determined on a case-by-case basis" (People v. Stewart, 366 Ill.App.3d 101, 110, 303 Ill.Dec. 485, 851 N.E.2d 672 (2006)), and the fact that the evidence of intent here does not have the strength of the evidence deemed sufficient in other cases does not control our result.

Although we are not limited to considering only the factors listed in Robinson, which were meant as "examples of the many factors" that courts might consider as indicating intent to deliver (People v. Bush, 214 Ill.2d 318, 327, 292 Ill.Dec. 926, 827 N.E.2d 455 (2005) (emphasis in original)), we conclude that the State presented sufficient evidence of the factors listed in Robinson to allow a rational jury to conclude in this case that defendant possessed the larger bag of cannabis with intent to deliver, despite his statement to the contrary. Aside from the fact that defendant was carrying no drug paraphernalia to enable him to consume the cannabis personally, the State emphasizes the evidence adduced regarding the quantity of drugs contained in the large bag. As the State notes, the large bag contained over 28 grams of a substance including cannabis, and the State presented expert testimony to establish that such a quantity exceeded by a factor of at least 14 the one-to-two-gram amount associated with personal use. See Robinson, 167 Ill.2d at 410-11, 212 Ill.Dec. 675, 657 N.E.2d 1020 ("the quantity of controlled substance alone can be sufficient evidence to prove an intent to deliver beyond a reasonable doubt" where "the amount of controlled substance could not reasonably be viewed as designed for personal consumption"). The State presented further expert testimony that the packaging of the large bag was indicative of intent to deliver. Defendant's only challenge to this testimony is his assertion that the State's expert witness's expertise "did not extend into the area of what most people possess," because he testified as an expert only on "street level narcotics sales." However, we view the witness's expertise on "street level narcotics sales" as including expertise on the quantities and packaging typically associated with such sales and knowledge of the factors that can distinguish whether a person is carrying drugs to sell them or for personal consumption. We conclude that the expert testimony, combined with the quantity of drugs contained in the large bag and the fact that defendant carried no paraphernalia for personal use of the drugs, provided a sufficient basis for the jury's finding beyond a reasonable doubt that defendant possessed the large bag with intent to deliver.

Def...