People v. Calhoun

• Decision Date: 25 February 1977
• Docket Number: No. 76--163,76--163
• Citation: 5 Ill.Dec. 55,46 Ill.App.3d 691,361 N.E.2d 55
• Parties: , 5 Ill.Dec. 55 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ralph CALHOUN et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 55

361 N.E.2d 55

46 Ill.App.3d 691, 5 Ill.Dec. 55

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ralph CALHOUN et al., Defendants-Appellants.

No. 76--163.

Appellate Court of Illinois, Third District.

Feb. 25, 1977.

Rehearing Denied April 13, 1977.

Robert J. Agostinelli, Deputy State App. Defender, Ottawa, for defendants-appellants; Verlin R. Meinz, Ottawa, of counsel.

James E. Hinterlong, Director, Ill. State's Atty. Assn., Ottawa, Charles R. Zalar, State's Atty., Morris, for plaintiff-appellee; Robert M. Hansen Ottawa, of counsel.

STENGEL, Presiding Justice:

Defendants Ralph Calhoun, David Chapman and Jerry Wren were convicted of possessing a controlled substance (amobarbital) and possessing and manufacturing cannabis in violation of Ill.Rev.Stat.1975, ch. 56 1/2, pars. 1402(b), 704(d) and 705(d), respectively, following a jury trial in the Circuit Court of Grundy County. No conviction was entered on the cannabis possession charge because it was a lesser included offense of manufacturing but each defendant was sentenced to concurrent terms of one to three years for the two remaining convictions. The following issues are presented on appeal: (1) whether the defendants were properly found guilty of possessing a controlled substance; (2) whether the State may aggregate various lots of cannabis to determine the amount manufactured; and (3) whether soil and paper mixed in with the cannabis was properly included in determining the weight of the 'substance containing cannabis'. Defendants also raise a fourth issue relating to the trial court's refusal to honor the jury's request for a transcript.

Police Chief Ingram testified that he initiated a surveillance of an apartment in Coal City in connection with an attempted burglary of a restaurant on August 8, 1974. The surveillance, which was directed at defendant Chapman, was subsequently discontinued until August 20 or 21.

Ingram testified that from about midnight until the early morning of August 22 he and Officer Hummel resumed their surveillance of the apartment from the second floor of a building next door. Sometime during the night Chapman stepped out of the kitchen onto the back porch. When he re-entered the apartment he left the door partially open which permitted the police to survey a portion of the kitchen. From these two vantage points the officers observed each defendant enter the kitchen at various times during the night and turn or stir a green leafy plant material, which was in a bowl set underneath a heat lamp. Ingram testified that at one point Chapman entered the kitchen, placed newspaper on a scale, put substance from the bowl onto the paper and wrapped a package. He also testified that he observed the three defendants pass a cigarette among themselves. Ingram and a group of officers subsequently went to the apartment to effect arrests.

In the kitchen police saw opened and folded newspapers, plants on top of some newspapers, the bowl, and within two to five feet of the bowl, a mortar and pestle. The pestle contained a light green substance identified at the trial by Gloria Kraatz, a supervising criminalist with the Illinois Department of Law Enforcement, as amobarbital, a barbiturate and controlled substance. Elsewhere in the apartment police found a heat lamp, a gram scale, more packages of the green plant substance and a pill box allegedly containing amphetamines. There was no reference in the indictment to the amphetamines. There was also no evidence that any of the defendants touched the mortar and pestle and no fingerprints were taken from them.

At the time of arrest only the three defendants and Ralph Calhoun's young son were present at the apartment. Ingram testified that he thought Calhoun and Chapman lived in the apartment, but Vickie Calhoun, defendant Calhoun's ex-wife, testified that she was the lessee and lived alone there with her son. Defendant Calhoun explained that he was caring for his son while Vickie went to work and that the other defendants had accompanied him to her apartment for dinner. Although Chief Ingram stated that he had observed Calhoun and Chapman enter the apartment on various dates during the period of surveillance, both defendants testified they lived elsewhere. Defendant Wren was a resident of Texas.

All three defendants admitted that they saw the bowl and plant material, that they suspected the material was cannabis, and that they probably touched the bowl and its contents. Vickie Calhoun was called as a witness but refused to answer the question, 'Who did the plant material and pills belong to?' After she was given immunity from both State and federal prosecution, Vickie testified that she had told Detective Fox she felt the defendants were trying to 'frame' her. Fox testified that Vickie Calhoun also told him there were no drugs in the apartment when she left for work on the night of August 21.

Ms. Kraatz testified that the green plant material contained cannabis sativa and that the various lots of cannabis found in the apartment weighed 340.1 grams or less than one pound.

Defendants were convicted of knowingly possessing amobarbital in violation of section 1402 of the Uniform Controlled Substances Act. (Ill.Rev.Stat.1975, ch. 56 1/2, par. 1402.) In People v. Galloway (1963), 28 Ill.2d 355, 358, 192 N.E.2d 370, 372, Cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608 (1964), the supreme court stated:

'To support a conviction of the crime of unlawful possession of narcotic drugs the People msut prove not only that the accused had knowledge of the presence of the narcotics, but also that they were in his immediate possession and control.'

A person's possession of narcotics may be either actual or constructive. (People v. Kissinger (3d Dist.1975), 26 Ill.App.3d 260, 325 N.E.2d 28.) Actual possession requires an act of physical dominion over the narcotics (People v. Howard (4th Dist.1975), 29 Ill.App.3d 387, 330 N.E.2d 262), while constructive possession requires a showing that the defendant controlled the premises upon which the narcotics are found. (People v. Mosley (3d Dist.1971), 131 Ill.App.2d 722, 265 N.E.2d 889.) Mere physical proximity to the narcotics is insufficient to establish actual possession (Howard) and mere presence on the premises does not create an inference of control over them (Mosley). Furthermore, under People v. Nettles (1961),23 Ill.2d 306, 178 N.E.2d 361, proof of constructive possession requires evidence that the defendant was in control of the premises where the narcotics are found.

Whether there is possession and knowledge are both questions of fact to be determined by the jury, and its findings will not be disturbed on review unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of guilt. (People v. Galloway (1963), 28 Ill.2d 355, 192 N.E.2d 370, Cert. denied, 376 U.S. 910, 84 S.Ct. 665, 11 L.Ed.2d 608 (1964).) In this case there was no evidence that any of the defendants touched the mortar and pestle containing the controlled substance, and no fingerprints were found. The fact that defendants were seen handling the bowl containing cannabis, which was two to five feet from the mortar and pestle, shows their proximity to the amobarbital but does not establish their actual possession of it. See People v. Howard.

Moreover, while Ingram testified that he thought Chapman and Calhoun lived in the apartment, Vickie Calhoun's testimony refuted his statements. All parties agreed that Wren definitely did not live in the apartment. In addition, Calhoun and Chapman's testimony that they lived elsewhere is corroborated by the fact that none of their personal effects were in the apartment. People v. Pugh (1967), 36 Ill.2d 435, 223 N.E.2d 115.

The State offers two theories to support the controlled substance convictions. The first is that, since the defendants had actual control of the cannabis, the jury could infer their actual control of the amobarbital as well. The second contention is that once Vickie left her apartment for work the defendants had temporary control of the premises and constructive possession of the amobarbital.

The State's first theory is unpersuasive in light of the rule that the substance of one crime can not be proved by showing the substance of another crime. (People v. Allen (1937), 368 Ill. 368, 14 N.E.2d 397, Cert. denied, 308 U.S. 511, 60 S.Ct. 132, 84 L.Ed. 436; People v. James (1st Dist.1965), 62 Ill.App.2d 225, 210 N.E.2d 804.) The State cannot prove constructive possession of amobarbital by evidence of actual possession of cannabis.

In connection with its second contention, the State seeks to distinguish the cases of People v. Pugh (1967), 36 Ill.2d 435, 223 N.E.2d 115, and People v. Heerwagen (3d Dist.1975), 30 Ill.App.3d 144, 332 N.E.2d 136, on the basis that the defendants in those cases were passively present, while the...