People v. Gallagher

Decision Date25 January 1990
Docket Number3-89-0175 and 3-89-0176,Nos. 3-89-0174,s. 3-89-0174
Citation550 N.E.2d 255,140 Ill.Dec. 619,193 Ill.App.3d 566
Parties, 140 Ill.Dec. 619 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Horace GALLAGHER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Gary F. Gnidovec, States' Attys. Appellate Prosecutor, Ottawa, Marshall E. Douglas State's Atty., Rock Island, for the People.

Stephen Omolecki, Office of the State Appellate Defender, Ottawa, for Horace Gallagher.

Justice WOMBACHER delivered the opinion of the court:

A jury found the defendant, Horace Gallagher, guilty of unlawful possession of a controlled substance (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1402(b)). The trial court simultaneously conducted a probation revocation hearing, after which it revoked the defendant's sentences of probation imposed following prior convictions for unlawful delivery of a controlled substance (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(c)). He was subsequently sentenced to a one-year term of imprisonment for the unlawful possession conviction and concurrent terms of four years' imprisonment for the prior unlawful delivery convictions. The defendant appeals his conviction for unlawful possession and the revocation of his probation in the two prior cases. The cases have been consolidated on appeal.

The record reveals that on October 28, 1986, the defendant was charged with two counts of unlawful delivery of a controlled substance (Ill.Rev.Stat.1985, ch. 56 1/2, par. 1401(c)). On that same day he was also charged in a separate case with three counts of unlawful delivery of a controlled substance. The defendant subsequently pled guilty to one count of unlawful delivery in the first case and two counts of unlawful delivery in the second. He was then sentenced to four-year terms of probation on each of the three convictions.

On August 12, 1988, the State charged the defendant with unlawful possession of a controlled substance (Ill.Rev.Stat.1987, ch. 56 1/2, par. 1402(b)). The State then filed a petition to revoke the defendant's probation in the prior cases, based upon the unlawful possession charge (Ill.Rev.Stat.1987, ch. 38, par. 1005-6-4(a)).

At the defendant's jury trial, the State's uncontroverted evidence showed that on August 11, 1988, the Rock Island Police Department executed a search warrant at the defendant's home. The officers knocked on the front door and after receiving no response, forced the door open and entered the house. Inside, they found a woman in the kitchen and another woman in a spare room. The defendant was in the adjoining bathroom. In a bedroom, the police found a nightstand with a safe on top of it. Lying on top of the safe was a broken mirror with a small amount of cocaine and heroin on it. Also found on the safe was a plastic scale and an aluminum foil package containing a small amount of cocaine and heroin.

Inside the safe, the officers found two hypodermic needles and a vehicle registration card with the defendant's name and address on it. Two additional hypodermic needles were found in a drawer of the nightstand. The woman in the spare room also had a needle. When the officers questioned the defendant at his house, he denied any knowledge of the drugs.

The defendant presented no witnesses, but did roll up his shirt sleeves and pants to show the jury that he had no "tracks" or needle marks on his body. The jury subsequently found the defendant guilty. The trial court found that the defendant had violated his probation.

At his sentencing hearing, the defendant testified that he did not know anything about the drugs. He explained that his girlfriend, who was one of the women in the house, was a drug user.

On appeal, the defendant argues that the State failed to prove that he possessed the drugs, since there were two other people in the house at the time the drugs were found and the evidence showed that one of them was a drug user.

To obtain a conviction for the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the drug and that it was in his immediate and exclusive control. (People v. Nettles (1961), 23 Ill.2d 306, 178 N.E.2d 361.) Possession may be established by evidence of actual physical possession or constructive...

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12 cases
  • People v. Hernandez
    • United States
    • United States Appellate Court of Illinois
    • May 29, 1992
    ...... (People v. Gallagher (1990), 193 Ill.App.3d 566, 140 Ill.Dec. 619, 550 N.E.2d 255.) Upon review, the fact finder's role as weigher of the evidence is preserved by considering all the evidence in the light most favorable to the prosecution. The relevant question is, after viewing the evidence in this manner, whether ......
  • People v. Maiden
    • United States
    • United States Appellate Court of Illinois
    • March 1, 1991
    ...unreasonable, improbable, or unsatisfactory as to create a reasonable doubt as to the defendant's guilt. People v. Gallagher (1990), 193 Ill.App.3d 566, 140 Ill.Dec. 619, 550 N.E.2d 255. Defendant Rayford maintains that a reasonable doubt exists as to whether defendant Rayford controlled th......
  • People v. Janis
    • United States
    • United States Appellate Court of Illinois
    • December 28, 1992
    ...(People v. Trask (1988), 167 Ill.App.3d 694, 707, 118 Ill.Dec. 529, 538, 521 N.E.2d 1222, 1231; see also People v. Gallagher (1990), 193 Ill.App.3d 566, 140 Ill.Dec. 619, 550 N.E.2d 255 (constructive possession proved in same way); People v. Morrison (1988), 178 Ill.App.3d 76, 127 Ill.Dec. ......
  • People v. Eiland
    • United States
    • United States Appellate Court of Illinois
    • July 26, 1991
    ...... To obtain a conviction for [217 Ill.App.3d 260] the unlawful possession of a controlled substance, the State must prove that the defendant had knowledge of the presence of the drugs and that the drugs were in his immediate possession and control. (People v. Gallagher (1990), 193 Ill.App.3d 566, 569, 140 Ill.Dec. 619, 620, 550 N.E.2d 255, 256; People v. Evans (1986), 143 Ill.App.3d 236, 238, 97 Ill.Dec. 377, 379, 492 N.E.2d 1036, 1038.) Possession may be established by evidence of actual physical possession or constructive possession. Constructive possession ......
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