People v. Howard
| Decision Date | 19 June 1975 |
| Docket Number | No. 12644,12644 |
| Citation | 330 N.E.2d 262,29 Ill.App.3d 387 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cynthia Grace HOWARD, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Walwyn M. Trezise, Fairbury, for defendant-appellant.
Paul R. Welch, State's Atty., McLean County, Bloomington, for plaintiff-appellee; G. Michael Prall, Principal Atty., Ill. State's Attys. Ass'n, Statewide Appellate Assistance Service, Kai A. Wallis, Staff Atty., Bloomington, of counsel.
On January 9, 1974, defendant, Cynthia Howard, was found guilty of possession of more than 30 and less than 500 grams of marijuana in a bench trial. She received a sentence of 18 months conditional discharge.
One of the issues on appeal is whether defendant was proven guilty beyond a reasonable doubt. In view of our disposition of this issue, the other issue raised by defendant, a search and seizure issue, need not be discussed. Recital of the facts is limited to those relevant on the issue of reasonable doubt.
On May 17, 1972, several police officers entered Room 220 in the Regal 8 Motel in Bloomington, Illinois. The testimony of all the officers was consistent. There were three persons in the room. One person, John Fields, was sitting on one of the two beds. He was opposite Ms. Howard, who was sitting on the other bed near the headboard. On the same bed, near the foot, was sitting Donald Burton, to whom the room was registered. A small plastic bag of a substance that was subsequently determined to be marijuana was on the bed between the headboard and Ms. Howard. This bag was approximately six inches to one foot from her. On the bed, between Ms. Howard and Mr. Burton, was a brass pipe and some papers.
Defendant contends that this evidence is insufficient to prove her guilty of possession beyond a reasonable doubt. We agree.
The State must establish two elements in order to obtain a conviction for unlawful possession of narcotics. The first is the knowledge of defendant of the presence of narcotics. The second is immediate and exclusive control. People v. Nettles, 23 Ill.2d 306, 178 N.E.2d 361.
Knowledge of the location of narcotics, although an element, is not the equivalent of possession. People v. Jackson, 23 Ill.2d 360, 178 N.E.2d 320.
Possession can be either actual or constructive. If the State provesthat defendant has control of the premises, it is permissible to infer that defendant has control of the narcotics and this is constructive possession. It is because of the difficulties of proving actual possession, that the doctrine of constructive possession was formulated. People v. Connie, 52 Ill.App.2d 221, 201 N.E.2d 641. The State acknowledges that constructive control is not an issue in this case and that the State must prove actual possession.
Although the State argues that personal physical possession need not be shown in order to prove control, they cite cases discussing the constructive possession doctrine.
Actual possession is proved by testimony which shows that defendant has exercised some dominion over the unlawful substance. People v. Jackson, Supra. The act of dominion may be that defendant had the substance on his body, that he tried to conceal it, that he was seen throwing it away. In the case at bar, the testimony reveals only that three persons were in a room, that there was some marijuana there and that defendant was closest to it. Mere proximity is not sufficient evidence of actual possession. People v. Washington, 17 Ill.App.3d 383, 308 N.E.2d 339; People v. Robinson, 102 Ill.App.2d 171, 243 N.E.2d 594; 91 A.L.R.2d 810.
In the Robinson case, the police had testified that an informant told them he received narcotics from a man named 'Preacher' and that the police could find him in the bathroom of a certain apartment. The police found narcotics and two persons, one the defendant 'Preacher' in the bathroom and two other persons in the...
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