People v. Love

• Decision Date: 07 October 2010
• Docket Number: No. 2-08-1002.,2-08-1002.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrell L. LOVE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

937 N.E.2d 752

404 Ill.App.3d 784

344 Ill.Dec. 729

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Terrell L. LOVE, Defendant-Appellant.

No. 2-08-1002.

Appellate Court of Illinois, Second District.

Oct. 7, 2010.

Gary R. Peterson, Deputy Defender, Karen Munoz, Deputy Defender (Court-appointed), Office of the State Appellate Defender, Springfield, for Terrell L. Love.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, Marshall M. Stevens, State's Attorney Appellate Prosecutor, Elgin, for the People.

Justice JORGENSEN delivered the opinion of the court:

[344 Ill.Dec. 730, 404 Ill.App.3d 784]

Pursuant to a plea agreement, defendant, Terrell L. Love, pleaded guilty to robbery (720 ILCS 5/18-1(a) (West 2006)) in exchange for four years of probation. As a condition of his probation, defendant wasordered not to violate any criminal statutes or ordinances of any jurisdiction. While defendant was on probation, he was arrested for unlawful possession of cannabis with the intent to deliver (720 ILCS 550/5(c) (West 2006)), armed violence (720 ILCS 5/33A-2 (West 2006)), and unlawful use of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2006)). The State petitioned to revoke defendant's probation (730 ILCS 5/5-6-4 (West 2008)).¹ The trial court granted the petition and sentenced defendant to six years' imprisonment. Defendant timely appeals, claiming that the State failed to prove that he violated the terms of his probation. We affirm.

The relevant evidence presented at the probation revocation hearing consisted of the following. Officer Dennis Hill testified that he was working with the Winnebago

[344 Ill.Dec. 731, 937 N.E.2d 754]

County sheriff's department on November 10, 2007. At approximately 12:15 a.m., he was on patrol when he stopped a car that had an obstructed windshield. Hill observed that there were three people in the car. Marcus Jones was driving the car, Elliot Cozzi was the front-seat passenger, and defendant was sitting in the backseat, behind Jones. As Hill approached the car, he saw that the driver's window was lowered approximately halfway, and Hill detected a strong odor of cannabis emanating from inside the car. Because Hill detected the smell of cannabis, he asked Jones to exit the car. Before Jones got out of the car, Jones placed his hand under the driver's seat.

Jones was placed in the back of Hill's squad car, as Hill was preparing to do a search of the car. Hill then asked defendant and Cozzi to exit the car. Although defendant exited the car before the search began, Cozzi, who was disabled and unable to walk or stand on his own, remained in the car until a person he contacted arrived. Hill frisked Cozzi to determine whether he was armed, but Hill did not pat Cozzi down in an attempt to see whether he was in possession of a controlled substance.

Before defendant exited the car, Hill saw in the backseat Cozzi's wheelchair and various articles of clothing. When defendant exited the car, Hill noticed a brown paper bag sitting on the backseat. Hill statedthat the paper bag "was in a laid down position with like the top just folded over." The paper bag was folded over once and it was lying on its "long and wide side." Hill also testified that "if [defendant] was sitting on the seat, [the paper bag] would have been underneath his [right] thigh." Hill demonstrated for the court where the paper bag was located in relation to defendant's thigh, and the court clarified for the record that "[Hill] is indicating his hand is placed under the mid portion of his right thigh." ² Given the location of the paper bag, Hill did not see the paper bag when he initially approached the car on the driver's side. Inside the paper bag was a handgun and cannabis. The cannabis was loose inside the paper bag and weighed 31.1 grams.

Although a handgun was discovered between the driver's seat and the center console and baggies of cannabis were found inside the console, under the driver's seat, and inside one of Jones's shoes, no contraband other than that in the paper bag was found in the backseat, and Hill noted in his report that defendant did not smell of cannabis. Hill also did not find any remnants of burnt cannabis in the car, and he never saw defendant holding the paper bag, any of the cannabis, or either weapon. When defendant was asked about the guns and the cannabis, he claimed that he did not know that any of those items were in the car.

For the most part, defendant testified consistently with Hill. However, defendant also testified that on November 9, 2007, he talked to Jones on the phone at approximately 11 p.m. Defendant asked Jones if he could give defendant a ride to the gas station to buy cigarettes. Jones arrived at defendant's house at 11:15 p.m. Before getting in the backseat of Jones's car, defendant noticed Cozzi's wheelchair behind the front passenger seat. Various other items, including a jacket, a sweater, and tennis shoes, were also lying on the backseat. Defendant pushed these items out of the way so that he could sit down on the backseat. Although defendant did not

[344 Ill.Dec. 732, 937 N.E.2d 755]

disagree that the brown paper bag was probably sitting on the backseat, he testified that he never saw it. Moreover, although defendant asserted that he does not smoke cannabis, he admitted that he knows what burnt cannabis smells like, and he did not smell burnt cannabis in the car that night. Further, defendant denied knowing that there was cannabis in the car, having the paper bag under his thigh when Hill approached the car, and bringing into the car the paper bag, either gun, or any of the cannabis.

The trial court granted the petition to revoke defendant's probation. In doing so, the trial court noted that the brown paper bag, which was admitted into evidence, was smaller than a grocery bag but bigger than a brown paper lunch bag. More specifically, the court found that the bag measured about 10 inches across and 2 feet long. Concerning the gun that was discovered in the paper bag, the court found that the barrel measured 4 1/2 to 5 inches in length, that the grip of the gun was 3 to 3 1/2 inches long, and that the height of the gun's slide was 1 inch. Additionally, after recounting to what Hill and defendant testified, the court found Hill more credible than defendant. Thus, the court found that, because defendant was at least partially sitting on the bag, he was in actual possession of the bag. The court asserted that defendant knew what was in the bag, because defendant could not sit or partially sit on the bag, which contained the steel gun and cannabis, without knowing on what he was sitting.

At issue in this appeal is whether the State proved that defendant violated the terms of his probation. At probation revocation proceedings, the State is required to prove a probation violation by a preponderance of the evidence. 730 ILCS 5/5-6-4(c) (West 2006); People v. Jones, 377 Ill.App.3d 506, 508, 315 Ill.Dec. 942, 878 N.E.2d 168 (2007). A proposition is proved by a preponderance of the evidence when the proposition is more probably true than not true. People v. Drake, 131 Ill.App.3d 466, 472, 86 Ill.Dec. 639, 475 N.E.2d 1018 (1985). In evaluating whether the State met its burden, the trial judge is free to resolve inconsistencies in the testimony and to accept or reject as much of each witness's testimony as the judge pleases. See People v. Howard, 376 Ill.App.3d 322, 329, 315 Ill.Dec. 36, 876 N.E.2d 36 (2007). Because the trial judge is in a superior position to weigh the evidence and decide on the credibility of the witnesses, we may not reverse the judgment merely because we might have reached a different conclusion. See People v. Houston, 118 Ill.2d 194, 200, 113 Ill.Dec. 77, 514 N.E.2d 989 (1987). Rather, we will reverse the court's judgment revoking a defendant's probation only if it is against the manifest weight of the evidence. People v. Colon, 225 Ill.2d 125, 158, 310 Ill.Dec. 396, 866 N.E.2d 207 (2007). A finding is against the manifest weight of the evidence only if the opposite result is clearly evident. People v. Keller, 399 Ill.App.3d 654, 662, 339 Ill.Dec. 415, 926 N.E.2d 890 (2010). Thus, even where the State's evidence is slight, we must affirm the revocation of a defendant's probation as long as the opposite conclusion is not clearly evident. See, e.g., People v. Matthews, 165 Ill.App.3d 342, 343-45, 116 Ill.Dec. 536, 519 N.E.2d 126 (1988) (in case where security officer testified only that he saw the defendant put on a jacket and leave the store without paying for it, reviewing court affirmed the revocation of the defendant's probation, because, even though evidence that the defendant violated his probation by committing a retail theft was scant, a conclusion that the defendant did not commit the crime was not clearly evident).

[937 N.E.2d 756, 344 Ill.Dec. 733, 404 Ill.App.3d 788]

Here, defendant does not dispute that the paper bag was found in the backseat, that the paper bag contained a weapon and cannabis, or that he was a convicted felon. Rather, defendant argues that the State failed to prove that he was in possession of either the gun or the cannabis. Both defendant and the State agree that, if the evidence did not establish by a preponderance that defendant was in possession of the gun and cannabis found in the paper bag, defendant's probation should not have been revoked.

Because possession is often difficult to prove directly, proving possession frequently rests upon circumstantial evidence. See People v. Eghan, 344 Ill.App.3d 301, 307, 279 Ill.Dec. 223, 799 N.E.2d 1026 (2003). In a case based on circumstantial evidence, each link in the chain of circumstances does not need to be proved by a preponderance of the evidence if all the evidence considered collectively satisfies the trier of fact by a preponderance of the evidence that the defendant is guilty. See People v. Hall, 194 Ill.2d 305, 330, 252 Ill.Dec. 653, ...