People v. McLemore, 5-88-0494

• Court: United States Appellate Court of Illinois
• Citation: 203 Ill.App.3d 1052,149 Ill.Dec. 187,561 N.E.2d 465
• Docket Number: No. 5-88-0494,5-88-0494
• Parties: , 149 Ill.Dec. 187 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Alma McLEMORE, Defendant-Appellant.
• Decision Date: 09 October 1990

Page 465

561 N.E.2d 465 203 Ill.App.3d 1052, 149 Ill.Dec. 187 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Alma McLEMORE, Defendant-Appellant. No. 5-88-0494. Appellate Court of Illinois,
Fifth District. Oct. 9, 1990.

Page 466

[203 Ill.App.3d 1053] [149 Ill.Dec. 188] Daniel M. Kirwan, Deputy Defender, Michelle A. Zalisko, Asst. Defender, Office of the State Appellate Defender, Mt. Vernon, for defendant-appellant.

Don Sheafor, State's Atty., Vandalia, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Raymond F. Buckley, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mt. Vernon, for plaintiff-appellee.

Justice CHAPMAN delivered the opinion of the court:

Alma McLemore was convicted by a jury of failing to report to a penal institution and possession of a controlled substance with the intent to deliver. The trial court granted her motion for a new trial on the first charge. The State subsequently moved to nolle prosequi that [203 Ill.App.3d 1054] charge, and the court allowed the motion on September 2, 1988. Defendant was fined $330 and was sentenced to 12 years in the Department of Corrections on the possession with intent to deliver with the sentence to be served consecutively to the sentence she was already serving.

Defendant raises five issues on appeal:

1. Whether the State failed to prove the defendant guilty beyond a reasonable doubt of possession of a controlled substance with the intent to deliver, because it failed to prove that defendant knew the substance was cocaine or that she had the intent to deliver?

2. Whether the defendant was denied the effective assistance of counsel when trial counsel failed to move to sever the charges, did not object to irrelevant evidence, and did not object to the State's improper closing argument?

3. Whether a sentence of twelve years' incarceration is excessive since it fails to reflect the defendant's drug and alcohol abuse problems, and no proper aggravating factors support the sentence?

4. Whether the street value fine must be vacated because the evidence was insufficient to establish the value of the substance in question in this case?

5. Whether the defendant is entitled to credit of 146 days against her sentence for time spent in custody while awaiting trial?

In view of the trial court's disposition of the failure to report charge, the evidence relating to it will be discussed only briefly, but a more complete recitation of the evidence on the second charge is necessary since the defendant claims the State failed to prove her guilt beyond a reasonable doubt.

Shortly after noon on February 17, 1988, Trooper David Crackle stopped a car containing the defendant and three young males on Interstate Highway 57 at approximately milepost 134 which is near Farina in Fayette County. Trooper Crackle stopped the car because of a radio dispatch he had received concerning the defendant's failure to appear at a penal institution. After backup officers arrived, the defendant was arrested and handcuffed. Trooper Marla Sapp conducted a pat-down search of the defendant during which the defendant leaned over the hood of the squad car. Four or five one hundred dollar bills were found on defendant during this search. The defendant testified that she leaned over the car during the search because she was hyperventilating due to an angina problem and that Trooper Sapp told her [203 Ill.App.3d 1055] it was all right to do so. Trooper Sapp denied that she gave the defendant permission to lean over the car and testified that she had instead told the defendant to stand up so that she could be searched. After the search the defendant requested permission to lie on the ground and this was granted. She laid on the ground on her

Page 467

[149 Ill.Dec. 189] left side for approximately ten or fifteen minutes and was then placed in the police car. While sitting in the police car the defendant asked the troopers to check her handcuffs because they were too tight. While Trooper Sapp was checking the handcuffs, she found a Newport cigarette box with no top in the left front pocket of the defendant's bluejean vest. Trooper Sapp examined the cigarette box and found fifteen packets containing a white substance. The packets were subsequently analyzed and found to contain a total of 3.3 grams (approximately one-eighth ounce) of cocaine. Defendant testified that she smoked Kool cigarettes and that one of the other occupants of the car, Darrell Williamson, had given her the Newport box during the trip. She also stated that she had placed the Newport box in her vest pocket without looking at it and she had no knowledge that it contained cocaine.

Vergil Derrick Carson, another occupant of the car, testified that he had seen Darrell Williamson with a Newport cigarette pack before they started their trip although he did not actually see Williamson give the Newport box to defendant.

The defendant first argues that the State failed to prove her guilty beyond a reasonable doubt of either possession of cocaine or of possession with the intent to deliver the cocaine. We have examined the record and find that the evidence supports the jury's finding of guilt of possession, but we further find that the State failed to prove intent to deliver. The evidence established that the defendant had 3.3 grams of cocaine on her person which establishes possession. (People v. Hester (1980), 87 Ill.App.3d 50, 42 Ill.Dec. 611, 409 N.E.2d 106.) While defendant denied any knowledge that there was cocaine in the Newport box, the jury was not required to accept her testimony. (People v. Lahori (1973), ...