People v. Mocaby

• Decision Date: 31 January 2008
• Docket Number: No. 5-06-0418.,5-06-0418.
• Citation: 882 N.E.2d 1162
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joni R. MOCABY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

882 N.E.2d 1162

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Joni R. MOCABY, Defendant-Appellant.

No. 5-06-0418.

Appellate Court of Illinois, Fifth District.

January 31, 2008.

Daniel M. Kirwan, Deputy Defender, Office of the State Appellate Defender, Mt. Vernon, IL, for Appellant.

Thomas J. Dinn III, State's Attorney, Benton, Norbert J. Goetten, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Contract Attorney, Office of the State's Attorneys Appellate Prosecutor, Mt. Vernon, IL, for Appellee.

Presiding Justice STEWART delivered the opinion of the court:

Following a jury trial in the circuit court of Franklin County, the defendant, Joni R. Mocaby, was found guilty of the unlawful delivery of a controlled substance, 10 pills containing morphine (720 ILCS 570/401(d) (West 2002)); the unlawful delivery of a controlled substance, 30 pills containing diazepam (720 ILCS 570/401(g) (West 2002)); and the unlawful delivery of a controlled substance, 36 pills containing dihydrocodeinone (720 ILCS 570/401(d) (West 2002)). The trial court sentenced the defendant to 30 months' probation and ordered her to pay various fees, including $420 in restitution to the Southern Illinois Drug Task Force. The defendant raises numerous arguments on appeal. We reverse in part, vacate in part, and modify in part.

BACKGROUND

Pursuant to information from a confidential source that morphine was available for purchase at the defendant's home, Inspector Stacy Eaton of the Southern Illinois Drug Task Force, along with a confidential source, made three undercover visits to the defendant's home to purchase controlled substances. The confidential source did not testify at the trial. Eaton testified that, on each occasion, she and the confidential source went to the house unannounced.

The first visit occurred on January 27, 2003. The jury acquitted the defendant of the charge related to the drug purchase on that date.

The second visit occurred on February 3, 2003. Eaton testified that she and the confidential source asked the defendant for cocaine, but the defendant told them that the cocaine had already been sold. They then asked the defendant for pills. Eaton testified that the defendant sold her 10 morphine pills for $200.

The final visit occurred on March 4, 2003. Eaton testified that she and the confidential source again requested cocaine but that the defendant told them she did not have any. Eaton testified that the defendant offered them 30 Valium tablets for $120, which they purchased. Eaton testified that the defendant said that she had a friend coming over with Vicodin and that they decided to wait. Eaton testified that the friend had a plastic bag containing 36 Vicodin tablets, which they purchased for $100.

Thomas Sadowski, a forensic scientist at the Illinois State Police Crime Laboratory, testified that he weighed the pills purchased on February 3, 2003, compared them to a published identification system, and analyzed their chemical content with a mass spectrometer. He concluded that the pills contained morphine.

Grace Lively, a forensic scientist with the Southern Illinois Forensic Science Center, testified that she examined the pills purchased on March 4, 2003. She conducted a physical identification on the purported Valium and concluded that it contained diazepam. She conducted a physical identification and an "analytical analysis" on the purported Vicodin and concluded that it contained dihydrocodeinone.

The defendant testified on her own behalf. She denied selling the drugs at issue and denied any knowledge of those sales.

The jury convicted the defendant of the unlawful delivery on February 3, 2003, of a controlled substance, 10 pills containing morphine, in violation of section 401(d) of the Illinois Controlled Substances Act (Act) (720 ILCS 570/401(d) (West 2002)) (count II); the unlawful delivery on March 4, 2003, of a controlled substance, 30 pills containing diazepam, in violation of section 401(g) of the Act (720 ILCS 570/401 (g) (West 2002)) (count III); and the unlawful delivery on March 4, 2003 of a controlled substance, 36 pills containing dihydrocodeinone, in violation of section 401(d) of the Act (720 ILCS 570/401(d) (West 2002)) (count IV). The trial court sentenced the defendant to 30 months' probation and ordered her to pay various fees, including $420 in restitution to the Southern Illinois Drug Task Force.

The defendant filed a motion for a judgment notwithstanding the verdict or, alternatively, for a new trial, which the trial court denied. The defendant filed a timely notice of appeal.

ANALYSIS

The defendant's first argument on appeal is that her conviction on count III must be reversed because the State failed to prove that the substance at issue contained diazepam. In a criminal case, the State must prove every element of the offense beyond a reasonable doubt. People v. Cunningham, 212 Ill.2d 274, 278, 288 Ill.Dec. 616, 818 N.E.2d 304, 307 (2004). Thus, in a controlled-substance case, the State must prove "that the substance at issue is a controlled substance." People v. Hagberg, 192 Ill.2d 29, 34, 248 Ill.Dec. 273, 733 N.E.2d 1271, 1273-74 (2000). "When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Woods, 214 Ill.2d 455, 470, 293 Ill.Dec. 277, 828 N.E.2d 247, 257 (2005). This standard applies to all criminal cases, "regardless of the nature of the evidence." Cunningham, 212 Ill.2d at 279, 288 Ill.Dec. 616, 818 N.E.2d at 307. If "the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt," the conviction must be reversed. People v. Smith, 185 Ill.2d 532, 542, 236 Ill.Dec. 779, 708 N.E.2d 365, 370 (1999).

Grace Lively, a forensic scientist with the Southern Illinois Forensic Science Center, testified as follows:

"Q. What type of analysis did you perform on the contents of that bottle?

A. Well, this contained tablets that I did a physical identification on them only, and, the physical identification, I looked up the markings in a publication that we have, and it's a pharmaceutical preparation that contains [d]iazepam."

On cross-examination, Lively acknowledged that she did not perform any type of chemical analysis of the tablets.

The State has the burden of proving beyond a reasonable doubt that the tablets at issue in count III were, in fact, a controlled substance. See Smith, 185 Ill.2d at 545, 236 Ill.Dec. 779, 708 N.E.2d at 371. In People v. Ayala, 96 Ill.App.3d 880, 881, 52 Ill.Dec. 446, 422 N.E.2d 127, 128 (1981), the defendant was found in possession of two bags containing a substance the State claimed was heroin. The police chemist testified that he subjected a portion of each bag to a series of seven chemical color tests, which indicated that heroin might be present. Ayala, 96 Ill.App.3d at 881, 52 Ill.Dec. 446, 422 N.E.2d at 128. He then performed infrared and ultraviolet spectrophotometer scans on a portion of the contents of one bag. Ayala, 96 Ill. App.3d at 881, 52 Ill.Dec. 446, 422 N.E.2d at 128. These tests showed that the substance in that bag was heroin. Ayala, 96 Ill.App.3d at 881, 52 Ill.Dec. 446, 422 N.E.2d at 128. The court found that the chemical color tests were insufficient to prove beyond a reasonable doubt that the bag that was not subjected to the conclusive test also contained heroin. Ayala, 96 Ill.App.3d at 882, 52 Ill.Dec. 446, 422 N.E.2d at 129. The court stated that while an inference could be drawn that the bag contained heroin from the fact that the preliminary tests indicated heroin "might be present" and from the fact that the defendant possessed both bags with physically similar substances, that proof was not sufficient to prove the chemical content of the substance in the untested bag beyond a reasonable doubt. Ayala, 96 Ill.App.3d at 882-83, 52 Ill.Dec. 446, 422 N.E.2d at 129. The court held that the State failed to prove the defendant guilty beyond a reasonable doubt of possession of more than 30 grams of heroin because for the second bag the State had not performed the available test that would have conclusively proved the bag contained heroin. Ayala, 96 Ill.App.3d at 883, 52 Ill.Dec. 446, 422 N.E.2d at 129.

The court reached a similar conclusion in People v. Games, 94 Ill.App.3d 130, 49 Ill.Dec. 666, 418 N.E.2d 520 (1981). In that case, the defendant was found guilty of the unlawful delivery of 30 to 500 grams of cannabis. Games, 94 Ill.App.3d at 130, 49 Ill.Dec. 666, 418 N.E.2d at 520. The alleged cannabis was delivered in a single delivery of two bags. Games, 94 Ill. App.3d at 130, 49 Ill.Dec. 666, 418 N.E.2d at 520. The Illinois Department of Law Enforcement chemist testified that she visually examined and weighed both bags and that she then performed a chemical analysis of one bag. Games, 94 Ill.App.3d at 130-31, 49 Ill.Dec. 666, 418 N.E.2d at 521. She testified regarding the various tests she performed on the contents of the single bag. Games, 94 Ill.App.3d at 131, 49 Ill.Dec. 666, 418 N.E.2d at 521. She testified that, based on her analysis, both bags weighed a total of 36.7 grams and that the tested material contained cannabis. Games, 94 Ill.App.3d at 131, 49 Ill. Dec. 666, 418 N.E.2d at 521. The court held that no inference could be drawn concerning the composition of the untested bag. Games, 94 Ill.App.3d at 131, 49 Ill. Dec. 666, 418 N.E.2d at 521. The court stated:

"It is difficult not to speculate that the second bag contained cannabis. But that is not enough. The verdict must be based on evidence and not upon guess, speculation[,] or conjecture." Games, 94 Ill.App.3d at 131, 49 Ill.Dec. 666, 418 N.E.2d at 521.

People v. Solomon, 158 Ill.App.3d 432, 433, 110 Ill.Dec. 698, 511 N.E.2d 875, 876 (1987), involved...